ACHHAR SINGH v. STATE OF HIMACHAL PRADESH

of actori incumbit (onus) probatio (the burden of proof weighs on the plaintiff) i.e., presumed innocence of the accused. [Para 13][257-D-E]

2.2 A characteristic feature of Common Law Criminal Jurisprudence in India is also that an accused must be presumed to be innocent till the contrary is proved. It is obligatory on the prosecution to establish the guilt of the accused save where the presumption of innocence has been statutorily dispensed with, for example, under Section 113–B of the Evidence Act, 1872. Regardless thereto, the ‘Right of Silence’ guaranteed under Article 20(3) of the Constitution is one of the facets of presumed innocence. The constitutional mandate read with the scheme of the Code of Criminal Procedure, 1973 amplifies that the presumption of innocence, until the accused is proved to be guilty, is an integral part of the Indian criminal justice system. This presumption of innocence is doubled when a competent Court analyses the material evidence, examines witnesses and acquits the accused. Keeping this cardinal principle of invaluable rights in mind, the appellate courts have evolved a self–restraint policy whereunder, when two reasonable and possible views arise, the one favourable to the accused is adopted while respecting the trial court’s proximity to the witnesses and direct interaction with evidence. In such cases, interference is not thrusted unless perversity is detected in the decision–making process. It is thus a well crystalized principle that if two views are possible, the High Court ought not to interfere with the trial court’s judgment. However, such a precautionary principle cannot be overstretched to portray that the “contours of appeal” against acquittal under Section 378 CrPC are limited to seeing whether or not the trial court’s view was impossible. It is equally well settled that there is no bar on the High Court’s power to re-appreciate evidence in an appeal against acquittal. The CrPC does not differentiate in the power, scope, jurisdiction or limitation between appeals against judgments of conviction or acquittal and that the appellate court is free to consider on both fact and law, despite the self– restraint that has been ingrained into practice while dealing with orders of acquittal where there is a double presumption of innocence of the accused. [Paras 14, 15][257-G; 258-A-G] A B C D E F G H 246 SUPREME COURT REPORTS [2021] 5 S.C.R. A B C D E F G H

2.3 The expressions “exaggeration” and “exaggerate” unambiguously suggest that the genesis of an ‘exaggerated statement’ lies in a true fact, to which fictitious additions are made so as to make it more penetrative. Every exaggeration, therefore, has the ingredients of ‘truth’. No exaggerated statement is possible without an element of truth. On the other hand, expression false is also defined. There is, thus, a marked differentia between an ‘exaggerated version’ and a ‘false version’. An exaggerated statement contains both truth and falsity, whereas a false statement has no grain of truth in it (being the ‘opposite’ of ‘true’). It is well said that to make a mountain out of a molehill, the molehill shall have to exist primarily. A Court of law, being mindful of such distinction is duty bound to disseminate ‘truth’ from ‘falsehood’ and sift the grain from the chaff in case of exaggerations. It is only in a case where the grain and the chaff are so inextricably intertwined that in their separation no real evidence survives, that the whole evidence can be discarded. [Para 24][262-A-D] Cambridge Dictionary; Merriam-Webster; Concise Oxford Dictionary; Advance Law Lexicon; Oxford Concise Dictionary – referred to.

2.4 There is no gainsaid that homicidal deaths cannot be left to judicium dei. The Court in their quest to reach the truth ought to make earnest efforts to extract gold out of the heap of black sand. The solemn duty is to dig out the authenticity. It is only when the Court, despite its best efforts, fails to reach a firm conclusion that the benefit of doubt is extended. [Para 26][263-B]

3.1 The trial court in the instant case rightly observed that the evidence was chaotic with regard to many accused persons and no definite view could be formed regarding their participation. The High Court also shared the view of the trial court and expressed concern regarding the exaggerations and contradictions within the evidence. Keeping in mind the attempts by the prosecution witnesses to implicate numerous people, the High Court delineated the strands of consistent evidence against some of the accused which were overlooked by the trial court amid the chaos. [Para 16][258-G; 259-A-B] ACHHAR SINGH v. STATE OF HIMACHAL PRADESH 247

