Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1490 OF 2008

Shyamal Saha & Anr. ....Appellants

Versus

State of West Bengal

....Respondent

J U D G M E N T

Madan B. Lokur, J.

1.This appeal questions the limits of interference by the High

Court in an appeal against the acquittal of an accused by the Trial

Court. In our opinion, the High Court ought not to have interfered

in the appeal before it with the acquittal of the appellants by the

Trial Court.

Facts:

2.The sequence of events, as it has unfolded from the

evidence of the witnesses, is that on 19

th

May, 1995 a thermal

plant of the Calcutta Electric Supply Company had opened across

Crl. Appeal No. 1490 of 2008 Page 1 of 21

Page 2 the river Ganges in Mauza Bhabanipur Char, District Hooghly,

West Bengal.

3.Paritosh Saha was with his mother Bidyutprava Saha (PW-5)

at about 5.00/5.30 p.m. on 19

th

May, 1995. Thereafter, he and his

nephew Animesh Saha (CW-1) aged about 10 years went for a

walk on the banks of the river Ganges where they met Gopal

Saha, with whom they struck a conversation. At that time, the

appellants Shyamal Saha and Prosanta @ Kalu Kabiraj also came

there and called Paritosh to go across the river to see the Char

(island). Animesh also expressed his desire to go to the Char but

Shyamal asked him to return home.

4.When the three of them (Paritosh, Shyamal and Prosanta)

were about to board Asit Sarkar’s boat, they were joined by Dipak

Saha (PW-6) and Panchu Sarkar (PW-11). The five of them then

went across the river Ganges and, according to Animesh, when

they reached the other side of the river, Dipak and Panchu went

towards the thermal plant while Paritosh, Shyamal and Prosanta

went in a different direction towards the jungle. Thereafter,

Animesh came back to his house.

Crl. Appeal No. 1490 of 2008 Page 2 of 21

Page 3 5.According to Bidyutprava Saha, at about 8.00 or 8.30 p.m.

Shyamal and Prosanta came to her house and asked the

whereabouts of Paritosh.

6.According to Paritosh’s brother Amaresh Saha (PW-1) at

about 10.00 p.m. Shyamal and Prosanta came to his house and

enquired about Paritosh.

7.Early next morning on 20

th

May, 1995 Bidyutprava Saha

noticed that Paritosh had not eaten his dinner which she had kept

for him. She mentioned this to Amaresh and also informed him

that Shyamal and Prosanta had come and met her the previous

evening at about 8.00 or 8.30 p.m. During the course of this

conversation, Animesh revealed to his father Amaresh that he had

seen Paritosh cross the river Ganges the previous evening in a

boat along with Shyamal and Prosanta.

8.On receiving this information Amaresh enquired from

Shyamal and Prosanta the whereabouts of Paritosh but they

informed him that they had seen him across the river with some

boys. Later in the day, Amaresh was informed by Dipak and

Panchu that they had crossed the river along with Paritosh,

Shyamal and Prosanta. After crossing the river, Dipak and Panchu

Crl. Appeal No. 1490 of 2008 Page 3 of 21

Page 4 had gone to see the thermal plant and the others had gone in

another direction towards the jungle. Dipak and Panchu pleaded

ignorance of the subsequent movements of Paritosh.

9.Later in the evening at about 7.30 p.m. Amaresh Saha

lodged a First Information Report regarding the disappearance of

Paritosh.

10.Sometime in the morning of 21

st

May, 1995 the corpse of

Paritosh was found in the river tied to two iron chairs with a

napkin around his neck. The police were informed about the

recovery of the dead body and an inquest was carried out and the

iron chairs and napkin were seized in the presence of some

witnesses. It was noticed that a part of Paritosh’s skin was burnt

perhaps due to pouring of acid.

11.On these broad facts, investigations were carried out and

Shyamal and Prosanta were charged with having abducted

Paritosh and thereafter having murdered him.

Decision of the Trial Court:

12.In its judgment and order dated 29

th

July, 1998 the Trial

Court held that neither the charge of abduction nor the charge of

murder was proved against Shyamal and Prosanta and therefore

Crl. Appeal No. 1490 of 2008 Page 4 of 21

Page 5 they were acquitted.

1

As far as the charge of abduction is

concerned, that is not in issue before us and need not detain us

any further.

