As per the case facts, some accused individuals were convicted and sentenced by a Fast Track Court, with some even receiving the death penalty, for offenses including murder and those ...
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.111113 OF 2015
RAJESH PRASAD …..APPELLANT(S)
VERSUS
THE STATE OF BIHAR AND ANR. ETC. ….RESPONDENT(S)
J U D G M E N T
NAGARATHNA J.
These appeals have been filed by the appellant
informant (PW7 Rajesh Prasad) assailing the judgment and
order dated 5
th
August, 2009 passed by the High Court of
Judicature at Patna in Criminal Appeal Nos.714, 747 and 814
of 2008 by which the judgment of conviction dated 26
th
June,
2008 and order of sentence dated 30
th
June, 2008 passed by
the Additional District & Sessions Judge, Fast Track CourtV,
Munger, has been set aside by allowing the aforesaid appeals
and by accordingly answering the Death Reference No.13/2008
and consequently acquitting all the accused.
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2.The Court of Additional District & Sessions Judge, Fast
Track CourtV, Munger, (hereinafter referred to as the ‘Fast
Track Court’) vide its judgment dated 26
th
June,2008 convicted
the respondents herein viz., Upendra Ram, Mahendra Ram and
Munna Ram. By order dated 30
th
June, 2021, the Fast Track
Court sentenced Upendra Ram to undergo imprisonment for
life with fine of Rs.5000/ and in default of payment of fine he
was further to undergo rigorous imprisonment for one year for
the offence under section 302/34 read with section 120B of the
Indian Penal Code (for short, the ‘IPC’) and also sentenced to
undergo rigorous imprisonment for one year for offence under
section 504 of IPC and further sentenced to undergo rigorous
imprisonment for ten years each for the offence under section
3/4 of the Explosive Substances Act, 1908 and ordered that
the sentences run concurrently. The Fast Track Court
sentenced the accused viz., Munna Ram and Mahendra Ram to
death under sections 302/34 read with section 120B of IPC
and sections 3/4 of Explosive Substances Act, 1908, subject to
confirmation by the High Court. The Fast Track Court however
acquitted the other accused viz., Fantus Mandal, Dhappu Ram
and Chandrabhanu Prasad.
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3.It is the case of the prosecution that on Thursday, 10
th
March, 2005, at about 5.00 pm, accused Mahendra Ram,
Upendra Ram, Munna Ram, Dhappu Ram, all being sons of
Kishori Ram and Chandrabhanu Prasad, with two other
unknown persons proceeded towards the informant viz.,
Rajesh Prasad (PW7) and protested that as the informant had
opposed their illegal activities, his entire family would be blown
off by a bomb. Accused Munna Ram threw a bomb at the
informant’s father Chhote Lal Mahto who was sitting in his
betel (pan) shop. The rear portion of his father’s head was
blown off leading to his death. Accused Mahendra Ram threw
another bomb against O.P. Verma and as a result thereof, his
head was blown away and he died on the spot. Further,
Upendra Ram hurled another bomb which missed injuring
anyone else and exploded on the road. Then accused
Chandrabhanu and Dappu Ram stated that they would
proceed from there as their job had been completed and they
tried to flee from the spot, but the furious public caught hold of
an unknown person and assaulted him as a result of which he
was seriously injured and he died. The accused, while fleeing
away, threatened that their action was a result of opposition by
the informant against the illicit sale of liquor by them and if
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anyone again obstructed their business, they would face
similar consequences. AccusedChandrabhanu Prasad helped
the accusedMunna Ram to flee from the spot.
4.The informant had further stated that he was objecting to
the illegal sale of liquor by the accused and on account of
enmity and in pursuance of their common intention and object,
they had hurled bombs and killed the father of the informant
as well as others.
5.On receipt of the said information, a case was registered
at Kotawali PS being Case No.136/2005 dated 10
th
March, 2005
under sections 302/34, 120B of IPC and section 3/4 of the
Explosive Substances Act, 1908 (hereinafter referred to as the
‘Act’) against the accused. The police investigated the case and
submitted the chargesheet dated 7
th
June, 2005 against the
accused before the Court of Chief Judicial Magistrate, Munger,
keeping investigation pending with regard to the other charges
for offences under sections 302, 120B, 504, 225 of IPC and
section 3/4 of the Act. On 8
th
June, 2005, the Chief Judicial
Magistrate, Munger, took cognizance of the alleged offences
against the accused and committed the case to the Court of
Sessions after complying with the provision of section 207 of
5
the Code of Criminal Procedure (for short, the ‘Cr.PC’) vide
order dated 17
th
June, 2005.
6. The case was transferred to the Court of Additional
District JudgeI, Munger and later on, to the Fast Track Court
on 9
th
December, 2005. Thereafter, the charge for the
concerned offences was read over and explained to the accused
in Hindi to which they pleaded not guilty and claimed to be
tried.
7. The prosecution examined altogether ten witnesses and took
note of Material Objects (MOs). Thereafter, statements of the
accused under section 313 Cr.PC were recorded. All the
accused denied the alleged occurrence and submitted that they
were innocent and had been falsely implicated. They contended
that there were dues in respect of liquor taken by Ashok Yadav
from the informant who was running an illegal liquor shop.
The said dues were demanded from Ashok Yadav for which
there was a scuffle between them and the family of the
informant assaulted Ashok Yadav. As a result, some unknown
persons became furious and hurled bombs and caused the
alleged occurrence. That the associates of the informant had
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looted the tea shop of accused Dhappu Ram and that the
informant had falsely implicated the accused.
8. We have heard Ms. Prerna Singh, learned counsel for the
appellant; Sri Saket Singh, learned counsel for the State and
Sri Ranjan Mukherjee, learned counsel for the respondents
accused and perused the material on record.
9.Appellant’s counsel submitted that the High Court was
not right in setting aside the judgment of conviction and
sentence passed by the FastTrack Court, thereby acquitting
the accused. She drew our attention to the evidence of PWs 3,
4, 5, 8, 9 and 10 and contended that the same would clearly
establish the guilt of the accused beyond reasonable doubt.
However, the High Court has not appreciated the case of the
appellant herein in its proper perspective and has set aside the
judgment of the FastTrack Court. The appellantinformant
PW7 who is one of the sons of the deceased Chhote Lal Mahto
had clearly stated in the complaint and also in his deposition
about the culpability of the accused which has not been
properly appreciated by the High Court.
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10. While drawing our attention to the evidence on record,
learned counsel for the appellant submitted that the High
Court has arrived at incorrect conclusions and thereby
reversing the judgment of the FastTrack Court.
11.Learned counsel for the appellant further contended that
while acquitting the accused, the High Court has directed that
proceedings of perjury be initiated against the appellant herein
which was wholly unnecessary having regard to the fact that
the Fast Track Court had accepted the case of the prosecution
and on the basis of the evidence of the appellant herein as well
as other eyewitnesses had convicted the accused.
