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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.