LexSTATE OF HARYANA versus SURENDER AND ORS. ETC.
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STATE OF HARYANA A v. SURENDER AND ORS. ETC. JUNE 1, 2007 [DR. ARIJIT PASA Y AT AND D.K. JAIN, JJ.] B Penal Code, I 860: ss.302,394 rlw 397-Robbery-Accused stabbing one victim to death and injuring another by firing gunshot at him-Accused identified in court C by injured witness-Conviction by trial court-Acquittal by High Court for· not holding test identification parade-Held: Accused having denied to participate in test identification parade, cannot make a grievance about identification in Court-Acquittal by High Court set aside-Test identification parade. D Code of Criminal Procedure, 1973 Appeal against acquittal-Re-appreciation of evidence-Held: There is no embargo on appellate court to reviewing the evidence upon which I order of acquittal was based-If judgement under appeal is clearly E unreasonable, and relevant and convincing materials have been unjustifiably ignored, it is a compelling reason for interference-Constitution of Jndia- Art 136. 1 The four respondents in the instant three appeals, were prosecuted for committing offences punishable under ss.302 and 394 read with s.397 IPt. · F The prosecution case was that in running train they, while committing robbery, killed one person by stabbing and injured his younger brother by firing a gunshot at him. The eye-witnesses namely, PWs 13 and 14, younger brother and sister of the deceased respectively, who were travelling with him, identified the accused in the court. The trial court convicted all the four accused of the offences charged and sentenced each of them accordingly. 'In G the appeal filed by the accused, it was mainly pleaded that as no test identification parade was held, the identification for the first time in the court was of no consequence. The High Court did not accept the contention of the State that accused having refused to participate in test identification parade 885 H 886 SUPREME COURT REPORTS (2007] 7 S.C.R. A could not take advantage of their own lapse, and acquitted the accused. Aggrieved, the State filed the instant appeals. Allowing the appeals, the Court HELD: 1.1. There is no embargo on the appellate court reviewing the B evidence upon which an order of acquittal is based. The paramount consideration of the <;ourt is to ensure that miscarriage of justice is prevented. In a case, where admissible evidence is ignored, a duty is caste upon the appellate court to re-appreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not The principle to be followed by appellate C Court considering the appeal against the judgment of acquittal is to interface only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, and relevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference. [Fara 7] [889-F-H; 890-A] D Bhagwan Singh and ors. v. State of MP., (2002) 2 Supreme 567; Shivaji Sahabrao Bobade and Anr. v. State of Maharashtra, AIR (1973) SC 2622; Ramesh Babula/ Doshi v. State of Gujarat, (1996) 4 Supreme 167; Jaswant Singh v. State of Haryana, (2000) 3 Supreme 320; Raj Kishore Jha v. State of Bihar & Ors., (2003} 7 Supreme 52; State of Punjab v. Karnai/ Singh, (2003) E 5 Supreme 508; State of Punjab v. Poh/a Singh and Anr., (2003) 7 Supreme 17 and V.N. Ratheesh v. State of Kera/a, [2006) 10 SCC 617, relied on. 1.2. On a perusal of the High Court's order it is crystal clear that the same is clearly unsustainable. The evidence of the eye-witnesses, i.e. PW 13 and PW 14, has not been discussed by the High Court. Both are injured F witnesses. The High Court did not indicate any reason as to why it discarded the plea of the State that the accused persons having denied to participate in the TI parade cannot make a grievance about identification in Court. The High Court has even not discarded the stand of the State as to why the plea relating to TI parade cannot be raise~ by the accused. The judgment of the G High Court is clearly unsustainable and is, therefore, set aside. (Para 6 and 8) [888-H; 889-A-B; 890-D) CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 618-620 of2001. H From the Final Judgment and Order dated 06.09.2000 of the High Court ,. :r STATEOFHARYANAv. SURENDER(PASAYAT,J.] 887 of Punjab and Haryana at Chandigarh in Criminal Appea
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