12.Learned counsel for the appellant finally contended that
the impugned judgment of acquittal may be set aside and the
judgment of the Fast Track Court be restored as the accused
have committed serious offences under section 302/34 read
with section 120B of IPC as well as other sections resulting in
death of two persons, one being the father of the appellant as
well as another, on account of the bombs hurled by the
accused against the deceased. She submitted that the third
bomb which was hurled by an accused missed injuring any
person but that would not in any way lead to his acquittal.
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13. Per contra, learned counsel appearing for the
respondentsaccused supported the judgment of the High
Court and contended that the High Court has rightly perceived
and assessed the evidence on record and as a result reversed
the erroneous judgment of the FastTrack Court. It was
submitted that the FastTrack Court failed to note that the
evidence on record did not prove the case of the prosecution
beyond reasonable doubt vis
àvis the accused and despite
that death penalty had been imposed on two of the accused
and life imprisonment on another accused which has been
rightly reversed by the High Court by a reasoned judgment.
Therefore, the impugned judgment would not call for any
interference at the hands of this Court as there is no merit in
these appeals. Hence, the appeals may be dismissed.
14. Having heard the learned counsel appearing for the
respective parties, the following points would arise for our
consideration:
(a) Whether the High Court was justified in
reversing the judgment of conviction and
sentence awarded by the FastTrack Court,
thereby acquitting all the accused?
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(b)Whether the judgment of the High Court calls for
any interference or modification by this Court?
(c)What order?
15. The FastTrack Court considered the case of the
prosecution being that on 10
th
March, 2005 at about 5.00 pm,
the accused came to the informant and stated that since the
informant and his family were objecting to his illegal sale of
country made liquor, he along with his family would be
eliminated. Then, accused Munna Ram hurled a bomb that he
was holding in his hand and the father of the informant,
Chhote Lal Mahto, sitting at the betel shop died in the blast.
Second bomb was hurled by accused Mahendra Ram causing
the death of a pedestrian named O.P. Verma and the third
bomb was thrown by accused Upendra Ram, which exploded
on the road. The accused then fled from the spot. That the
offences were committed by the accused as a result of objection
raised by the deceased Chhote Lal Mahto and his son PW7
Rajesh Prasadinformant, appellant herein, against the illegal
liquor business of the accused.
16.The FastTrack Court also noted that the defence was
unable to substantiate their case that the tea shop of accused
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Dhappu Ram had been looted by the informant and his
associates. They further stated that there were disputes in
respect of payment of prices of liquor by Ashok Yadav and as a
result the latter and his associates had exploded the bombs.
17.The versions of PWs 1, 2, 3 and 4 who were eyewitnesses
as well as that of PW7 i.e. the informant were accepted by the
Fast Track Court as being consistent with each other as their
ocular testimony proved the prosecution case beyond any
reasonable doubt. Accordingly, three of the accused were
convicted and sentenced as noted above.
18.The Fast Track Court on considering the evidence on
record held as under and came to the following conclusion:
(i)That PW1, PW3, PW4 and PW7 are related to
each other, they being the soninlaw, cousin and
sons of the deceased, Chhote Lal Mahto
respectively. PW2 is the shopkeeper of the PCO
booth which is the shop adjoining the betel shop of
the informant. PW2 was also injured by a splinter
of the bomb which was hurled on the deceased
Chhote Lal Mahto who was in his betel shop. PW8
also witnessed the occurrence. As such, PW2 and
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PW8 are independent witnesses. PW5 is the doctor
who performed the postmortem examination of the
deceased and PWs9 and 10 are the Investigating
Officers (IOs) of the case.
(ii)That totally three bombs were hurled resulting in
the death of Chhotey Lal Mahto and another person
and the third bomb exploded on the road. As a
result, the public became furious and caught hold
of an unknown person and assaulted him, which
resulted in his death. It had come in the evidence
that the said person was Ashok Yadav.
(iii)That the name of Fantus alias Udai Prakash
Mandal had not been found in the FIR and the
witnesses had not testified against his involvement
in the occurrence nor has there been any overt act
alleged against him.
(iv)No overt act had been alleged against Dhappu Ram
and Chandrabhanu Prasad.
(v)Consequently, Fantus Mandal, Dhappu Ram and
Chandrabhanu Prasad were not found guilty of any
offences alleged and they were acquitted.
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(vi)Considering the evidence on record, it was found
that Upendra Ram, Munna Ram and Mahendra
Ram were guilty and they were convicted and
sentenced as stated above by the Fast Track Court.
19. In the appeals filed by the accused and in the Death
Reference No.13/2008, the High Court, on considering the
submissions made on behalf of the accused as well as the
State, noted at the outset as under:
“It is trite law that acquittal of a coaccused cannot
simpliciter be a ground for acquittal of other accused.
There may be factors distinguishing the two cases.
Alternately, an erroneous acquittal and absence of
any challenge to the same cannot be a ground to
demand similar treatment by others. Likewise, the
testimony of an interested witness cannot be
discarded on that ground alone. It would only require
the Court to be more cautious and scrutinize the
evidence carefully. Evidence, otherwise cogent and
convincing cannot be rejected on the ground that
there was no independent witness, though the
occurrence had taken place on a busy road. But,
there may be circumstances where the witnesses are
interested and the manner of occurrence as
described requires corroboration by independent
witness also. Ultimately, therefore, it shall all depend
on the facts and circumstances of the case. It has
also to be kept in mind that it shall be those close to
the deceased, who shall be most keen that the real
culprits be booked.”
13
With the aforesaid observations, the High Court set aside
the judgment of conviction of the accused who were convicted
by the FastTrack Court as well as sentence imposed upon
them and accordingly, allowed the appeals by acquitting all
the accused.
20. Before proceeding further, it would be useful to review
the approach to be adopted while deciding an appeal against
acquittal by the trial court as well as by the High Court.
Section 378 of the Cr.P.C deals with appeals in case of
acquittal. In one of the earliest cases on the powers of the
High Court in dealing with an appeal against an order of
acquittal the Judicial Committee of the Privy Council in Sheo
Swarup vs. R. Emperor, AIR 1934 PC 227(2) considered the
provisions relating to the power of an appellate court in
dealing with an appeal against an order of acquittal and
observed as under:
“16. It cannot, however, be forgotten that in case of
acquittal, there is a 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 should be
presumed to be innocent unless he is proved to be
guilty by a competent court of law. Secondly, the
accused having secured an acquittal, the
presumption of his innocence is certainly not
weakened but reinforced, reaffirmed and
strengthened by the trial court.
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But in exercising the power conferred by the Code
and before reaching its conclusions upon fact, the
High Court should and will always give proper weight
and consideration to such matters as (1) the views of
the trial Judge as to the credibility of the witnesses;
(2) the presumption of innocence in favour of the
accused, a presumption certainly not weakened by
the fact that he has been acquitted at his trial; (3) the
right of the accused to the benefit of any doubt; and
(4) the slowness of an appellate court in disturbing a
finding of fact arrived at by a judge who had the
advantage of seeing the witnesses. To state this,
however, is only to say that the High Court in its
conduct of the appeal should and will act in
accordance with rules and principles well known and
recognised in the administration of justice.”
