1. The present revision petition is directed against the judgment dated 08.07.2009/10.11.2009, passed by learned Additional Sessions Judge, Solan, District Solan (H.P.) (learned Appellate Court) vide which the appeal filed by the respondent- State against the judgment dated 23.01.2008, passed by learned Judicial Magistrate First Class, Nalagarh, District Solan (learned Trial Court) was allowed, and the petitioner No.1 (accused No.1 before learned Trial Court) was convicted of the commission of offences punishable under Sections 279, 201, 323 & 506 read with Section 34 of the Indian Penal Code (for short IPC) and petitioners No. 2 to 4 (accused No. 2 to 4 before learned Trial Court) were convicted of the commission of offences punishable under Sections 201, 323 & 506 read with Section 34 of IPC and the order dated 10.11.2009, vide which they were ordered to be released on probation for one year. (The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).
2. Briefly stated, the facts giving rise to the present appeal are that the police presented a challan against the accused before the learned Trial Court for the commission of offences punishable under Sections 279, 323, 201 & 506 of IPC read with Section 34 of IPC. It was asserted that the informant- Man Singh Chandel (PW5), and his wife Kamlesh Chandel (PW6), were walking on Brahman Beli Road at about 07:00 pm. A vehicle bearing registration No. CH-01-W-4586 came at high speed and attempted to crush the informant. The informant and his wife jumped towards the fields, however, the informant’s dog sustained injuries. The driver stopped the vehicle. The informant told the driver that he had almost killed his pet dog. The driver of the vehicle, along with other companions, came out and started beating the informant. They pushed him in a Khud. When the informant’s wife tried to rescue him, the accused persons also pushed her. The informant sustained injuries. The informant could identify the assailants as they were residing in the same area. The matter was reported to police by way of an application (Ex-PW5/A). An FIR (Ex-PW8/A) was registered at the police station. H.C. Prem Lal (PW7) conducted the investigation. He visited the spot and prepared the site plan (Ex-PW7/A). He seized the vehicle vide seizure memo (Ex-PW7/B). He filed an application for conducting the informant’s medical examination. Dr Bhupesh Gupta (PW4) conducted the medical examination of the informant and found that he had sustained simple injuries which could have been caused by fist blows. He issued the MLC (Ex-PW4/A). Prem Lal (PW7) also filed an application for conducting the medical examination of the dog. Subash (PW2) conducted the medical examination of the dog. He found that the dog had sustained injuries, which could have been caused by a motor vehicle accident. The mechanical examination of the vehicle was conducted by Shyam Lal (PW3), who found that there was no mechanical defect in the vehicle which could have led to the accident. He issued a report (Ex-PW3/A). Statements of witnesses were recorded as per their version. After the completion of the investigation, the challan was prepared and presented before the learned trial Court.
3. The learned trial Court put the notice of acquisition to accused No.1- Sewa Singh for the commission of offences punishable under Sections 323, 506 and 279 read with Section 34 of IPC and Section 187 of Motor Vehicles Act. The notice of acquisition was put to the other accused for the commission of offences punishable under Sections 323 and 506, read with Section 34 of IPC. The accused pleaded not guilty and claimed to be tried.
4. The prosecution examined eight witnesses to prove its case. Gurpal Singh (PW1) did not support the prosecution case. Dr. Subash (PW2) medically examined the dog. Shyam Lal (PW3) conducted the mechanical examination of the vehicle. Dr. Bhupesh Gupta (PW4) examined the informant. Man Singh Chandel (PW5) is the informant, and Kamlesh (PW6) is his wife and an eyewitness. Prem Lal (PW7) conducted the investigation. Om Parkash (PW8) signed the FIR.
5. The accused, in their statements recorded under Section 313 of Cr.P.C, denied the prosecution case in its entirety. They claimed that a false case was made against them by the informant. No defence was sought to be adduced by the accused.
6. The learned Trial Court held that the accused were not named by the informant in the application made to the police. He stated that he could identify the accused. However, no test identification parade was conducted to ascertain whether the accused were the persons who had given beatings to the informant. The recovery of the car was also not proved satisfactorily as Gurpal Singh (PW1) did not support the prosecution case. The incident was stated to have been witnessed by Jagat Ram, however, he was not examined. The injuries sustained by the informant could have been caused by a fall. These circumstances made the prosecution case highly doubtful. Hence, the learned trial Court acquitted the accused.
