2. 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.

4. The present appeal is vehemently opposed by the learned counsel   appearing   on   behalf   of   the   respondent   –   State   of Himachal Pradesh.

4.1 It is submitted that in the present case the High Court has after   re­appreciation   of   entire   evidence   on   record,   found   the accused   guilty   for   the   unnatural   death   of   Deepak   Kumar deceased.  It is submitted that as such the re­appreciation of the entire evidence by the first appellate court is permissible;

4.4. Now so far as the submission on behalf of the accused on non­examination of independent witnesses at the time of recovery and non­compliance of the provisions of Section 100(4) Cr.P.C. and other related provisions is concerned, it is submitted by the learned counsel appearing on behalf of the respondent­State that the persons who were gathered at the time of recovery were mere spectators and none had come forward to act as a witness in the matter. It is submitted that even otherwise as held by this Court in the case of Ronny v. State of Maharashtra, (1998) 3 SCC 625 that even if the witness has been brought by the investigating agency along with them, they cannot be disbelieved only on that ground.

4.5. In the alternative, it is submitted by the learned counsel appearing on behalf of the respondent-­State that non­compliance of the directory provisions contained in Section 100 Cr.P.C. can at the most be treated as defective investigation but that cannot come in the way of dispensation of justice.   Heavy reliance is placed   upon   the   decision   of   this   Court   in   the   case   of  C. Muniappan v. State of Tamil Nadu, (2010) 9 SCC 567 (para 55). It is submitted that as held by this Court in the case of State of Punjab v. Balbir Singh, (1994) 3 SCC 299 (para 6), a defective   investigation   if   any   does   not   vitiate   the   trial.     It   is submitted   that   as   held   by   this   Court   in   the   case   of Sudha Renukaiah  v.  State   of Andhra  Pradesh,  (2017)  13   SCC  81,  in which the decision in the case of  Muniappan (supra)  was relied upon, that even if the IO has committed any error and has been negligent in carrying out any investigation or in the investigation there is some omission and defect, it is the legal obligation on the part of the court to examine the prosecution evidence  de hors such lapses.

5. We have heard the learned counsel for the respective parties at length.   We have gone through in detail the judgment and order of acquittal passed by the learned trial Court as well as the impugned   judgment   and   order   passed   by   the   High   Court interfering with the order of acquittal passed by the learned trial Court and thereby convicting the accused.   we have also gone through   the   relevant   evidences,   both   oral   as   well   as documentary.

5.1 At the outset, it is required to be noted that this is a case of reversal of acquittal by the High Court in a case of circumstantial evidence.     Therefore,   the   first   and   foremost   thing   which   is required   to   be   considered   is,   whether   in   the   facts   and circumstances   of   the   case,   the   High   Court   is   justified   in interfering with the order of acquittal passed by the learned trial Court?

5.2. Before considering the appeal on merits, the law on the appeal against acquittal and the scope and ambit of Section 378 Cr.P.C. and the interference by the High Court in an appeal against acquittal is required to be considered.

5.2.1. In the case of Babu (supra), this Court had reiterated the principles to be followed in an appeal against acquittal under Section 378 Cr.P.C.  In paragraphs 12 to 19, it is observed and held as under:

15.  In Chandrappa  v.  State of Karnataka (2007) 4 SCC 415, this Court reiterated the legal position as under: (SCC p. 432, para 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 exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of 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 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.”
18. In State of U.P. v. Banne (2009) 4 SCC 271, this Court gave certain illustrative circumstances in which the Court would be justified in interfering with a judgment of acquittal by the High Court. The circumstances include: (SCC p. 286, para 28)
“(i) The High Court’s decision is based on totally erroneous view of law by ignoring the settled legal position;
(ii)  The   High   Court’s   conclusions   are   contrary   to   evidence   and documents on record;
(iii) The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice;
(iv) The   High   Court’s   judgment   is   manifestly   unjust   and unreasonable based on erroneous law and facts on the record of the case;
(v) This Court must always give proper weight and consideration to the findings of the High Court;
(vi) This Court would be extremely reluctant in interfering with a case   when   both   the   Sessions   Court   and   the   High   Court   have recorded an order of acquittal.” A similar view has been reiterated by this Court in Dhanapal v. State (2009) 10 SCC 401.

