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Abduction & Murder – Circumstantial Evidence – Last seen theory – in the absence of first link in the chain , the question of Last seen theory does not arise – 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. – in the absence of perversity, stupidity, incompetence , distorted conclusions – No appellant court should disturb the acquittal order of trial court – Apex court set aside the order of High court and restored the order of trial court = Shyamal Saha & Anr. ….Appellants Versus State of West Bengal ….Respondent =2014(Feb.Part) judis.nic.in/supremecourt/filename=41244

 

Abduction & Murder – Circumstantial Evidence – Last seen theory – in the absence of first link in the chain , the question of Last seen theory does not arise – 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. – in the absence of perversity, stupidity, incompetence , distorted conclusions – No appellant court should disturb the acquittal order of trial court – Apex court set aside the order of High court and restored the order of trial court =

 

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. =

 

Sometime in the morning of 21st May, 1995 the corpse of  Paritosh  was

found in the river tied to two iron chairs with a napkin  around  his  neck.

 

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

perhaps due to pouring of acid.

 

Shyamal  and Prosanta were charged with having abducted Paritosh  and  thereafter  having

murdered him.=

Conclusion of Trial court –

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  19th  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 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  11th  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 19th May, 1995.  This  was  supported  by  the

testimony of Animesh 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 19th 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  22nd  May,  1995

working backwards, it appeared that Paritosh died soon after  5.30  p.m.  on

19th 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.

 

Apex court  conclusion

 

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.”

 

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 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 19th  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.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”

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  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.

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  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. 

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.

2014(Feb.Part) judis.nic.in/supremecourt/filename=41244

RANJANA PRAKASH DESAI, MADAN B. LOKUR

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 19th May, 1995 a thermal plant of the Calcutta
Electric Supply Company had opened across 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 19th 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.
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 20th 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
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 21st 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 29th 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 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 19th 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 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 11th 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 19th May, 1995. This was supported by the
testimony of Animesh 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 19th 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 22nd May, 1995
working backwards, it appeared that Paritosh died soon after 5.30 p.m. on
19th 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 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 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.
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.”
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 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 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 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 19th 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 20th 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 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.
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 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 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 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 19th 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.
(Ranjana Prakash Desai)
….…………………………….J.
(Madan B. Lokur)
New Delhi;
February 24, 2014

 

 

 
———————–
[1] Session Trial Case No. 21 of 1997 decided by the Additional Sessions
Judge, Hooghly
[2] State of West Bengal v. Shyamal Saha and another, 113 CWN
505=MANU/WB/0881/2008
[3] MANU/SC/1096/2013
[4] AIR 1934 PC 227
[5] AIR 1945 PC 151
[6] (2007) 4 SCC 415
[7] AIR 1954 SC 36
[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
[13] (1984) 4 SCC 116
[14] (2013) 7 SCC 192

 

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