13.The acquittal by the Trial Court was primarily in view of the

absence of consistency in the testimony of Amaresh, Bidyutprava

Saha, Animesh, Dipak and Panchu. For example, it was observed

that if Animesh had in fact informed Amaresh and Bidyutprava

Saha that he had gone to the banks of the river with Paritosh, it

would have been reflected in their testimony. Similarly,

Bidyutprava Saha did not say anything about Paritosh going to

the river although she saw him at about 5.00 or 5.30 p.m. on 19

th

May, 1995. The Investigating Officer, Sub-Inspector Debabrata

Dubey (PW-16) had yet another version of the events. His

testimony indicated that many of the facts stated in the oral

testimony of the witnesses were not put across to him at any

time, suggesting considerable padding and embellishments in

their testimony. As such, it was not possible to lend credence to

the testimony of the prosecution witnesses and the accused were

1

Session Trial Case No. 21 of 1997 decided by the Additional Sessions Judge, Hooghly

Crl. Appeal No. 1490 of 2008 Page 5 of 21

Page 6 entitled to the benefit of doubt. Additionally, the Trial Court noted

that it was a case of circumstantial evidence and also that there

was no motive for Shyamal and Prosanta to have murdered

Paritosh.

Decision of the High Court:

14.Feeling aggrieved by their acquittal, the State preferred an

appeal before the Calcutta High Court against Shyamal and

Prosanta. The appeal was allowed by a judgment and order dated

11

th

March, 2008.

2

The decision of the Trial Court was reversed

and they were convicted for the murder of Paritosh and

sentenced to imprisonment for life and a fine of Rs.5000/- each

and in default of payment to undergo rigorous imprisonment of

one year each.

15.According to the High Court, the case of the prosecution

hinged, essentially, on the evidence of Dipak and Panchu, as well

as of Animesh. The High Court considered their evidence and

held that all five (Dipak, Panchu, Paritosh, Shyamal and Prosanta)

crossed the river in a boat in the evening at about 5.30 p.m. on

19

th

May, 1995. This was supported by the testimony of Animesh

2

State of West Bengal v. Shyamal Saha and another, 113 CWN 505=MANU/WB/0881/2008

Crl. Appeal No. 1490 of 2008 Page 6 of 21

Page 7 who also wanted to go along with all of them but was prohibited

from doing so by Shyamal.

16.It was also held, on the basis of the post mortem report

given by Dr. P.G. Bhattacharya (PW-15) and his testimony that

Paritosh died soon after 5.30 p.m. on 19

th

May, 1995. The High

Court came to this conclusion on the basis of the doctor’s

statement that the death took place between 65 and 70 hours

before he conducted the post mortem examination. Since the

post mortem examination was conducted at about 12.00 noon on

22

nd

May, 1995 working backwards, it appeared that Paritosh died

soon after 5.30 p.m. on 19

th

May, 1995.

17.Finally, the High Court held that Paritosh was last seen with

Shyamal and Prosanta and therefore they had to explain the

events that had occurred after they were last seen together. In

the absence of any explanation offered by them, the last seen

theory would apply and it must be held that Shyamal and

Prosanta had murdered Paritosh.

Discussion on the law:

18.Aggrieved by their conviction and sentence, Shyamal and

Prosanta have preferred this appeal. The primary submission

Crl. Appeal No. 1490 of 2008 Page 7 of 21

Page 8 made on their behalf was to the effect that the High Court ought

not to have interfered in the acquittal by the Trial Court

particularly, in a case of circumstantial evidence. It was also

submitted that the evidence on record points to the fact that they

were made scapegoats by the prosecution. Of course, this was

opposed by learned counsel for the State.

19.The crucial issue for consideration, therefore, relates to

interference by the High Court in an acquittal given by the Trial

Court. Recently, in Joginder Singh v. State of Haryana

3

it was

held, after referring to Sheo Swarup v. King Emperor

4

that

“Before we proceed to consider the rivalised

contentions raised at the bar and independently

scrutinize the relevant evidence brought on record, it

is fruitful to recapitulate the law enunciated by this

Court pertaining to an appeal against acquittal.

