Question: Sir, I want to know can High Court convict the accused and reverse the order of acquittal? I am working in Mumbai and my family is living in my village. There was a property dispute with my pattidars. They want to grab my land because it has been parti for ten years. I am not doing agriculture work on that land. One day my cousin came to my house and fired five gunshots on my wife and son. Both were injured and admitted in sadar hospital. I went to my village but lodged the FIR after two months of the incident. There were no eyewitnesses because the incident happened inside of my house. The police officer has recorded my FIR under Section 307/323/504/506 of the IPC. The trial court has acquitted the accused on the ground of delay in FIR and absence of eyewitnesses. Can I get justice?
Question from: Uttar Pradesh
Acquittal on the ground of delay in FIR and absence of eyewitness seems perverse. You should file an appeal before the High Courtunder Section 378 crpc. The High Courthas power to interfere in the order of the court of sessions and convict the accused.
Read also: Appeal against acquittal
Can the High Court convict the accused in appeal?
The High Court has power to re-appreciate all the evidence and convict the accused if found guilty. Re-appreciation of all the evidence is a special power of the appellate court under Section 378 crpc. The appellate court is not bound by the order of the trial court. It can form a distinct opinion after perusal of evidence and set aside the order of the trial court.
In Chandrappa vs State of Karnataka AIR 2007 SC the Supreme Court has held that “the appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded”.
Therefore, you have an opportunity to prove your case in the high court. If the court finds that there is sufficient evidence then it may convict the accused. The evidence must be relevant, admissible, cogent and leading to the guilt of the accused. If there is a doubt regarding the guilt the High Court will not interfere in the order of the trial court.
In the State of U.P. vs Banne (2009) 4 SCC 271, the Supreme Court has opined that if two reasonable conclusions are possible on the basis of evidence on record the appellate court should not disturb the finding of acquittal.
Delay in FIR
Acquittal on the ground of delay in FIR is unsustainable. Because criminal law does not expect that each FIR must be prompt and immediate. If there is delay in FIR the informant must explain the delay with satisfactory facts.
When the court finds that there are cogent reasons for delay in FIR then it shall ignore the fact of delay. If other facts of the case prove that the accused has committed the offence the court shall not weigh on the fact of delay in FIR.
In State of H.P v. Shree Kant Shekari AIR 2004 SC 4404 the Supreme Court has held that “Mere delay in lodging FIR does not render prosecution version brittle.”
Delay in FIR shall not constitute the sole basis of acquittal. The court should consider other evidence thereafter, form a definite conclusion. Medical report, circumstantial evidence, injuries, existence of property dispute and enmity between parties are vital evidence of your case. The court should consider all this evidence before writing the order of acquittal.
You are living in Mumbai, offence committed in your village, your wife and son were injured and no guardian was present there to take immediate action. Medical treatment to your wife and son was the first priority. This could be the reason for delay in lodging FIR. The circumstances of your case itself give satisfactory explanation towards delay in FIR.
Perverse order
The High Court Can convict the accused if the order of acquittal is perverse. An order is perverse when the trial court has:
- Ignored or excluded the relevant evidence.
- Taken into consideration irrelevant or inadmissible evidence.
- Against the weight of evidence.
- Wrongly placed the burden of proof.
The trial court has wrongly placed reliance on delay of FIR and absence of eye witness. It has overlooked the circumstantial evidence, enmity, property disputes and injuries of victims. Therefore, the order of acquittal is perverse. The High Court can reverse this perverse order and convict the accused.
Hence, you should file an appeal to the High Court under Section 378 crpc. Delay in FIR does not infer that it is false or frivolous. It is, however, not mandatory that an offence must be proved by the eye witnesses. Circumstantial evidence is equally important and it can prove the guilt of the accused. Hence, there is sufficient evidence to move an appeal against the order of acquittal. The High Court may reverse the order of acquittal, thus, you will get justice from the High Court.