It was stated that the appellate court has full powers to
review and to reverse the acquittal.
21.In Atley vs. State of U.P., AIR 1955 SC 807, the
approach of the appellate court while considering a judgment
of acquittal was discussed and it was observed that unless the
appellate court comes to the conclusion that the judgment of
the acquittal was perverse, it could not set aside the same. To a
similar effect are the following observations of this Court
speaking through Subba Rao J., (as His Lordship then was) in
Sanwat Singh vs. State of Rajasthan, AIR 1961 SC 715 :
“9. The foregoing discussion yields the following
results: (1) an appellate court has full power to
review the evidence upon which the order of acquittal
is founded; (2) the principles laid down in Sheo
15
Swarup case afford a correct guide for the appellate
court’s approach to a case disposing of such an
appeal; and (3) the different phraseology used in the
judgments of this Court, such as, (i) ‘substantial and
compelling reasons’, (ii) ‘good and sufficiently cogent
reasons’, and (iii) ‘strong reasons’ are not intended to
curtail the undoubted power of an appellate court in
an appeal against acquittal to review the entire
evidence and to come to its own conclusion; but in
doing so it should not only consider every matter on
record having a bearing on the questions of fact and
the reasons given by the court below in support of its
order of acquittal in its arriving at a conclusion on
those facts, but should also express those reasons in
its judgment, which lead it to hold that the acquittal
was not justified.”
The need for the aforesaid observations arose on account
of observations of the majority in Aher Raja Khimavs. State
of Saurashtra, AIR 1956 SC 217 which stated that for the
High Court to take a different view on the evidence “there must
also be substantial and compelling reasons for holding that the
trial court was wrong.”
22.M.G. Agarwal vs. State of Maharashtra , AIR 1963 SC
200 is the judgment of the Constitution Bench of this Court,
speaking through Gajendragadkar, J. (as His Lordship then
was). This Court observed that the approach of the High Court
(appellate court) in dealing with an appeal against acquittal
ought to be cautious because the presumption of innocence in
16
favour of the accused “is not certainly weakened by the fact
that he has been acquitted at his trial.”
23.In Shivaji Sahabrao Bobade vs. State of Maharashtra,
(1973) 2 SCC 793, Krishna Iyer, J., observed as follows:
“In short, our jurisprudential enthusiasm for
presumed innocence must be moderated by the
pragmatic need to make criminal justice potent and
realistic. A balance has to be struck between chasing
chance possibilities as good enough to set the
delinquent free and chopping the logic of
preponderant probability to punish marginal
innocents.”
24.This Court in Ramesh Babulal Doshi vs. State of
Gujarat, (1996) 9 SCC 225, spoke about the approach of the
appellate court while considering an appeal against an order
acquitting the accused and stated as follows:
“While sitting in judgment over an acquittal the
appellate court is first required to seek an answer to
the question whether the findings of the trial court
are palpably wrong, manifestly erroneous or
demonstrably unsustainable. If the appellate court
answers the above question in the negative the order
of acquittal is not to be disturbed. Conversely, if the
appellate court holds, for reasons to be recorded, that
the order of acquittal cannot at all be sustained in
view of any of the above infirmities it can thenand
then only reappraise the evidence to arrive at its
own conclusions.”
17
The object and the purpose of the aforesaid approach is to
ensure that there is no miscarriage of justice. In another
words, there should not be an acquittal of the guilty or a
conviction of an innocent person.
25.In Ajit Savant Majagvai vs. State of Karnataka,
(1997) 7 SCC 110, this Court set out the following principles
that would regulate and govern the hearing of an appeal by the
High Court against an order of acquittal passed by the Trial
Court:
“16. This Court has thus explicitly and clearly laid
down the principles which would govern and regulate
the hearing of appeal by the High Court against an
order of acquittal passed by the trial court. These
principles have been set out in innumerable cases
and may be reiterated as under:
(1)In an appeal against an order of acquittal, the
High Court possesses all the powers, and
nothing less than the powers it possesses while
hearing an appeal against an order of
conviction.
(2)The High Court has the power to reconsider the
whole issue, reappraise the evidence and come
to its own conclusion and findings in place of
the findings recorded by the trial court, if the
said findings are against the weight of the
evidence on record, or in other words, perverse.
(3)Before reversing the finding of acquittal, the
High Court has to consider each ground on
which the order of acquittal was based and to
record its own reasons for not accepting those
18
grounds and not subscribing to the view
expressed by the trial court that the accused is
entitled to acquittal.
(4)In reversing the finding of acquittal, the High
Court has to keep in view the fact that the
presumption of innocence is still available in
favour of the accused and the same stands
fortified and strengthened by the order of
acquittal passed in his favour by the trial court.
(5)If the High Court, on a fresh scrutiny and
reappraisal of the evidence and other material
on record, is of the opinion that there is
another view which can be reasonably taken,
then the view which favours the accused
should be adopted.
(6)The High Court has also to keep in mind that
the trial court had the advantage of looking at
the demeanour of witnesses and observing their
conduct in the Court especially in the witness
box.
(7)The High Court has also to keep in mind that
even at that stage, the accused was entitled to
benefit of doubt. The doubt should be such as a
reasonable person would honestly and
conscientiously entertain as to the guilt of the
accused.”
26.This Court in Ramesh Babulal Doshi vs. State of
Gujarat, (1996) 9 SCC 225 observed vis
àvis the powers of
an appellate court while dealing with a judgment of acquittal,
as under:
“7. … While sitting in judgment over an acquittal the
appellate court is first required to seek an answer to
the question whether the findings of the trial court
19
are palpably wrong, manifestly erroneous or
demonstrably unsustainable. If the appellate court
answers the above question in the negative the order
of acquittal is not to be disturbed. Conversely, if the
appellate court holds, for reasons to be recorded, that
the order of acquittal cannot at all be sustained in
view of any of the above infirmities it can then—and
then only—reappraise the evidence to arrive at its
own conclusions.”
27. This Court in Chandrappa & Ors. vs. State of
Karnataka, (2007) 4 SCC 415, highlighted that there is one
significant difference in exercising power while hearing an
appeal against acquittal by the appellate court. The appellate
court would not interfere where the judgment impugned is
based on evidence and the view taken was reasonable and
plausible. This is because the appellate court will determine
the fact that there is presumption in favour of the accused and
the accused is entitled to get the benefit of doubt but if it
decides to interfere it should assign reasons for differing with
the decision of acquittal.
28. After referring to a catena of judgments, this Court culled
out the following general principles regarding the powers of the
appellate court while dealing with an appeal against an order of
acquittal in the following words:
“42. From the above decisions, in our considered
view, the following general principles regarding
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powers of the appellate court while dealing with an
appeal against an order of acquittal emerge:
(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
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appellate court should not disturb the finding
of acquittal recorded by the trial court.”
