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CASE NO.:

Appeal (crl.) 1113 of 1997

PETITIONER:

Bihari Nath Goswami

RESPONDENT:

Shiv Kumar Singh and Ors.

DATE OF JUDGMENT: 24/02/2004

BENCH:

P.VENKATARAMA REDDI & ARIJIT PASAYAT.

JUDGMENT:

J U D G M E N T

ARIJIT PASAYAT,J

This appeal has been filed by father of one Anup

Goswami (hereinafter referred to as the 'deceased') who

allegedly lost his life on 14.4.1991. The respondents 1 to 6

and four others were stated to be responsible, first for

his abduction and thereafter his murder. The 4th

Additional Sessions Judge, Dhanbad in S.T. No. 37/1993 found

the respondents guilty for the offence punishable under

Section 364 read with Section 149 of the Indian Penal Code,

1860 (in short the 'IPC') and under Section 302 read with

Section 149 IPC.

One Madan Singh who was stated to be the kingpin in the

whole incident died during trial. Similar is the case with

one Jitu Mandan who died during trial. Ram Narain Singh, son

of accused Madan has absconded, so also one Ashok Goswami

who jumped bail and therefore the trial court did not record

any findings so far as he is concerned.

The prosecution version in a nutshell is as follows:

One Ashok Kumar Giri gave his fardabeyan (Ext.8) to the

police on 14.4.1991 at 11.05 p.m. near Agrasen Bhawan,

Laxmaniya More in front of the house of accused Madan Singh

alleging there that at about 9.00 p.m. the informant,

Krishna Goswami (PW-5), Pradip Sharma and Bijay Giri (PW-4)

along with Anup Goswami reached Laxmaniya More. The

informant was gossiping with the persons named above and

suddenly accused Madan Singh (A-1), Ram Narain Singh (A-2),

Om Prakash Singh (A-3), Sheo Kumar Singh (A-4), Jan Bijoy

Singh (A-5) (A-2 to A-5 being all sons of Madan Singh),

Pappu Mali (A-6), Dilip Mali (A-7), Jitu Mandal (A-8), Ashok

Goswami (A-9) and Shrikant Singh (A-10) armed with Bhujali,

sword, pistol and bomb came and menacingly asked the

informant and others to escape. The informant and others

panicked. In the meanwhile accused Madan Singh and his four

sons caught hold of Anup Goswami while A-4 pointed out a

pistol towards him, and asked Anup Goswami to accompany

them. When Anup Goswami protested, Madan Singh and other

accused persons caught hold of hands and feet of Anup

Goswami and dragged him to the lane by the side of Agrasen

Bhawan. They were loudly telling that Anup Goswami shall be

killed. The informant and other eyewitnesses tried to

follow, but Jan Bijoy Singh (A-5) asked them not to follow,

otherwise he would use his bomb. The informant, after some

time went to the house of Madan Singh along with a Havildar

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of Bajbari T.O.P. House of Madan Singh was locked. When the

informant tried to open the door, Madan Singh told him to go

away. After some time, police came and when they entered the

house of Madan Singh, found Anup Goswami whose both hands

were chopped. Right hand was completely separated and left

hand was connected only by the aid of skin. The informant

found that Anup Goswami was already dead. While the

informant and others were entering the house of Madan Singh

at that very time, the accused persons fled away by the back

door. Near the dead body of Anup Goswami, a country made

pistol of 3.15 bore one sword, one broken hockey stick were

lying. The motive behind alleged occurrence was that Anup

Goswami was having enmity with Madan Singh and his sons.

Investigation was undertaken. Charges were explained to the

accused persons and they pleaded innocence.

Placing reliance on the evidence of alleged

eyewitnesses PWs 4, 5 and 9, the trial Court found the

accused persons guilty and imposed imprisonment for life for

the offence relatable to Section 302 read with Section 149

IPC, and 10 years RI for the offence relatable to Section

364 IPC read with Section 149 IPC. The respondents preferred

appeal before the Patna High Court. The appeal was heard by

two Hon'ble Judges. There was a difference of view between

the two Hon'ble Judges. While Justice P.K. Deb held that

prosecution has not established its accusations, a contrary

view was taken by Justice R.N. Sahay. Sahay, J. upheld the

conviction of appellant under Section 302 read with Section

149. However, the conviction under Section 364 read with

Section 149 was held to be improper. The matter was,

therefore, placed before a 3rd Hon'ble Judge (Justice S.K.

Chattopadhyaya) who concurred with the views of Justice P.K.

Deb and held that the accused persons were to be acquitted.

By special leave the father of the deceased has preferred

this appeal.

In support of the appeal, learned counsel for the

appellant submitted that the majority view cannot be

maintained, because credible and cogent evidence of the

prosecution witnesses has been discarded on mere surmises

and conjectures. Even if it is accepted for the sake of

arguments that the direct evidence is scanty so far as the

murder of deceased is concerned, the abduction has been

established by the evidence of PWs 4, 5 and 9. In any event,

the dead body of the deceased was found in the house of

Madan Singh and in view of the time proximity, natural

inference would be that the accused persons were responsible

for the killing of the deceased. The plea of enmity which

has weighed with the two Hon'ble Judges of the High Court

goes to provide the motive for the killing. There was no

material brought on record to substantiate the plea of the

accused persons that PWs 4, 5 and 9 were in inimical terms

with them. The enmity, if any, was between the deceased and

the accused persons, and merely because PWs 4, 5 and 9 were

friendly with the deceased that cannot be a ground to

discard their evidence. Their evidence clearly shows that

when they tried to save the deceased, threat was given.