7. Being aggrieved from the judgment passed by the learned Trial Court, the State preferred an appeal, which was decided by learned Additional Sessions Judge Nalagarh, District Solan (H.P) (learned appellate Court). Learned Appellate Court held that the testimony of the informant was corroborated by the injuries sustained by him and his dog. The suggestions given by the accused to the prosecution witnesses showed that they had not disputed their presence on the spot. The informant also stated that he had seen the accused subsequently because they had visited him to apologise regarding the incident. The testimony of the informant regarding the identity could not be ignored. Accused No.1- Sewa Singh was driving the vehicle in a rash and negligent manner to endanger human life. All the accused had given beatings to the informant and his wife. They had run away from the spot and thereby caused the disappearance of the evidence. Hence, the accused were convicted and sentenced as aforesaid.
8. Being aggrieved from the judgment passed by the learned appellate Court, the petitioners have filed the present petition asserting that the learned Appellate Court erred in convicting the accused. The learned Appellate Court had no jurisdiction to hear and entertain the appeal, and the judgment was wrongly passed by the learned appellate Court. No injury was caused to the informant or his wife. Accused No.1- Sewa Singh could not have been convicted of the commission of an offence punishable under Section 279 of IPC. The identity of the accused was not established. Learned Trial Court had rightly doubted the prosecution case for want of identification parade. Jagat Ram was also not examined, and the learned Trial Court had rightly drawn an adverse inference against the prosecution. The learned Appellate Court had not dispelled the reasons given by the learned Trial Court before reversing the judgment passed by it. The incident had taken place towards the left side of the road, and the driver was supposed to drive the vehicle towards the left side of the road. The conviction recorded by the learned Appellate Court is not proper. Therefore, it was prayed that the present revision petition be allowed and the judgment passed by the learned Appellate Court be set aside.
9. I have heard Mr. Bhisham Sharma, learned counsel for petitioner No. 2 and Mr. Lokender Kutlehria, learned Additional Advocate General, for the respondent-State.
10. Mr. Bhisham Sharma, learned counsel for petitioner No.2, submitted that the learned Trial Court had given cogent reasons while acquitting the accused. Learned Appellate Court could not have reversed the judgment simply because the other view was possible. No perversity in the judgment was shown. Therefore, he prayed that the present appeal be allowed and the judgment passed by the learned Appellate Court be set aside.
11. Mr. Lokender Kutlehria, learned Additional Advocate General for the respondent-State, supported the judgment passed by the learned Appellate Court and submitted that no interference is required with it.
12. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.
13. It was laid down by the Hon’ble Supreme Court in Malkeet Singh Gill v. State of Chhattisgarh, (2022) 8 SCC 204: (2022) 3 SCC (Cri) 348: 2022 SCC OnLine SC 786 that the revisional court is not an appellate jurisdiction and it can only rectify the patent defect, errors of jurisdiction or the law. It was observed on page 207:-
“10. Before adverting to the merits of the contentions, at the outset, it is apt to mention that there are concurrentfindings of conviction arrived at by two courts after a detailed appreciation of the material and evidence brought on record. The High Court in criminal revision against conviction is not supposed to exercise the jurisdiction like to the appellate court and the scope of interference in revision is extremely narrow. Section 397 of the Criminal Procedure Code (in short “CrPC”) vests jurisdiction to satisfy itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court. The object of the provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error which is to be determined on the merits of individual cases. It is also well settled that while considering the same, the Revisional Court does not dwell at length upon the facts and evidence of the case to reverse those findings.
14. This position was reiterated in State of Gujarat v. Dilipsinh Kishorsinh Rao, 2023 SCC OnLine SC 1294 wherein it was observed:
“13. The power and jurisdiction of the Higher Court under Section 397 Cr. P.C. which vests the court with the power to call for and examine records of an inferior court is for the purposes of satisfying itself as to the legality and regularities of any proceeding or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law or the perversity which has crept into such proceedings. It would be apposite to refer to the judgment of this court in Amit Kapoor v. Ramesh Chandra, (2012) 9 SCC 460 where the scope of Section 397 has been considered and succinctly explained as under:
“12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error and it may not be appropriate for the court to scrutinise the orders, which upon the face of it bear a token of careful consideration and appear to be in accordance with the law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes but are merely indicative. Each case would have to be determined on its own merits.
13. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex-facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with the law in a given case, it may be reluctant to interfere in the exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even framing of charge is a much-advanced stage in the proceedings under the CrPC.”