In Sheo Swarup (supra), it has been stated that the

High Court can exercise the power or jurisdiction to

reverse an order of acquittal in cases where it finds

that the lower court has "obstinately blundered" or

has "through incompetence, stupidity or perversity"

reached such "distorted conclusions as to produce a

positive miscarriage of justice" or has in some other

way so conducted or misconducted himself as to

produce a glaring miscarriage of justice or has been

tricked by the defence so as to produce a similar

result.”

Unfortunately, the paraphrasing of the concerned passage from

3

MANU/SC/1096/2013

4

AIR 1934 PC 227

Crl. Appeal No. 1490 of 2008 Page 8 of 21

Page 9 Sheo Swarup gave us an impression that the High Court can

reverse an acquittal by a lower court only in limited

circumstances. Therefore, we referred to the passage in Sheo

Swarup and find that what was stated was as follows:

“There is in their opinion no foundation for the view,

apparently supported by the judgments of some

Courts in India, that the High Court has no power or

jurisdiction to reverse an order of acquittal on a

matter of fact, except in cases in which the lower

Court has "obstinately blundered," or has "through

incompetence, stupidity or perversity" reached such

"distorted conclusions as to produce a positive

miscarriage of justice," or has in some other way so

conducted itself as to produce a glaring miscarriage

of justice, or has been tricked by the defence so as to

produce a similar result.”

The legal position was reiterated in Nur Mohammad v.

Emperor

5

after citing Sheo Swarup and it was held:

“Their Lordships do not think it necessary to read it

all again, but would like to observe that there really

is only one principle, in the strict use of the word, laid

down there; that is, that the High Court has full

power to review at large all the evidence upon which

the order of acquittal was founded, and to reach the

conclusion that upon that evidence the order of

acquittal should be reversed.”

We are mentioning this only to dispel the possibility of anyone

else getting an impression similar to the one that we got, though

nothing much turns on this as far as this case is concerned.

5

AIR 1945 PC 151

Crl. Appeal No. 1490 of 2008 Page 9 of 21

Page 10 20.The entire case law on the subject was discussed in

Chandrappa v. State of Karnataka

6

beginning with perhaps

the first case decided by this Court on the subject being Prandas

v. State.

7

It was held in Chandrappa as follows:

“(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.”

6

(2007) 4 SCC 415

7

AIR 1954 SC 36

Crl. Appeal No. 1490 of 2008 Page 10 of 21

Page 11 21.The principles laid down in Chandrappa were generally

reiterated but mainly reformulated in Ganpat v. State of

Haryana

8

though without reference to Chandrappa and by

referring to decisions not considered therein. The reformulation of

the principles in Ganpat is as follows:

“(i) There is no limitation on the part of the appellate

court to review the evidence upon which the order of

acquittal is founded and to come to its own conclusion.

(ii) The appellate court can also review the trial court’s

conclusion with respect to both facts and law.

(iii) While dealing with the appeal preferred by the

State, it is the duty of the appellate court to marshal the

entire evidence on record and by giving cogent and

adequate reasons may set aside the judgment of

acquittal.

(iv) An order of acquittal is to be interfered with only

when there are “compelling and substantial reasons” for

doing so. If the order is “clearly unreasonable”, it is a

compelling reason for interference.

(v) When the trial court has ignored the evidence or

misread the material evidence or has ignored material

documents like dying declaration/report of ballistic

experts, etc. the appellate court is competent to reverse

the decision of the trial court depending on the

materials placed. (Vide Madan Lal v. State of J&K

9

,

Ghurey Lal v. State of U.P.

10

, Chandra Mohan Tiwari v.

State of M.P.

11

and Jaswant Singh v. State of

Haryana

12

.)”

22.Undoubtedly, we are suffering from an overdose of

precedents but be that as it may, from the principles laid down, it

8

(2010) 12 SCC 59

9

(1997) 7 SCC 677

10

(2008) 10 SCC 450

11

(1992) 2 SCC 105

12

(2000) 4 SCC 484

Crl. Appeal No. 1490 of 2008 Page 11 of 21

Page 12 appears at first blush that the High Court is entitled to virtually

step into the shoes of the Trial Court hearing submissions of

learned counsel and then decide the case as a court of first

instance. Perhaps this is not what is intended, notwithstanding

the broad language used in Chandrappa and Ganpat.