Specific overt act had been attributed to the accused Jan

Bijoy Singh in that regard. Merely because there was some

delay in lodging the first information report, that cannot

be a ground to discard the otherwise cogent evidence of the

eyewitnesses. The delay has been properly explained. A

Havildar was told about the incident. Unfortunately, he

could not be traced out and his evidence could not be

tendered. His evidence could have bridged the time gap on

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which much emphasis has been laid for directing acquittal.

It is of relevance that the High Court while directing three

persons to be examined as court-witnesses had restricted the

scope of their evidence to the location of the place of the

occurrence where the dead body was found. The evidence went

much beyond that, and the Hon'ble Judges took them as

additional factors. All these render the judgment of the two

Hon'ble Judges who directed acquittal vulnerable.

In response, learned counsel for the respondents-

accused submitted that several suspicious circumstances have

been noticed to find the prosecution version vulnerable. The

incident was claimed to have taken place at 21.00 p.m. The

first information report was lodged at 23.05 p.m. Though two

police officers (PWs 11 and 12) reached the place after

10.30 p.m. they were not even told about the assailants and

the alleged scenario of the crime. No report was lodged at

the out-post which was just at a stone's throw. There have

been exaggerations and a deliberate attempt to rope Madan

Singh and his family members. The story of Havildar a being

present was introduced with the obvious object of explaining

the time gap. But strangely, PW-11 the first police officer

who reached the spot of occurrence was never told about him.

Similar is the position so far as PW-12 is concerned, and

reading of evidence of these two police officials clearly

proves this aspect. Though the so-called presence of the

Havildar was introduced, he seems to be a totally imaginary

person, because the investigating agency found no such

person. While dealing with an appeal against acquittal, it

has to be seen whether the view taken by the Court directing

acquittal is a possible view. When two Hon'ble Judges have

taken a view holding the accused persons to be not guilty,

this is not a fit case for interference. Learned counsel for

the State supported the stand taken by the appellant.

It is fairly well settled that merely because the

witnesses were friendly with the deceased that would not be

sufficient to term them as interested witnesses. Whenever

any plea is taken by the accused persons about the

interestedness of witnesses, materials have to be placed in

that regard. In the instant case, the two Hon'ble Judges who

have held the accused persons not guilty have kept this

salutary principle in view. They have analysed the evidence

of PWs 4, 5 and 9 with care and caution. It has been found

that they were not truthful witnesses and their presence at

the alleged spot of occurrence was doubtful. Their evidence

has been considered along with the evidence of PWs 11 and

12, the two police officials who reached the house of Madan

Singh almost simultaneously. Their evidence does not show

that PWs 4, 5 and 9 were present or that they disclosed to

them about the ghastly occurrence. For the first time, at

23.05 p.m. the first information report was purportedly

registered at the scene of occurrence. The evidence

regarding adduction as stated by PWs 4, 5 and 9 does not

inspire confidence as noticed by the two Hon'ble Judges

directing acquittal. They have found it unnatural that with

the scanty light which was stated to be available at the

spot of occurrence, the witnesses could even notice the

weapons held by the accused persons individually. The source

of light for identification was also differently described

by the witnesses.

There is no embargo on the appellate Court reviewing

the evidence upon which an order of acquittal is based.

Generally, the order of acquittal shall not be interfered

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with because the presumption of innocence of the accused is

further strengthened by acquittal. The golden thread which

runs through the web of administration of justice in

criminal cases is that if two views are possible on the

evidence adduced in the case, one pointing to the guilt of

the accused and the other to his innocence, the view which

is favourable to the accused should be adopted. The

paramount consideration of the Court is to ensure that

miscarriage of justice is prevented. A miscarriage of

justice which may arise from acquittal of the guilty is no

less than from the conviction of an innocent. In a case

where admissible evidence is ignored, a duty is cast 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. [See Bhagwan Singh and Ors. v. State of

Madhya Pradesh (2002 (2) Supreme 567). The principle to be

followed by appellate Court considering the appeal against

the judgment of acquittal is to interfere 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.

These aspects were highlighted by this Court in Shivaji

Sahebrao Bobade and Anr. v. State of Maharashtra (AIR 1973

SC 2622), Ramesh Babulal 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 and Ors.

(2003 (7) Supreme 152), State of Punjab v. Karnail Singh

(2003 (5) Supreme 508 and State of Punjab v. Pohla Singh and

Anr. (2003 (7) Supreme 17) and Suchand Pal v. Phani Pal and

Anr. (JT 2003 (9) SC 17).

Exaggerations per se do not render the evidence

brittle. But it can be one of the factors to test

credibility of prosecution version, when the entire evidence

is put in a crucible for being tested on the touchstone of

credibility. The unusual conduct of PWs 4, 5 and 9, the

unexplained delay in lodging the FIR, non-disclosure to the

police officials about the assailants, or the scenario of

the crime when they arrived at the spot cumulatively present

a possible view of the case which has weighed with the two

Hon'ble Judges directing acquittal. Though some of the

reasons given by the Hon'ble Judges do not have our

approval, yet keeping them out also, do not in our view

warrant interference. As noted above, the view taken to

direct acquittal is a possible view. Merely because on the

evidence a different view is available to be taken, that

cannot be a ground to upset the acquittal.

Above being the position, the impugned judgment does

not warrant any interference and the appeal consequentially

stands dismissed.