REPORTABLE

                  IN THE SUPREME COURT OF  INDIA             CRIMINAL APPELLATE JURISDICTION   

             CRIMINAL APPEAL NO.   1345 OF 2007

JAYANTA SIL ..  APPELLANT(S)

vs.

STATE OF ASSAM ..  RESPONDENT(S)

O  R D E R

This  is  a  statutory  appeal  arising  out  of  the  

judgment of the High Court dated 5th January, 2007.

The prosecution story is as under:

At about 10.00 p.m. on 28th August 1994 Jayanta Sil  

the appellant and Dimbeswar Sil  (since acquitted) were  

returning from the house of Kripa Das after attending  a  

feast. They were also accompanied by the deceased Kandarpa

and as the three were near the house of the deceased on PWD  

Road  the  appellant  assaulted  the  deceased  with  a  sharp  

cutting weapon.  Hearing the cries of the deceased, the  

complainant, PW.1- Bhadrata Das, the wife of the deceased,  

came out from her house and saw the accused running away.  

Her shouts  attracted several other persons to the spot  

including   Mridul Das-PW.5 and  Daya Chand-PW.6 who too  

saw the  accused  running away.

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It  also  appears  that  soon  after  the  incident

Biswajit  Das-PW.2  and  Uday  Dutta-PW.3  also  reached  the  

place from their houses  some distance away and they too  

were told by PW.1 as to what had transpired. The evidence  

further is that Jayant, the appellant herein, rushed to the  

house of Nisikanta-PW.11 in the same village and requested  

him to let him  stay for the night and when he left early  

the next day, PW.11 saw that he had left behind a khukri  

and a torch.  The appellant and Dimbeshwar were accordingly  

brought to trial for an offence punishable under Sec.302  

read with Section 34 of the IPC. The Trial Court on a  

consideration of the evidence held that the statement of  

PW.1 could not be taken at its face value as there were  

discrepancies in her statement made in the FIR vis.-a-vis.  

the statement in Court and it appeared that she had not in  

fact seen the incident nor had seen the accused running  

away after committing the murder. Likewise it was held that

the statements of PW.5 and PW.6  could not be believed as  

they were not eye-witnesses and  were not clear as to the  

exact  place  where  the  incident  had  happened  as  there  

appeared to be some uncertainty as to whether it had taken  

place outside the house of the deceased or on the road  

opposite  the gate. The Trial Court also opined that it was  

not  believable  that  an  accused  would  hang  around   long  

enough so that he could be identified  by PWs 5 and 6 as  

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this was against normal human conduct. It was further held  

that the story with regard to the recovery of a torch and

the khukry from the house of PW.11 could not be believed  

more particularly as the weapon had not been sent to the  

laboratory to find out if it bore any bloodstains.

The Trial Court accordingly  acquitted the accused.  

An appeal was thereafter taken to the High Court.  

The High Court has, by the impugned judgment, upheld the  

judgment of acquittal with respect to Dimbeswar Sil but has  

reversed the judgment qua the appellant and convicted and  

sentenced  him  herein  for  an  offence  punishable  under  

Section 302. The High Court has held that there was no  

reason whatsoever to disbelieve PW.1 or PWs. 5 and 6 as  

they had no animus against the accused. The High Court also  

observed  that  positive  prosecution  story  was  that  the  

appellant had used a cutting weapon to cut the neck of the  

deceased  and  the  medical  evidence  was  that  the  major  

structures in the neck including the carotid artery and

jugular vein, the  trachea etc.  had been cut through  and  

through.

We have heard the learned counsel for the parties.  

We see that PW.1 is the wife of the deceased.  Admittedly  

she  had  no  animus  against  the  appellant  and  had  been  

attracted to the place after hearing her husband's cries  

for help.  We have also  seen the site plan and  find that  

the occurrence took place on the  road virtually opposite  

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the house of the deceased. In this situation it would make  

no difference if it was near the gate or on the main PWD  

road as it is the admitted position that the incident had

happened right outside the house belonging to the deceased.  

The presence of the PWs. 5 and 6 cannot also be doubted.  

The deceased as well as these two witnesses had attended  

the Shradh  feast and the murder had taken place as all  

three were returning from that place. We have also gone  

through the evidence of PWs 5 and 6 and find that there is  

no suggestion of any kind of animus or  rancour between the  

appellant and them. The statements of these three witnesses  

are further corroborated by the statement of PWs 2 and 3 to  

whom PW.1 had given the information and told them that the  

appellant and Dimbeshwar had murdered  her husband.  The  

statement  of  PW.11  is  equally  important  even  if   the  

recovery of the torch or the alleged murder weapon is ruled  

out there is absolutely no doubt that his statement with  

regard to the visit of the appellant to his house late at  

night with a request that he be allowed to  stay on  cannot

be disbelieved.  This was indeed a strange request as we  

find  that  the  appellant  and  PW.11  belonged  to  the  same  

village and there is no plausible explanation as to why the  

appellant chose to stay for the  night in the house of  

PW.11 and not to return to his own house a short distance  

away.

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Mr.  Soumyajit  Pani  the  learned  counsel  for  the  

appellant has however cited Mahendra Pratap Singh vs. State  

of Uttar Pradesh [(2009) 11 SCC 334] to contend that if two  

views were possible on the evidence and the Trial Court had

taken  one in favour of an accused  the High Court would  

ordinarily not be justified in interfering in the matter.  

It has been pleaded that the Trial Court had on a deep  

consideration  of  the  evidence  taken  a  decision  and  

acquitted the accused and a contrary opinion was thus not  

called  for.   As  against  this  learned  State  counsel  has  

pointed out that it was equally well settled that while  

dealing with an appeal against acquittal,  the High Court  

was fully justified in reappraising the evidence and to  

interfere if the view taken by the Trial Court was not  

possible on the evidence and was on the contrary perverse  

and   not  to  do  so  would  amount  to  a  miscarriage  of  

justice,  and  that the interests of the accused as well as  

the  interest  of  the  State  and  the  prosecution  must  be  

balanced in such matters.

From a perusal of the judgment of the Trial Court we

find  that  the  view  taken  by  the  Trial  Court  was  not  

justified on the evidence. The Trial Court has completely  

misread  the  implication  of  the  evidence  given  by  five  

witnesses,  three of them were virtually eye witnesses and  

two of them being totally independent. The prosecution  

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evidence is further corroborated by the Doctor's evidence  

that the neck had been almost severed from the body by a  

cutting weapon such as a khukri.

Accordingly, we  dismiss the appeal.

                     .................J.          (HARJIT SINGH BEDI)

.................J.                                      (C.K. PRASAD) New Delhi,

    August 4, 2010.