29.In Nepal Singh vs. State of Haryana– (2009) 12 SCC
351, this Court reversed the judgment of the High Court which
had set aside the judgment of acquittal pronounced by the trial
court and restored the judgment of the trial court acquitting
the accused on reappreciation of the evidence.
30. The circumstances under which an appeal would be
entertained by this Court from an order of acquittal passed by
a High Court may be summarized as follows:
A) Ordinarily, this Court is cautious in interfering with an
order of acquittal, especially when the order of acquittal
has been confirmed upto the High Court. It is only in
rarest of rare cases, where the High Court, on an
absolutely wrong process of reasoning and a legally
erroneous and perverse approach to the facts of the case,
ignoring some of the most vital facts, has acquitted the
accused, that the same may be reversed by this Court,
exercising jurisdiction under Article 136 of the
Constitution. [State of U.P. v. Sahai, AIR 1981 SC
1442]
22
Such fetters on the right to entertain an appeal are
prompted by the reluctance to expose a person, who has
been acquitted by a competent court of a criminal charge,
to the anxiety and tension of a further examination of the
case, even though it is held by a superior court.
[Arunachalam v. Sadhananthan, AIR 1979 (SC) 1284]
An appeal cannot be entertained against an order of
acquittal which has, after recording valid and weighty
reasons, has arrived at an unassailable, logical
conclusion which justifies acquittal. [State of Haryana
v. Lakhbir Singh, (1990) CrLJ 2274 (SC)]
B) However, this Court has on certain occasions, set
aside the order of acquittal passed by a High Court. The
circumstances under which this Court may entertain an
appeal against an order of acquittal and pass an order of
conviction, may be summarised as follows:
i)Where the approach or reasoning of the High
Court is perverse:
a)Where incontrovertible evidence has been
rejected by the High Court based on suspicion
and surmises, which are rather unrealistic.
23
[State of Rajasthan v. Sukhpal Singh, AIR
1984 SC 207]
For example, where direct, unanimous accounts
of the eyewitnesses, were discounted without
cogent reasoning; [State of UP v. Shanker, AIR
1981 SC 879]
b)Where the intrinsic merits of the testimony of
relatives, living in the same house as the victim,
were discounted on the ground that they were
‘interested’ witnesses; [State of UP v. Hakim
Singh, AIR 1980 SC 184]
c)Where testimony of witnesses had been
disbelieved by the High Court, on an unrealistic
conjecture of personal motive on the part of
witnesses to implicate the accused, when in fact,
the witnesses had no axe to grind in the said
matter. [State of Rajasthan v. Sukhpal Singh,
AIR 1984 SC 207]
d)Where dying declaration of the deceased victim
was rejected by the High Court on an irrelevant
ground that they did not explain the injury found
on one of the persons present at the site of
24
occurrence of the crime. [Arunachalam v.
Sadhanantham, AIR 1979 SC 1284]
e)Where the High Court applied an unrealistic
standard of ‘implicit proof’ rather than that of
‘proof beyond reasonable doubt’ and therefore
evaluated the evidence in a flawed manner.
[State of UP v. Ranjha Ram, AIR 1986 SC
1959]
f)Where the High Court rejected circumstantial
evidence, based on an exaggerated and capricious
theory, which were beyond the plea of the
accused; [State of Maharashtra v.
ChampalalPunjaji Shah, AIR 1981 SC 1675]
or where acquittal rests merely in exaggerated
devotion tothe rule of benefit of doubt in favour of
the accused. [Gurbachan v. Satpal Singh, AIR
1990 SC 209].
g)Where the High Court acquitted the accused on
the ground that he had no adequate motive to
commit the offence, although, in the said case,
there was strong direct evidence establishing the
guilt of the accused, thereby making it
25
unnecessary on the part of the prosecution to
establish ‘motive.’ [State of AP v. Bogam
Chandraiah, AIR 1986 SC 1899]
ii)Where acquittal would result is gross miscarriage
of justice:
a)Where the findings of the High Court,
disconnecting the accused persons with the
crime, were based on a perfunctory consideration
of evidence, [State of UP v. Pheru Singh, AIR
1989 SC 1205] or based on extenuating
circumstances which were purely based in
imagination and fantasy. [State of Uttar
Pradesh v. Pussu 1983 AIR 867 (SC)]
b)Where the accused had been acquitted on
ground of delay in conducting trial, which delay
was attributable not to the tardiness or
indifference of the prosecuting agencies, but to
the conduct of the accused himself; or where
accused had been acquitted on ground of delay
26
in conducting trial relating to an offence which is
not of a trivial nature. [State of Maharashtra v.
ChampalalPunjaji Shah, AIR 1981 SC 1675]
[Source : Durga Das Basu – “The Criminal Procedure
Code, 1973” Sixth Edition Vol.II Chapter XXIX]
31. Bearing in mind the aforesaid discussion, we shall
consider the evidence on record.
32. PWs1, 3, 4 and 7 are related to each other and they are
the soninlaw, cousin and sons of the deceased Chhote Lal
Mahto, respectively. PW1 in his examinationinchief has
stated that on 10.03.2005 at about 05.00 p.m., he saw Munna
Ram, Mahendra Ram, Upendra Ram, Dappu Ram and other
persons come near his shop and started abusing Chhote Lal
Mahto (deceased) and his son Rajesh Prasad, appellant herein.
That Munna Ram threw a bomb on Chhote Lal Mahto and as a
result, he died. O.P. Verma also died as a result of Mahendra
Ram throwing a bomb at him. The third bomb was thrown on
the street and it did not injure anybody. At the same time, 20
to 25 people came to the spot, caught hold of a person, namely
27
Ashok Yadav and started beating him, as a result of which, it
was “heard” that he had died. However, in his cross
examination, PW1 has stated that the accused and other
persons were abusing each other. He has also stated that he is
not aware whether the police lodged a case before Rajesh
Prasad (PW7) or not. He has feigned ignorance about anything
that happened before the incident. He has also stated that the
deceased Chhote Lal Mahto is his fatherinlaw. He has
deposed that due to the explosion of the bomb, the area was
covered with smoke and the Betel shop was not visible. He has
also admitted that in his statement to the Police, he had stated
that Mahendra Ram, Upendra Ram and Dhappu Ram came to
his shop and started abusing his fatherinlaw. Chhote Lal
Mahto pleaded not to do so and also not to sell illicit liquor.
That after abusing, they went away and returned ten minutes
later. However, he has admitted that he does not remember
whether he has stated before the Police that Upendra Ram
started shouting and directed Mahendra Ram to get hold of the
deceased and after that, Mahendra Ram threw a bomb. He has
further stated that it is wrong to suggest that his fatherinlaw
and other persons died due to hurling of bombs by Ashok
Yadav and other unknown persons.
28
33. PW2/Prabhat Kumar Singh has stated that he runs a PCO
(Public Call Office) booth and on 10.03.2005 at about 05.00
p.m., he was at the booth. That there was an altercation
between Rajesh Prasad (PW7) and Mahendra Ram, Upendra
Ram and Dhappu Ram. That Munna Ram threw a bomb at
Chhote Lal Mahto's betel shop which hit him on his head and
as a result of which his head was blown off. That PW2 also
came in contact with the splinters of the bomb and was injured
as a result of the same. That he was baffled after seeing the
dead body of Chhote Lal Mahto and left the spot after closing
his shop. However, during cross examination he has stated
that he left the spot thirty minutes after the explosion.