15. The present revision has to be decided as per the parameters laid down by the Hon’ble Supreme Court.
16. The learned Appellate Court was dealing with an appeal against the acquittal recorded by the learned Trial Court. It was laid down by the Hon’ble Supreme Court in Mallappa v. State of Karnataka, (2024) 3 SCC 544: 2024 SCC OnLine SC 130 that while deciding an appeal against acquittal, the High Court should see whether the evidence was properly appreciated on record or not; second whether the finding of the Court is illegal or affected by the error of law or fact and thirdly; whether the view taken by the Trial Court was a possible view, which could have been taken based on the material on record. The Court will not lightly interfere with the judgment of acquittal. It was observed:
“25. We may first discuss the position of law regarding the scope of intervention in a criminal appeal. For that is the foundation of this challenge. It is the cardinal principle of criminal jurisprudence that there is a presumption of innocence in favour of the accused unless proven guilty. The presumption continues at all stages of the trial and finally culminates into a fact when the case ends in acquittal. The presumption of innocence gets concretised when the case ends in acquittal. It is so because once the trial court, on appreciation of the evidence on record, finds that the accused was not guilty, the presumption gets strengthened, and a higher threshold is expected to rebut the same in appeal.
26. No doubt, an order of acquittal is open to appeal, and there is no quarrel about that. It is also beyond doubt that in the exercise of appellate powers, there is no inhibition on the High Court to reappreciate or re-visit the evidence on record. However, the power of the High Court to reappreciate the evidence is a qualified power, especially when the order under challenge is of acquittal. The first and foremost question to be asked is whether the trial court thoroughly appreciated the evidence on record and gave due consideration to all material pieces of evidence. The second point for consideration is whether the finding of the trial court is illegal or affected by an error of law or fact. If not, the third consideration is whether the view taken by the trial court is a fairly possible view. A decision of acquittal is not meant to be reversed on a mere difference of opinion. What is required is an illegality or perversity.
27. It may be noted that the possibility of two views in a criminal case is not an extraordinary phenomenon. The “two-views theory” has been judicially recognised by the courts, and it comes into play when the appreciation of evidence results in two equally plausible views. However, the controversy is to be resolved in favour of the accused. For, the very existence of an equally plausible view in favour of the innocence of the accused is in itself a reasonable doubt in the case of the prosecution. Moreover, it reinforces the presumption of innocence. Therefore, when two views are possible, following the one in favour of the innocence of the accused is the safest course of action. Furthermore, it is also settled that if the view of the trial court, in a case of acquittal, is a plausible view, it is not open for the High Court to convict the accused by reappreciating the evidence. If such a course is permissible, it would make it practically impossible to settle the rights and liabilities in the eye of the law.
28. In Selvaraj v. State of Karnataka [Selvaraj v. State of Karnataka, (2015) 10 SCC 230: (2016) 1 SCC (Cri) 19]: (SCC pp. 236-37, para 13)
“13. Considering the reasons given by the trial court and on an appraisal of the evidence, in our considered view, the view taken by the trial court was a possible one. Thus, the High Court should not have interfered with the judgment of acquittal. This Court in Jagan M. Seshadri v. State of T.N. [Jagan M. Seshadri v. State of T.N., (2002) 9 SCC 639: 2003 SCC (L&S) 1494] has laid down that as the appreciation of evidence made by the trial court while recording the acquittal is a reasonable view, it is not permissible to interfere in appeal. The duty of the High Court while reversing the acquittal has been dealt with by this Court, thus: (SCC p. 643, para 9)
‘9. … We are constrained to observe that the High Court was dealing with an appeal against acquittal. It was required to deal with various grounds on which acquittal had been based and to dispel those grounds. It has not done so. Salutary principles while dealing with appeals against acquittal have been overlooked by the High Court. If the appreciation of evidence by the trial court did not suffer from any flaw, as indeed none has been pointed out in the impugned judgment, the order of acquittal could not have been set aside. The view taken by the learned trial court was a reasonable view, and even if by any stretch of the imagination, it could be said that another view was possible, that was not a ground sound enough to set aside an order of acquittal.’”
29. In Sanjeev v. State of H.P. [Sanjeev v. State of H.P., (2022) 6 SCC 294: (2022) 2 SCC (Cri) 522], the Hon'ble Supreme Court analysed the relevant decisions and summarised the approach of the appellate court while deciding an appeal from the order of acquittal. It observed thus: (SCC p. 297, para 7)
“7. It is well settled that:
7.1. While dealing with an appeal against acquittal, the reasons which had weighed with the trial court in acquitting the accused must be dealt with in case the appellate court is of the view that the acquittal rendered by the trial court deserves to be upturned (see Vijay Mohan Singh v. State of Karnataka [Vijay Mohan Singh v. State of Karnataka, (2019) 5 SCC 436 : (2019) 2 SCC (Cri) 586] and Anwar Ali v. State of H.P. [Anwar Ali v. State of H.P., (2020) 10 SCC 166 : (2021) 1 SCC (Cri) 395] ).