3.2 A meticulous reading of the statements makes it clear that even if the exaggerations of multiple axe blows being given to the deceased were discarded, the allegation that BS entered the house of the victims armed with an axe and hit SD on her head, and that SD died due to a head injury was consistent and undisputed throughout the FIR and the deposition by prosecution witnesses. The same is also supported by the post–mortem report stating one fatal injury to the head by a sharp–edged weapon and the medical officer’s testimony that her injury could have been caused by the axe shown in Court. Considering this, the trial court’s confusion as to who caused SD’s fatal injury was unwarranted and uncalled for. The fact that BS executed an axe blow on SD’s head knowing fully well that an axe blow on an old woman’s vital body part would in all probability cause her death, justifies his conviction for the offence under Section 302 IPC. As for AS, the injuries sustained by BR (incised wounds on the face and posterior skull along with fracture in the facial bone) being a combination of grievous and simple injuries were opined to have been caused by both sharp and blunt edged weapons. Considering that all the witnesses have been consistent about AS’s attack on BR with an axe, his conviction under Sections 326 and 323 IPC cannot be found faulty and deserves to be upheld. [Para 21, 22][261-A-E]

3.3 The appellants’ contention that the testimony of P.W.1, P.W.11 or P.W.12 was wholly unbelievable and inconsistent with the evidence of the Doctor (P.W.3) and the post-mortem report, is unacceptable. The prosecution witnesses have given an over- exaggerated version of the injuries suffered by the deceased. They have, however, consistently deposed that the head injury which proved to be fatal, was caused by BS. Their statement, to this extent, is consistent and in conformity with the medical evidence on record. Despite the fact that the presence of many persons inside the room of occurrence created chaos and some of such persons were bystanders or fence sitters, the eye-witnesses have been able to see that the fatal blow to the deceased was caused by none else than BS. [Para 23][261-E-G]

3.4 An eye-witness is always preferred to others. The statements of P.W.1, P.W.11 and P.W.12 are, therefore, to be A B C D E F G H 248 SUPREME COURT REPORTS [2021] 5 S.C.R. A B C D E F G H analysed accordingly, while being mindful of the difference between exaggeration and falsity. The truth can be effortlessly extracted from their statements. The trial court apparently fell in grave error and overlooked the credible and consistent evidence while proceeding with a baseless premise that the exaggerated statements made by the eye-witnesses belie their version. In the instant case, the trial court being overwhelmed by many contradictions failed to identify and appreciate material admissible evidence against the appellants. The trial court misdirected itself to wrong conclusions. The finding of the trial court in ignorance of the relevant material on record was undoubtedly “perverse” and called for interference from the High Court. [Para 27–29] [263-C-E; 264-A]

3.5 While testing the ‘possibility’ of the conclusion drawn by the trial court, it has to be kept in mind that neither is there a reason on record nor have the appellants led any defence evidence to suggest as to why NT (P.W.1), his wife MD (P.W.11) or his father BR (P.W.12) would allow the real culprits to go scot–free and instead falsely implicate the appellants to settle scores on trivial issues. Rather, from the very beginning (FIR) till their last deposition, the complainant and other two injured/eye witnesses have been consistently accusing BS for committing murder of SD and AS for grievously hurting BR. Their ocular version is duly corroborated by the medical evidence on record. [Para 30][264-B-D]

3.6 The appellants submitted that since the axe was recovered from a public place it should not have been held to be in the possession of BS or that an axe was also recovered from NS (with whom parity was sought), it is clear from the facts that this was a farming community in rural Himachal where tools like axes are found in everyone’s homes. The submission that the spot of incident was doubtful as there was a blood trail outside the house as deposed by P.W.16-ASI, carries no force. The presence of random blood marks elsewhere could not put in doubt the fact that the incident happened in the house of the complainant from where the same witness recovered sticks, blood–stained stone, glass splinters, pieces of wood and leftover food, etc. The fact that the ASI did not find it necessary or even material to investigate the blood marks shows that they had no legal impact ACHHAR SINGH v. STATE OF HIMACHAL PRADESH 249 on the investigative conclusions. It is pertinent to note that independent witness P.W.14 also corroborated the recovery of broken pieces of the door, broken bulb, stones, blood–stained soil etc. from the house of the complainant. [Para 31][265-A-D]