Otherwise, the decision of the Trial Court would be a meaningless

exercise and this Court would become a first appellate court from

a decision of the High Court in a case of acquittal by the Trial

Court. Realistically speaking, although the principles stated are

broad, it is the obligation of the High Court to consider and

identify the error in the decision of the Trial Court and then decide

whether the error is gross enough to warrant interference. The

High Court is not expected to merely substitute its opinion for that

of the Trial Court only because the first two principles in

Chandrappa and Ganpat permit it to do so and because it has

the power to do so – it has to correct an error of law or fact

significant enough to necessitate overturning the verdict of the

Trial Court. This is where the High Court has to exercise its

discretion very cautiously, keeping in mind the acquittal of the

accused and the rights of the victim (who may or may not be

Crl. Appeal No. 1490 of 2008 Page 12 of 21

Page 13 before it). This is also where the fifth principle laid down in

Chandrappa and Ganpat comes into operation.

Discussion on facts:

23.Looked at from this perspective, it was submitted by learned

counsel for the State that there cannot be two reasonable views

of the events that took place. It was submitted that there was no

doubt that Paritosh crossed the river Ganges with Shyamal and

Prosanta and they went to a secluded and uninhabited place

across the river. This was witnessed by Dipak, Panchu and

Animesh. Paritosh then went missing and his corpse was found a

couple of days later. It was submitted that on these facts there

can be only one conclusion, namely that Shyamal and Prosanta

caused the death of Paritosh.

24.In this context, the evidence of Dipak, Panchu, Animesh and

the Investigating Officer assumes significance. Disputing the

testimony given by Dipak and Panchu in Court, the Investigating

Officer stated that when they were examined under Section 161

of the Criminal Procedure Code they neither told him that they

had gone to the opposite side of the river nor that Shyamal and

Crl. Appeal No. 1490 of 2008 Page 13 of 21

Page 14 Prosanta had gone with Paritosh towards the jungle. There was

also no mention of the attendance of Animesh or the dress worn

by Paritosh. In other words, they did not mention any of the

events said to have taken place in their presence on the evening

of 19

th

May, 1995. From this, it is quite clear that the subsequent

statements made by them on oath appear to be add-ons and

make believe. This casts serious doubt on their credibility.

25.An independent witness Swapan Kabiraj (PW-8) who is

supposed to have seen Dipak, Panchu, Paritosh, Shyamal and

Prosanta board the boat to cross the river, turned hostile and

denied having made any statement before the Investigating

Officer. Snehalata Sarkar (PW-7), wife of the boat owner Asit

Sarkar also turned hostile and stated that their boat was, as

usual, tied to the ghat and she could not say whether it was taken

by any person on that date.

26.However, what is even more important is that Animesh

stated in Court that on the morning of 20

th

May, 1995 he had told

his father Amaresh and Bidyutprava Saha that he had seen the

abovementioned five persons cross the river in a boat the

previous evening. He also stated that he was taken by Amaresh

Crl. Appeal No. 1490 of 2008 Page 14 of 21

Page 15 to the police station and he had even mentioned this to the

police. However, Amaresh does not depose anything about having

taken Animesh to the police station. The Investigating Officer

deposed that Animesh had not been cited as a witness and “had it

been known to me that Animesh is a material witness who saw

the victim together with the accused, during investigation, he

would have been cited as a witness in the charge sheet”.

Therefore, the possibility of Animesh having been tutored cannot

be completely ruled out.

27.It is clear that there is considerable padding in the testimony

of the three crucial witnesses namely, Dipak, Panchu and

Animesh and there are unexplained additions made by them. In

this state of the evidence on record, the Trial Court was entitled

to come to a conclusion that the prosecution version of the events

was doubtful and that Shyamal and Prosanta were entitled to the

benefit of doubt and to be acquitted. We also find from the record

that a number of independent witnesses have turned hostile and,

as mentioned above, three important witnesses have added much

more in their oral testimony before the Court than what was

stated before the Investigating Officer during investigations.