34.He has also admitted that he is under police security as
he has been threatened by the accused that if he deposes
against them, he must be ready to face the consequences. That
is why he went to the police station the previous evening and
has deposed under police security. He has stated that he does
not recognise Uday Prakash Mandal who was present in the
Court. PW2 has stated that he is a tenant in the house of
Rajesh, the informant and that he signed the affidavit that was
prepared based on his statements which he had made as
29
“advised” by his advocate. He has also admitted that he had
not seen Rajesh, Naresh or any of their family members beating
Ashok Yadav. That the people left the scene of occurrence after
the altercation amongst them ended. He has stated that after
the occurrence, an associate of Munna Ram had caught hold of
him. That Chandrabhanu Prasad’s family helped Munna Ram
flee from the spot.
35.PW3 / Naresh Prasad @ Naresh Mahto has stated that on
10.03.2005, he saw Munna Rai (to be read as “Munna Ram”)
along with unknown persons hurling abuses in front of his
betel shop, stating that he would destroy anyone who
interfered with his business. His brother Rajesh Prasad (PW7)
came out of his house and tried to pacify Munna Rai but he
threatened that he would blow off his entire family with the
bomb. After such threat, he left the spot only to return after
ten minutes along with Mahendra Rai, Upendra Rai (to be read
as “Upendra Ram”) and Happu Rai (to be read as “Dhappu
Ram”). That Munna Rai threw a bomb at the betel shop in
which his father was sitting, as a result of which his father's
head was blown away and he died on the spot. Another bomb
was blasted by Munna Rai and a pedestrian, namely, O.P.
Verma died. That he went near his father and started crying.
30
He does not know what happened thereafter. He is also not
aware as to who else signed the seizure list on which his
signature was found. While he identified the accused Munna
Rai, Mahendra Rai, Upendra Rai, Happu Rai, Bhanu Ji
(Chandrabhanu Prasad), he did not recognise another person,
who was one among the accused. He had already stated that
he did not see Chandrabhanu Prasad at the place of the
occurrence.
36.In his crossexamination, he has stated that there is no
personal enmity with the accused and his family members. In
fact, there was "Nyota Pehani" (invites exchanged) between
their families. He has also denied that there was any quarrel
between him and Ashok Yadav and others such as Munna Rai.
He has also denied that he and his family members beat up
Ashok Yadav and others, as a result of which they came and
threw a bomb in anger. He has also denied Happu's tea shop
was looted on the day of occurrence. He has also denied that
the police came at the place of occurrence within five minutes.
That the Station House Officer, Kotwali P.S. did not record his
Fardbayan at that time, but he took statement of Rajesh,
Umesh, other villagers and PW3. That the Daroga did not
write Fardbayan in his presence, but took his signature on a
31
plain paper and he does not know what was written in the
application on the same. He has also stated that he is not
aware of what was written in the application to register FIR
given by his brother as he was asleep when such an
application was made.
That, in his statement to the police, he has stated that
Munna Rai and unknown persons came to his betel shop and
started hurling abuses. That he does not remember whether he
had told the Police that bombs were blasted by the accused.
37.Umesh Prasad Rai is PW4 who has spoken about the
abuses of Mahendra Rai, Upendra Rai, Munna Rai, Dhappu
Rai to the effect that whoever interfered with or obstructed
their illegal work would be blown away by a bomb. Munna Rai
then threw a bomb at the betel shop in which Chota Lal Mahto
was sitting and as a result of which, his head blew up.
Mahendra Rai then threw a second bomb which hit a passerby,
O.P. Verma who was standing near M/s. Aditya Electronics
and the third bomb was blasted by Upendra Rai which fell on
the road and exploded. Thereafter, he went near the body of
Chhote Lal Mahto and kept crying. On hearing the sound of
the bombs, several people gathered at the place of occurrence.
32
That the inquest report of Chhote Lal Mahto was made before
him and he had signed it.
38.In his crossexamination, he has stated that Chhote Lal
Mahto was his uncle. He has stated that before the occurrence
abuses were hurled but he has no knowledge of any pre
existing scuffle between the accused and his brothers Rajesh
and Naresh (sons of the deceased). That he had not informed
the nearby police station after seeing the incident, but
information was sent by someone else to the Police officers who
arrived after ten minutes. The police did not record his
statement on the day of the occurrence. He has also admitted
that his Fardbayan was not in his handwriting and that
though he is an advocate, before signing the Fardbayan he did
not read it. He has stated that there was no dispute between
Rajesh and Ashok relating to illicit liquor and it is not true that
it was in the course of such dispute that there was a scuffle
and unknown persons blasted bombs in which his uncle and
another person died. He has stated that no bomb was thrown
at the residence of Naresh and Rajesh or at his house. That
after two months and twenty days after the occurrence, he
went to get his statement recorded because no officer came to
record his statement. That, when the first bomb was blasted
33
there was a stampede and he does not remember whether the
shop keepers started shutting down their shops as there was
much darkness. That he has not read the supervision note of
SP and DSP. He has no knowledge that SP had given
directions for recovering illicit liquor from the house of Rajesh,
etc.
39.PW7/Rajesh Prasad is the informant who is the son of
the deceased Chhote Lal Mahto and the appellant herein. In
his examinationinchief, he has stated that on 10.03.2005 at
about 05.00 p.m., he was at the door of his house and he saw
Mahendra Rai, Upendra Rai and Munna Rai and other
unknown persons come near his house, threatening that they
would blow up his entire family with a bomb. Immediately,
Munna Rai threw a bomb carried by him on his father Chhote
Lal Mahto who was sitting in his betel shop and the back
portion of his father's head blew away resulting in his instant
death. Thereafter, Mahendra Rai threw another bomb near
M/s. Aditi Electronics which hit O.P.Verma, a passerby, as a
result of which his head blew away and he also died on the
spot. Then Upendra Rai threw the bomb which fell on the road
and exploded. The accused threatened them once again and
fled the scene. That the reason behind the incident is that the
34
accused were carrying on illegal business of liquor and he and
his family members opposed the same and hence, there was a
conspiracy and a common intention in pursuance of which his
father was killed. That he filed a written complaint under his
signature at the police station (Exhibit No.2/2). The Death
Review Report of the dead body of his father was prepared in
his presence and he had signed it (Exhibit No.4/1). He also
identified six accused persons present in the Court.
40.In his crossexamination, he has stated that he did not
see Chandrabhanu Prasad at the place of the incident. He did
not see Dhappu Rai from the start to the end of the incident.
That the written complaint which he had prepared was read
over and some of it was heard. He did not read it completely.