3.7 Non-examination of many alleged bystanders is well- explained as it is clear from the facts that the complainant’s family had prior litigation with some people in the village and most of them had socially boycotted the victim’s family. The fact that nine persons who were initially accused in the FIR but not charge- sheeted subsequently, were not arrayed as prosecution witnesses is understandable. It is not necessary for the prosecution to examine every cited or possible witness. So long as the prosecution case can withstand the test of proof beyond doubt, non–examination of all or every witness is immaterial. [Para 32][265-D-F]

3.8 Similarly, the doubt cast on the actual time of death relying on P.W.3- doctor’s statement does not inspire confidence as he besides stating that the time between the death and the post–mortem was ‘within 10 hours’, also deposed that the time between the death of SD and the injury was ‘within 5-10 minutes’, thereby supporting the prosecution witnesses who deposed that she died on the spot owing to the injuries. [Para 34][266-D]

3.9 As regards, NS, whose acquittal was upheld by the High Court also, it is imperative to point out that the FIR, though not an encyclopedia of the entire incident, is the most spontaneous account of it. It is very hard to believe that the complainant who walked seven hours overnight to reach the police station to record his account of the incident would forget to mention a fatal attack with a deadly weapon on his deceased mother by NS as well. Such a major omission on the complainant’s part is very material to contradict his testimony in Court with regard to his belated allegations against NS. The medical evidence has also not substantiated such allegations against NS. The High Court has only acted on consistent and corroborated evidence against BS and AS which was conspicuously missing in the case of NS. [Para 35][266-E-G] A B C D E F G H 250 SUPREME COURT REPORTS [2021] 5 S.C.R.

3.10 The submission relying on P.W.11’s statement that the police could not have arrived before the FIR was filed does not defeat the case of the prosecution as it is a minor contradiction considering that P.W.16 ASI has deposed that he reached the house of the complainant at 1PM on 24.02.1996. The submission that there was no reason for BS to start a fight with his neighbours on the day of his daughter’s wedding also does not help the appellants. The High Court has specifically pointed out that his daughter’s wedding was solemnized two days prior to the date of the incident and there is no credible evidence as to whether a wedding function was underway at the relevant time. Even BS did not say so in his statement under Section 313 CrPC. [Para 36][266-G-H; 267-A-B] Murugesan v. State (2012) 10 SCC 383 : [2012] 13 SCR 1; Aruvelu v. State (2009) 10 SCC 206 : [2009] 14 SCR 1081; Salim Akhtar v. State of UP (2003) 5 SCC 499 : [2003] 3 SCR 470; SheikhHasib @ Tabarak v. State of Bihar (1972) 4 SCC 773; Dharma Rama Bhagare v. State of Maharashtra (1973) 1 SCC 537 : [1973] 3 SCR 92; State of UP v. Kishan Chand (2004) 7 SCC 629 : [ 2004] 3 Suppl. SCR 640; Leela Ram v. State of Haryana (1999) 9 SCC 525 : [1999] 3 Suppl. SCR 435; GangadharBehera v. State of Orissa (2002) 8 SCC 381 : [2002] 3 Suppl. SCR 183; Prabhu Dayal v. State of Rajasthan (2018) 8 SCC 127; Chandrappa v. State of Karnataka (2007) 4 SCC 415 : [2007] 2 SCR 630; State of Andhra Pradesh v. M. Madhusudhan Rao (2008) 15 SCC 582 : [2008] 14 SCR 1170; Raveen Kumar v. State of Himachal Pradesh 2020 SCC OnLine SC 869; Hari Chand v. State of Delhi (1996) 9 SCC 112; Sucha Singh v. State of Punjab (2003) 7 SCC 643: [2003] 2 Suppl. SCR 35; Babu v. State of Kerala (2010) 9 SCC 189: [2010] 9 SCR 1039; Triveni Rubber & Plastics v. CCE 1994 Supp (3) SCC 665:[1994] 3 Suppl. SCC 665; Basalingappa v. Mudibasappa (2019) 5 SCC 418: [2019] 6 SCR 555; Mohd. Rojali Ali v. State of Assam(2019) 19 SCC 567; Laltu Ghosh v. State of West Bengal (2019) 15 SCC 344; A B C D E F G H ACHHAR SINGH v. STATE OF HIMACHAL PRADESH 251