Crl. Appeal No. 1490 of 2008 Page 15 of 21

Page 16 28.The High Court believed the testimony of Dipak and Panchu

and came to the conclusion that they had crossed the river along

with Paritosh, Shyamal and Prosanta. However, the High Court

did not take into consideration the view of the Trial Court, based

on the evidence on record, that it was doubtful if the five persons

mentioned above boarded the boat belonging to Asit Sarkar to

cross the river as alleged by the prosecution. The High Court also

did not consider the apparently incorrect testimony of Animesh

who had stated that he had gone to the police station and given

his version but despite this, he was not cited as a witness. The

version of Animesh was specifically denied by the Investigating

Officer.

29.When the basic fact of Paritosh having boarded a boat and

crossing the river with Shyamal and Prosanta is in doubt, the

substratum of the prosecution’s case virtually falls flat and the

truth of the subsequent events also becomes doubtful.

Unfortunately, the High Court does not seem to have looked at

the evidence from the point of view of the accused who had

already secured an acquittal. This is an important perspective as

noted in the fourth principle of Chandrappa. The High Court was

Crl. Appeal No. 1490 of 2008 Page 16 of 21

Page 17 also obliged to consider (which it did not) whether the view of the

Trial Court is a reasonable and possible view (the fifth principle of

Chandrappa) or not. Merely because the High Court disagreed

(without giving reasons why it did so) with the reasonable and

possible view of the Trial Court, on a completely independent

analysis of the evidence on record, is not a sound basis to set

aside the order of acquittal given by the Trial Court. This is not to

say that every fact arrived at or every reason given by the Trial

Court must be dealt with – all that it means is that the decision of

the Trial Court cannot be ignored or treated as non-existent.

30.What is also important in this case is that it is one of

circumstantial evidence. Following the principles laid down in

several decisions of this Court beginning with Sharad Birdhi

Chand Sarda v. State of Maharashtra

13

it is clear that the

chain of events must be so complete as to leave no room for any

other hypothesis except that the accused were responsible for the

death of the victim. This principle has been followed and

reiterated in a large number of decisions over the last 30 years

and one of the more recent decisions in this regard is

13

(1984) 4 SCC 116

Crl. Appeal No. 1490 of 2008 Page 17 of 21

Page 18 Majenderan Langeswaran v. State (NCT of Delhi) and

Another.

14

The High Court did not take this into consideration

and merely proceeded on the basis of the last seen theory.

31.The facts of this case demonstrate that the first link in the

chain of circumstances is missing. It is only if this first link is

established that the subsequent links may be formed on the basis

of the last seen theory. But the High Court overlooked the missing

link, as it were, and directly applied the last seen theory. In our

opinion, this was a rather unsatisfactory way of dealing with the

appeal.

32.Under the circumstances, we are unable to agree with

learned counsel for the State and are of the opinion that there

was really no occasion for the High Court to have overturned the

view of the Trial Court which was not only a reasonable view but a

probable view of the events.

33.Learned counsel for Shyamal and Prosanta raised some

issues such as the failure of the prosecution to examine Gopal

Saha and Asit Sarkar. He also submitted that there was no motive

14

(2013) 7 SCC 192

Crl. Appeal No. 1490 of 2008 Page 18 of 21

Page 19 for Shyamal and Prosanta to murder Paritosh. In the view that we

have taken, it is not necessary to deal with these submissions.

34.Learned counsel for the State relied on the evidence of Dr.

Bhattacharya to submit that Paritosh died between 65 and 70

hours before the post mortem examination was conducted. As

observed by High Court, this placed Paritosh’s death soon after

5.30 p.m. on 19

th

May, 1995. The significance of this is only with

respect to the time of death and has no reference to the persons

who may have caused the death of Paritosh. The evidence of Dr.

Bhattacharya, therefore, does not take the case of the State any

further.

Conclusion:

35.The view taken by the Trial Court was a reasonable and

probable view on the facts of the case. Consequently, there was

no occasion for the High Court to set aside the acquittal of

Shyamal and Prosanta. Accordingly, their conviction and sentence

handed down by the High Court is set aside. Their appeal against

their conviction and sentence is allowed.

….………………………….. J.

Crl. Appeal No. 1490 of 2008 Page 19 of 21

Page 20 (Ranjana Prakash

Desai)

….………………………....... J.

(Madan B. Lokur)

New Delhi;

February 24, 2014

Crl. Appeal No. 1490 of 2008 Page 20 of 21

Page 21 Crl. Appeal No. 1490 of 2008 Page 21 of 21