5.2.3 It is further observed, after following the decision of this Court in the case of Kuldeep Singh v. Commissioner of Police (1999) 2 SCC 10, that if a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse.   But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with.

5.4 It is also required to be noted and it is not in dispute that this is a case of circumstantial evidence.  As held by this Court in catena of decisions that in case of a circumstantial evidence, the circumstances,   taken   cumulatively,   should   form   a   chain   so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else and the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence   should   not   only   be   consistent   with   the   guilt   of   the accused but should be inconsistent with his innocence.  In the case of Babu (supra), it is observed and held in paragraphs 22 to 24 as under:

“22. In Krishnan v.  State (2008) 15 SCC 430, this Court after considering a large number of its earlier judgments observed as follows: (SCC p. 435, para 15)
“15. … This Court in a series of decisions has consistently held that   when   a   case   rests   upon   circumstantial   evidence,   such evidence must satisfy the following tests:
(i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(ii) those circumstances should be of definite tendency unerringly pointing towards guilt of the accused;
(iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and
(iv) the circumstantial evidence in order to sustain conviction must be   complete   and   incapable   of   explanation   of   any   other   hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (See Gambhir v. State of Maharashtra (1982) 2 SCC 351)”
23. In Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116  while dealing with circumstantial evidence, it has been held that the onus was on the prosecution to prove that the chain is complete and the infirmity or lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent before conviction could be based on circumstantial evidence, must be fully established. They are: (SCC p. 185, para 153)
(i) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned “must” or “should” and not “may be” established;
(ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(iii)   the   circumstances   should   be   of   a   conclusive   nature   and tendency;
(iv) they should exclude every possible hypothesis except the one to be proved; and
(v) there must be a chain of evidence so complete as not to leave any reasonable   ground   for   the   conclusion   consistent   with   the innocence   of   the   accused   and   must   show   that   in   all   human probability the act must have been done by the accused. A similar view has been reiterated by this Court in State of U.P. v. Satish (2005) 3 SCC 114 and Pawan v. State of Uttaranchal (2009) 15 SCC 259.

6. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, it is to be considered, whether in the facts and circumstances of the case, the High Court is justified in interfering with the order of acquittal passed by the learned trial Court?

7. Even the recovery of jeep from Chandigarh and recovery of photographs and the recovery of mobile phone belonging to PW7 from   the   jeep   also   create   serious   doubts.     According   to   the prosecution and the IO, he received a secret information that one jeep is lying in abandoned condition on the Chandigarh road and though the distance was around 300 kilo meters, he straightway went to Chandigarh and recovered the jeep in the presence of Bhunter people brought by him.  The Investigating Officer did not follow the procedure as required to be followed under Section 166 (3 & 4), Cr.P.C.  Even he did not comply with the provisions of Section 100 (4) Cr.P.C.  Non­following of the aforesaid provisions alone may not be a ground to acquit the accused.   However, considering the overall surrounding circumstances and in a case where   recovery   is   seriously   doubted,   non­compliance   of   the aforesaid play an important role.

9. 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.   In paragraphs 25 and 26, it is observed and held as under:

“25.  In  State of U.P.  v.  Kishanpal (2008) 16 SCC 73,  this Court examined   the   importance   of   motive   in   cases   of   circumstantial evidence and observed: (SCC pp. 87­88, paras 38­39)
“38. … the motive is a thing which is primarily known to the accused themselves and it is not possible for the prosecution to explain what actually promoted or excited them to commit the particular crime.
39. The motive may be considered as a circumstance which is relevant for assessing the evidence but if the evidence is clear and unambiguous and the circumstances prove the guilt of the accused, the same is not weakened even if the motive is not a very strong one. It is also settled law that the motive loses all its importance in a case where direct evidence of eyewitnesses is available, because even if there may be a very strong motive for the accused persons to commit a particular crime, they cannot be convicted if the evidence of eyewitnesses is not convincing. In the same way, even if there may not be an apparent motive but if the   evidence   of   the   eyewitnesses   is   clear   and   reliable,   the absence or inadequacy of motive cannot stand in the way of conviction.”
26. This Court has also held that the absence of motive in a case depending on circumstantial evidence is a factor that weighs in favour of the accused. (Vide Pannayar v. State of T.N (2009) 9 SCC 152).” (emphasis supplied)

10. 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.

11. In view of the above and for the reasons stated above, the present appeal succeeds…..