The complaint was made in the police station in the evening at
06.00 p.m. That he had engaged a private lawyer to present
his case. That the first information report was not read over to
him. That he does not know completely as to what is written in
the first information report. He also does not know as to what
he had mentioned in the protest petition. That his lawyer had
given him the first information report, so written and he had
just signed the protest petition and he had not gone through it
35
and understood it. That none of his brothers or relatives have
ever read the case diary, supervision note and protest petition.
41.He has also admitted that there was no dispute or
litigation between the family of Mahendra, Upendra, Munna,
and his family. That on the date of the alleged incident, some
heated exchanges between his father and Munna took place,
but he does not know whether he has stated the said fact in
the first information report or in his protest petition or before
the Police. He has also denied that there were any disputes
between them before the incident. He also does not know
whether the police was informed immediately after the
incident. That the police came at the scene of the crime at
about 05.00 and 05.30 p.m., but he does not know which
particular police officer came there. He has also no knowledge
as to whether the inspector recorded the Fardbayan or whether
the statements of Upendra, his brother or his family members
were recorded by the police on the same day or not, but his
statement was recorded.
42.Further, in his crossexamination, PW7 has further
denied that he had made any statement before the inspector,
SP or DSP that before the incident at about 04.00 to 04.30
36
p.m., the accused abused the villagers in unparliamentary
language and when they could not tolerate it any more, they
came out of the house and abused them. The accused
threatened and went away. He also denied making any
statement to the effect that Upendra Rai exploded the bomb
which blew up after striking the road. He has confirmed the
statement he made before the Inspector, SP and DSP that a
bomb was exploded by Mahendra Rai near M/s. Aditi
Electronics, which hit O.P. Verma, a passerby and he died on
the spot. He had also admitted that he does not recall whether
he had got recorded in his Fardbayan with the police that while
running away, one of the accused was caught hold of by the
people and was nearly beaten to death. He has further stated
that he does not recall any other aspect of the case. For better
appreciation of the same, it would be useful to extract
paragraph 21 of his deposition as under:
“21.I do not recall that whether I had got recorded
in my Fard Beyan with the Police that while running
away, one accused was caught by the people and
after giving him beatings put him almost to death. I
do not recall that I gave the statement to the Police
that I pulled up my sock and caught the hold of
Munna Rai, who was freed by Chandrabhan and
brother of Munna Rai and he ran away. I do not
recall that I had stated that then Chandrabhan and
Tappu said that our work is finished now and they
ran away from there. It is not like that Mahendra,
Upendra and Munna have not committed the
37
incident and therefore, I am saying every time that I
do not know."
Further, in paragraph Nos.25 and 26, PW7 the informant
(the appellant) has stated as under:
"25.It is not like that my brother, brotherinlaw,
Umesh and I together beat up the unknown
criminals very badly near junction turn and they got
annoyed and one of them said that just stay here we
are coming back in few minutes and then they
exploded the bombs. It is not like that just minutes
after, criminals came there with bombs and while
abusing to kill me, my brother, Umesh and brother
inlaw and then we ran towards our house to save
our life and then they threw the bomb, which fell
near Aditi Electronics and we succeeded in escaping
from there and closed ourselves inside the house and
when they could not find us, unknown criminals
exploded the bomb on our father in our Pan Shop. It
is not like that when the accused persons after
exploding the bomb started running away, people of
the village raised the alarm and then all people
gathered and managed to catch one of the criminals
and beat up him to death. It is not like that when we
heard the noise of the villagers that illegible ,
we came out after opening the door and we together
beat up the unknown criminal. It is not like that we
did not say in the loud voice before the people of the
village that he works on the shop of Tappu Rai and
Munna Rai, rob him and then we looted the shop of
Tappu Rai and Munna Rai and destroyed it. Tappu
Rai has no shop.
26.Tappu Rai has the tea shop at crossing in front
of the Court of CJM, which has now destroyed. It is
not like that when we asked the people to rob and
damage the shop of Tappu Rai and Munna Rai,
Mahendra and Upendra of his family and other
members of his family came and they opposed our
above intention and then we hatched the conspiracy
38
and prepared a new application and submitted it
with the Police Station in night at 9.00 pm in order to
implicate them."
In his further crossexamination, in paragraph 29, PW7
he has stated as under:
"29.…… I could not say that any pellet of the bomb
hit any passerby and person in traffic. It just hurt O.
P. Verma only. I did not make any such statement
before the Police and DCP that in total five bombs
were exploded. It is not like that I said that in total
five bombs were exploded."
With regard to his statements before the DSP, PW7 has
categorically stated as under:
"31.My statement was not recorded before the DSP
Sahab. Again stated that I do not know whether I
made the statement before the DSP Sahab or not. I
do not know that I request the SP in the protest
petition to handover the investigation to some
Superior Officer. SP had gone for supervision or not,
I cannot tell anything in this regard.
32.It is not like that on the order of DIG, SP had
carried out the inspection of the scene of crime
personally. I cannot tell anything in this regard. It is
not like that in order to conceal the truth of the
incident, I am stating that I am illiterate and
concealing the fact regarding inspection carried out
by SP Sahab.
33.It is not like that I made the statement to the
SP that Naresh, Bablu, Aatish and I beat up Ashok
Yadav very badly and when Munna came for his
rescue, we also beat up him and then he ran away
from there to save his life. (Objected to)."
39
With regard to the aspect of bombs being hurled, PW7 at
paragraphs 35 and 36 has stated as under:
"35.It is incorrect to state that when first
bomb exploded, stampede took place in the
traffic and people started concealing
themselves in order to save their life and
shop started closing and we after saving our
life ran away from there. It is incorrect to
state that thereafter Ashok Yadav threw the
bomb on my Pan Shop in its explosion my
father had died and thereafter people of the
village caught the hold of Ashok Yadav and
beat up him till he died.
36. It is incorrect to state that quarrel took
place with Ashok Yadav on demanding
balance amount from him and he was beaten
up and due to above reason, he exploded the
bombs."
43.PW9/Mani Lal Sahwas was the SubInspector posted at
P.S. Kotwali, Munger, on 10.03.2005. He has stated that he
received information through telephone about the incident at
about 17.15 hours and he, along with SubInspector Md. Azhar
and K.K. Gupta, along with an armed force left for Bhadeopur
Gola Road and reached there at 17.20 hours. On arriving
there, Rajesh Prasad, S/o. Late Chhote Lal Mahto gave a
written application (Exhibit 3/3) about the cognizable offence.
On the basis of the said application, he took up the
investigation of the case at the place of occurrence and during
the course of investigation, the statement of the informant was
40
taken again and a case was registered. Thereafter, the inquest
report of Chhote Lal Mahto was prepared (Exhibit 4/2), so also
the inquest report of the deceased O.P.Verma was prepared.