7.2. With an order of acquittal by the trial court, the normal presumption of innocence in a criminal matter gets reinforced (see Atley v. State of U.P. [Atley v. State of U.P., 1955 SCC OnLine SC 51: AIR 1955 SC 807]).
7.3. If two views are possible from the evidence on record, the appellate court must be extremely slow in interfering with the appeal against acquittal (see Sambasivan v. State of Kerala [Sambasivan v. State of Kerala, (1998) 5 SCC 412: 1998 SCC (Cri) 1320]).”
17. This position was reiterated in Ramesh v. State of Karnataka, (2024) 9 SCC 169: 2024 SCC OnLine SC 2581, wherein it was observed at page 175:
“20. At this stage, it would be relevant to refer to the general principles culled out by this Court in Chandrappa v. State of Karnataka [Chandrappa v. State of Karnataka, (2007) 4 SCC 415: (2007) 2 SCC (Cri) 325], rrrrrrrrrrrrrrrrregarding the power of the appellate court while dealing with an appeal against a judgment of acquittal. The principles read thus: (SCC p. 432, para 42)
“42. … (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on the exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and law.
(3) Various expressions, such as “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc., are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.”
21. In Rajendra Prasad v. State of Bihar [Rajendra Prasad v. State of Bihar, (1977) 2 SCC 205: 1977 SCC (Cri) 308], a three-judge Bench of this Court pointed out that it would be essential for the High Court, in an appeal against acquittal, to clearly indicate firm and weighty grounds from the record for discarding the reasons of the trial court in order to be able to reach a contrary conclusion of guilt of the accused. It was further observed that, in an appeal against acquittal, it would not be legally sufficient for the High Court to take a contrary view about the credibility of witnesses, and it is absolutely imperative that the High Court convincingly finds it well-nigh impossible for the trial court to reject their testimony.
This was identified as the quintessence of the jurisprudential aspect of criminal justice.”
18. Therefore, the learned Appellate Court could not have reversed the judgment of acquittal unless it was found that the view taken by the learned Trial Court was perverse.
19. No such finding was recorded by the learned Appellate Court. Learned Appellate Court reappreciated the evidence as if it was discussing the evidence as an original Court and recorded its independent finding regarding the identity. It even relied upon the statement made by the informant in his cross-examination that he had seen the accused subsequently because they had visited him to apologise, which version was nowhere stated in the statement, charge sheet or the examination-in-chief.
20. The informant had specifically mentioned in the complaint (Ex-PW5/A) that he could identify the persons who had beaten him if they were brought before him because they were residents of the same area. There is no evidence that the present accused were brought before the informant or that any test identification parade was conducted. It was laid down by the Hon’ble Supreme Court in P. Sasikumar v. State of T.N., (2024) 8 SCC 600: (2024) 3 SCC (Cri) 791: 2024 SCC OnLine SC 1652 that where the witness had not seen the accused before the date of the incident, their identification made in the dock is not acceptable. It was observed at page 605:
“17. The admitted position in this case is that the test identification parade (hereinafter referred to as “TIP”) was not conducted. All the prosecution witnesses who identified the accused in the Court such as PW 1 and PW 5 were not known to the present appellant i.e. Accused 2. They had not seen the present appellant prior to the said incident. He was a stranger to both of them. More impor- tantly, both of them have seen the appellant/Accused 2 on the date of the crime while he was wearing a “green- coloured monkey cap”!
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21. It is well settled that TIP is only a part of police inves- tigation. The identification in TIP of an accused is not a substantive piece of evidence. The substantive piece of evidence, or what can be called evidence is only dock identification that is identification made by witness in court during trial. This identification has been made in court by PW 1 and PW 5. The High Court rightly dismisses the identification made by PW 1 for the reason that the appellant i.e. Accused 2 was a stranger to PW 1 and PW 1 had seen the appellant for the first time when he was wearing a monkey cap, and in the absence of TIP to admit the identification by PW 1 made for the first time in the court was not proper.