Their bodies were sent for post mortem at 19.30 hours to
Sadar Hospital, Munger along with a constable. The remains
of the bomb were collected and seizure list was prepared
(Exhibit 1/2), so also the blood stained soil was collected and
the seizure list is at Exhibit No.8. That the dead body of
Chhote Lal Mahto was brought out of the betel shop by the
relatives of the deceased. Inside the Betel shop, there was
blood and flesh scattered as the head and upper neck of the
deceased Chhote Lal Mahto was blown away. The occurrence of
second blast was approximately 40 to 45 yards towards the
north of the betel shop of the deceased, near M/s. Aditya
Electronics on the footpath. The deceased was identified as
Om Prakash Verma, a tea seller. Similar seizures were made at
the scene of occurrence.
44.He further stated that Santosh Kumar Patil and Anil
Mahto gave their statements on the same day. The accused
were absconding. On the same day, the statements of other
persons were recorded and on 12.03.2005 at about 06.40 a.m.,
the accused Munna Rai and Dhappu Rai were arrested.
41
Subsequently, on 18.04.2005, the investigation was transferred
to another officer.
45.In his crossexamination, the said witness has stated that
Rajesh Prasad, the informant, did not state about Mahendra
Rai and Uppendra Rai blasting bombs. Referring to the
Fardbayan that was recorded at the place of occurrence, PW9
has stated as follows: That the informant’s statement does not
record that Mahendra Rai, Uppendra Rai, Dhappu Rai were
present; Instead, he has stated that Munna Rai went home to
bring bombs and at that time, his brother was also there. That
Umesh Prasad did not say that he was at his gate at the time
when Munna Rai, Mahendra Rai, Uppendra Rai and Dhappu
Rai were abusing and saying that whoever objects to their
illegal activity would be blown up. That Umesh Prasad did not
mention in his statement that the second bomb was blown by
Mahendra Rai which hit a passerby by name O.P.Verma who
was standing near M/s. Aditya Electronics and his head was
blown away. Similarly, there was no statement that third
bomb was blasted by Mahendra Rai, which fell on the street
and made a loud noise.
42
46.Also, in the Fardbayan as well as in his statement, Rajesh
Prasad, the appellant herein, had not stated that Munna Rai,
Uppendra Rai, Mahendra Rai and Dhappu Rai came near his
father's betel shop and started abusing and upon retaliation by
his father, there was heated argument and they threatened to
blow him up with a bomb.
47.PW8 /Santosh Kumar Patel, in his examinationinchief
has stated that on 10.03.2005 at about 05.00 p.m. he was
standing near his gate and he saw the accused and Chhote Lal
Mahto engaged in indecent and foul abuses and heard threats
of the accused to blow up the family of Chhote Lal Mahto with
bombs and further, that Chhote Lal Mahto's head was blown
up by Munna Rai. That O.P. Verma died in another bomb
attack. But in his cross examination, he has stated that he
could not have seen the occurrence of the incident from his
house which is 100 yards away. He has further stated that his
statement was recorded by the police at the place of occurrence
and on the day of occurrence at 08.00 in the night. But he had
not told the police that the third bomb was thrown on the road
which did not hit anyone. Soon thereafter, the people of the
area gathered and the people got aggressive and tried to catch
hold of both the miscreants. He has further admitted that he
43
did not state that the bomb was thrown at Rajesh's shop where
his father was sitting and the bomb hit him.
48.On a consideration of the aforesaid evidence, we find that
PW7, who is the informant in his evidence, has resiled from
what he had initially stated to the Police even though he claims
to be an eyewitness to the occurrence. It has been established
that Chandra Bhanu Prasad, though a resident of the locality,
was not present during the occurrence of the incident.
Similarly, the presence of Dhappu Ram and Fantush Mandal is
doubted by PW8. In fact, the Investigating Officer / PW9 has
also corroborated the fact that PW7 had not stated anything
about the bombs being thrown by Mahendra Ram, Upendra
Ram and that there was no mention of Dhappu Ram. In the
deposition of PW3, there has been no mention of Dhappu
Ram, Munna Ram and Mahendra Ram as also in the evidence
of PW2. Further, PW4 who is an advocate and who is said to
have prepared the written report, has not been categorical in
his evidence. It is denied by PW8 who is also an advocate and
an attesting witness to the written report, that the bomb was
thrown at the informant’s shop and that it hit the informant’s
father who died as a result of the same.
44
49.On the basis of the aforesaid evidence, the High Court,
during the course of its reasoning, has come to the following
conclusions:
a)The written report is specific but it attributes a trivial
role to Chandrabhanu Prasad who was accompanied
by Dhappu Ram and others. On the orders of
Chandrabhanu Prasad, three bombs were thrown.
Chandrabhanu Prasad freed coaccused Munna Ram
when he was apprehended.
b)PW7, the informant, was an eyewitness to the
occurrence. In his cross examination, he stated that
he had never seen Chandrabhanu Prasad and
Dhappu Ram, who were residents of the same locality
and were well known to him, present at any time
throughout the occurrence. He also refused to identify
Fantus Mandal whose name arose during
investigation.
c)PW2 stated that Chandrabhanu Prasad was a
resident of the locality and was known to him but was
not present during the entire occurrence. To the same
effect is the statement of PW3 and PW4. PW8 also
45
stated that Dhappu Ram and Fantus Mandal were not
present.
d)However, PWs 1, 2, 3 and 4 spoke about the presence
of Dhappu Ram and gave his name in their
statements under section 161 of Cr.PC.
e)PW9, the Investigating Officer, has stated that the
informant in his statement under section 161 Cr.PC
had not stated anything about throwing of bombs by
Mahendra Ram and Upendra Ram and neither had he
named Dhappu Ram.
f) That during the course of the trial, PW3 had not
named Dhappu Ram, Munna Ram and Mahendra
Ram and PW2 had likewise not named Munna Ram,
Mahendra Ram, Upendra Ram and Dhappu Ram.
g)PW7 had not stated anything about any accused
being apprehended and beaten up. In his restatement
also, he did not state that Munna Ram, Mahendra
Ram, Upendra Ram and Dhappu Ram had come to
the shop of his father and indulged in abuse.
h)Likewise, PW8 had also not made any statement, as
was being deposed in Court.
In view of the above, the High Court held as under :
46
“The contradiction in the statement of the
prosecution witnesses as stated during investigation
and in the trial having been pointed out to them in
the manner provided for in section 145 of the
Evidence Act, and corroborated by the Investigating
Officer, under section 157 of the Evidence Act lends
credence to the allegation of the defence that an
entirely new case was sought to be made out by the
prosecution for what was essentially a different
manner and sequence of events.”
i) The police stated that they had arrived at the place of
occurrence within 20 minutes of the incident i.e. at
5.20 pm which fact has been corroborated by PW7,
the informant and other prosecution witnesses. PW7
denied any written report given to the police station at
9.00 pm. He stated that he had signed the written
report prepared by PW4 but was not aware of its
contents.
j) According to PW7, PW4, who is an advocate and is a
cousin of PW7, prepared a written report. PW7
admitted that he is an attesting witness to the FIR but
denied full knowledge or reading of the same before
signing.
k) Similar is the denial by PW8, a relative of PW7. PW8
is also an advocate and an attesting witness to the
written report.