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23. We are afraid the High Court has gone completely wrong in believing the testimony of PW 5 as to the identi- fication of the appellant. In cases where the accused is a stranger to a witness and there has been no TIP, the trial court should be very cautious while accepting the dock identification by such a witness (see: Kunjumon v. State of Kerala [Kunjumon v. State of Kerala, (2012) 13 SCC 750: (2012) 4 SCC (Cri) 406]).
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27. In the facts of the present case, the identification of the accused before the court ought to have been corrobo- rated by the previous TIP which has not been done. The emphasis of TIP in a given case is of vital importance as has been shown by this Court in recent two cases of Jayan v. State of Kerala [Jayan v. State of Kerala, (2021)
20 SCC 38] and Amrik Singh v. State of Punjab [Amrik Singh v. State of Punjab, (2022) 9 SCC 402: (2023) 2 SCC (Cri) 404].
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28. In Jayan [Jayan v. State of Kerala, (2021) 20 SCC 38], this Court disbelieved the dock identification of the ac- cused therein by a witness, and while doing so, this Court discussed the aspect of TIP in the following words: (Jayan case [Jayan v. State of Kerala, (2021) 20 SCC 38], SCC p. 44, para 18)
“18. It is well settled that the TI parade is a part of the investigation and it is not substantive evidence. The question of holding a TI parade arises when the ac- cused is not known to the witness earlier. The identifi- cation by a witness of the accused in the Court who has for the first time seen the accused in the incident of offence is a weak piece of evidence especially when there is a large time gap between the date of the inci- dent and the date of recording of his evidence. In such a case, TI parade may make the identification of the accused by the witness before the Court trustworthy.”
21. In the present case, the test identification parade was essential, keeping in view the averments made in the complaint regarding the identification, and the learned Trial Court was justified in doubting the prosecution case due to lack of identification.
22. Even the identification in the Court is not proper. The informant identified the accused present in the Court as the persons who had given him beatings. He did not identify each person and did not mention his role in the commission of the crime. He has used the word “Doshigan” (accused persons) to describe the persons who had abused him and given beatings to him. The police had arrayed four persons as accused. They could not have been held liable by use of the general term accused persons without any specific role. It was laid down by the Hon’ble Supreme Court in Pandurang v. State of Hyderabad, (1954) 2 SCC 826 that it is unsafe to rely upon the omnibus statement that the accused had committed the offence. It was observed:
“29…….Rasikabai says that the "accused" raised their axes and sticks and threatened her when she called out to them, but that again is an all-embracing statement which we are not prepared to take literally in the absence of further particulars. People do not ordinarily act in unison like a Greek chorus and, quite apart from dishonesty, this is a favourite device with witnesses who are either not mentally alert or are mentally lazy and are given to loose thinking. They are often apt to say "all" even when they only saw "some" because they are too lazy, mentally to differentiate. Unless therefore a witness particularises when there are a number of accused it is ordinarily unsafe to accept omnibus inclusions like this at their face value.”
21. Thus, the testimony of the informant was not sufficient to convict the accused.
23. Kamlesh Sharma (PW6) also made a general statement. She stated that accused No.1- Sewa Singh, was driving the vehicle. The other accused had a scuffle, and they gave beatings to the informant. The accused pushed the informant into the field, and thereafter, they fled away from the spot. The accused persons threatened to kill the informant. She could identify the accused in the Court as the persons who had given beatings to her husband. She has also not given any particular role to the accused. She also used general terms like accused persons without any specific role, and her statement was not sufficient to convict the accused.
24. It was specifically mentioned in the complaint (Ex-PW5/A) that the incident was witnessed by Jagat Ram. He was not examined, and there is no corroboration of the testimony of the informant and his wife. Learned Trial Court had rightly drawn an adverse inference for his non-examination.
25. Therefore, the learned Trial Court had taken a reasonable view while acquitting the accused, and such a view could not have been disturbed in an appeal against the acquittal without holding that it was perverse. Learned Appellate Court failed to show perversity and reversed the judgment as if it was a normal appeal, oblivious to the limitation inherent in an appeal against the acquittal. Therefore, the learned Appellate Court improperly exercised the jurisdiction vested in it, and the judgment passed by the learned Appellate Court is not sustainable.
26. In view of the above, the present petition is allowed, and the judgment passed by the learned Appellate Court convicting the petitioner and releasing him on probation of the Offenders Act is ordered to be set aside, and the judgment passed by the learned Trial Court is restored.
27. A copy of this judgment along with the record of the learned Trial Court be sent back forthwith.