47
50.On the aforesaid evidence the High Court observed as
under :
“They were not rustic witnesses but were practicing
advocates fully aware of the nature and importance
of the documents they were signing. It is not possible
to accept their contention that they signed it
unaware of the full contents. It raises serious doubts
that they were attempting to conceal something.”
51.With regard to the written report, the High Court has
noted from the evidence as under :
“There is no explanation for this delay, though he
could be presumed to be present at the Police Station
when the written report was handed over to the
police.”
52.The High Court has also noted flaws in the investigation of
the case and in the evidence of the prosecution witnesses
which are culled out as under:
(i)PW7 said that PW4 drew up the written report
while PW4 denied the same.
(ii)While PW1 and PW3 were related to the deceased
and signed the seizure list immediately after the
occurrence, yet PW3 had stated that he was not
aware of the other signatory to the seizure list.
(iii)The statement of PW1, who was a witness to the
seizure list as well as an eyewitness , was recorded
48
by the police one and half months later with no
explanation either by the witness or by the police.
(iv)Similarly, statement of PW4 who is an eyewitness
and a witness to the inquest report of the deceased
and who is stated to have drawn up the written
report given to the police, was recorded by the police
after two months and twenty days. The High Court
has noted that there is no explanation for the delay,
though he could be presumed to be present at the
Police Station when the written report was handed
over to the Police.
(v)PW2, the shop owner of the PCO booth adjoining
the betel shop of the deceased, was also allegedly
injured during the occurrence but there is no injury
report.
(vi)The contradiction in the evidence of PW3 is noted
as under :
”That PW3 has stated that the police
came within 20 to 25 minutes and took
the statement of the informant, PW3 and
others, but he has stated that PW7 gave
written report to the police at 9 p.m.,
that he was sleeping at that time and
unaware about it yet he stated that the
report may have been given at 8.30 p.m.
PW7 on the other hand has stated that
the written report was given to the police
49
at 6 p.m., at the police station and had
denied of having given any report to the
police at 9 p.m. On the other hand, PW
9 who is IO in the matter stated that
PW7 gave him the written report
immediately after he reached the place
of occurrence.”
(vii)While the prosecution witnesses alleged throwing of
three or more bombs, the Investigating Officer
stated that he found signs only of two explosions;
first one being at the betel shop of the deceased and
the second one near M/s Aditya Electronics, located
4045 yards north of the site of the first explosion.
53.With regard to explosions which took place on the date of
incident, the High Court has considered the evidence of PW7,
PW1, and PW9 and observed as under:
“This Court on consideration of the aforesaid material
and nature of evidence is satisfied that the
allegations against the accused cannot be stated to
have been proved beyond all reasonable doubts. The
several inconsistencies, contradictions in the
statement of the witnesses and other necessary
materials leave this Court satisfied that they have
attempted to conceal more than they have sought to
reveal of the occurrence. A different manner and
sequence of the occurrence appears to have been
presented by the prosecution for their convenience in
a truncated manner implicating those desired and
exonerating those against whom the allegations were
originally made also. There is not a semblance of an
explanation for exonerating those earlier accused
with a primal role and those with regard to whom no
50
statement was made before the Police. All these
factors cast a serious doubt on the prosecution case.
The informant, in Court, has given up the entire
genesis and the manner of occurrence when the two
coaccused have been exonerated. The informant
having implicitly accepted false implication, cannot
be trusted of telling the truth. The principle of falsus
in uno, falsus in omnibus has no application in the
facts of the case, when the prosecution has itself
knocked out the basis edifice of its own case as
distinct from peripheral issues.
The prosecution despite the nature of evidence given
by its witnesses, did not consider it necessary to re
examine them under Section 137 of the Evidence Act
or crossexamine them under Section 154 of the
same.
The illicit liquor trade rivalry revealed during trial
between the two sides, leaves this Court satisfied
that in the facts and circumstances of the case, the
charge cannot be stated to have been proved beyond
all reasonable doubt. On the contrary, the
prosecution has created a cobweb for itself and
enmeshed itself, the benefit of which has to go to the
accused.
Unfortunately, the trial court ignoring all these
crucial issues inverted the law to hold that the
defence was based on surmises and conjectures to
hold the appellants guilty and there could not be two
views of the occurrence to grant any benefit to the
accused. And all this, while unquestionably granting
acquittal to Chandra Bhanu, Dhappu Ram and
Fantus as a case of no evidence. This Court finds it
difficult to uphold the conviction let alone the death
sentence.
The manner in which the trial proceeded as noticed
above, leaves the impression that the prosecution
witnesses considered the court room as a playing
field for a friendly match. Unfortunately, the trial
court assumed the role of a referee forgetting the
51
important role that it had to play in the dispensation
of justice dealing with the serious issue of a death
sentence and life imprisonment affecting not only the
liberty but also the life of a citizen.
The subversion of the legal maxim presumed
innocent till proved guilty to say the least was
unfortunate.
We are satisfied that the present case is a fit case for
initiating proceedings of perjury against P.W.7,
Rajesh Prasad son of Late Chhote Lal Prasad. We,
accordingly direct the trial court to initiate
proceedings, hold inquiry in accordance with law and
pass appropriate orders.”
54.We have extracted the observations made by the High
Court while reversing the judgment of conviction giving
categorical reasons for doing so. We also observe that the Fast
Track Court has failed to appreciate the evidence of PWs1, 3, 4
and 7 in their proper perspective and has further failed to
recognise the fact that PW7/the appellant herein did not at all
support the case of the prosecution although he was the
informant and hence, erroneously convicted the accused and
sentenced two of them with death penalty and the third
accused with imprisonment for life. In our view, the High
Court was, therefore, justified in reversing the judgment and
order of conviction passed by the FastTrack Court.
52
55.It is also noted that the State has not filed any appeal
against the judgment and order of acquittal passed by the High
Court.
56.Having reappreciated the evidence of the witnesses, we
find that the High Court was justified in reversing the
judgment of conviction and sentencing the two of the accused,
namely Munna Ram and Mahendra Ram with death penalty
and imposing Upendra Ram to undergo life imprisonment and
instead acquitting all the accused.
57. Further, the High Court has stated that this is a fit case
for initiating proceedings of perjury against the appellant (PW
7) herein. No doubt, the appellant herein who was the
informant did not at all support the case of the prosecution
during trial and as a result, the High Court acquitted the
accused. However, having regard to the facts and
circumstances of these cases and bearing in mind that there
were two deaths in the incident that occurred on 10
th
March,
2005 which has not been proved beyond reasonable doubt, we
set aside only that portion of the impugned judgment and order
directing the trial court to initiate proceedings of perjury
53
against the appellant herein. We affirm the rest of the
judgment and order of acquittal passed by the High Court.
58.The appeals are allowed in part to the aforesaid extent
only.
……………………………..J.
[L. NAGESWARA RAO]
…………………………….J.
[B.R. GAVAI]
……………………………J.
[B.V. NAGARATHNA]
NEW DELHI;
7
th
JANUARY, 2022.
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