Shambhoo Missir and Another v State of Bihar
Supreme Court of India

24 July 1990
Cr.A. Nos. 133 and 150 of 1979
The Judgment was delivered by: P. B. Sawant, J.
1. These are two appeals filed by two different sets of accused who were arraigned as offenders for the incident which took place on August 19, 1967. The prosecution case is that at about 8 a.m. on August 19, 1967, one Dhanushdhari Missir (PW 1) who is the informant in the case, left his house along with his father, Rajendra Missir to harvest the crop, his father had engaged some labourers and the crop was, according to him, harvested till about 10 a.m. on that day. At about that hour, his father Rajendra started from the land to return home for his meals and the informant followed his after a little while. On the way home, the informant heard his father's cry "Jan Bachao", and on hearing it he ran towards his father and saw that accused, Shambhoo Missir and Munib Tikulihar (appellants in Appeal No. 133 of 1979) assaulting his father with garasa, and Sarabjit Chamar and Paltan Kurmi (appellants in Appeal No. 150 of 1979) with sticks. Rajendra fell down and thereafter Shambhoo, Munib and Paltan caught hold of his hands and legs and Sarabjit chopped off his nose with a hasua. Hearing the shouts and cries, several persons arrived and the accused fled away.
2. According to the prosecution further, the assault took place on the western flank of the kutccha road running north to south and adjacent to the sugarcane field of the informant. The prosecution case further is that Rajendra named the four accused persons as his assailants to whoever came near him at that time without their questioning him about it. Thereafter, Mukti Missir (PW 12) who is also the son of Rajendra and the brother of the informant and who had also seen the incident, went to the village and brought a cot on which Rajendra was taken to his house. From there, he was taken to Bettiah Hospital on a tyre-cart. On their way to the hospital, at a place called Parsauni about three miles from the place of the incident, Rajendra was placed on a truck for being taken to the hospital. But on the way, he breathed his last. The dead body was taken to the hospital and from there the Sub-Inspector of Police, Bettiah (PW 14) was informed about it. He came to the hospital and recorded the statement of the informant at about 4.30 p.m. He also held inquest. It appears that since the incident had taken place within the jurisdiction of Bagaha Police Station, the Sub-Inspector of that police station (PW 15) also reached the hospital on getting information and took over the investigation at about 6.10 p.m. from PW 14.
3. On these facts, the four appellants before us were charge-sheeted. The trial court disbelieved the prosecution case against the accused and acquitted them. Against the said acquittal, the State preferred an appeal and the High Court allowed the appeal and convicted Shambhoo and Munib, i.e. appellants in Appeal No. 133 of 1979 for the offence under Section 302 read with Section 34 IPC, and sentenced them to imprisonment for life. The High Court also convicted Sarabjit and Paltan (appellants in Appeal No. 150 of 1979) for the offence under Section 304 Part II read with Section 34 IPC and sentenced them to undergo rigorous imprisonment for seven years each. The High Court further convicted Sarabjit for offence under Section 326 IPC and sentenced him to undergo rigorous imprisonment for five years. His sentence was directed to run concurrently. It is aggrieved by this order of conviction passed by the High Court that he four accused have preferred these two appeals. It appears that during the pendency of these appeals the appellant Munib in Appeal No. 133 of 1979 and the appellant Sarabjit in Appeal No. 150 of 1979 died. The present appeals are pursued by the surviving appellants in each case.
4. At the instance of both the parties, we went through the entire evidence on record and the judgments of both the trial court as well as the High Court. We find that the trial court had given cogent reasons to acquit the accused, and the High Court has interfered with the said order without substantial reasons. The High Court has also failed to deal effectively with the grounds which impelled the trial court to disbelieve the prosecution evidence against the accused.
5. The substance of the prosecution case is that he deceased Rajendra died as a result of the assault in question at about 3 p.m. on the very day of the incident. However, on the basis of the medial evidence, the defence has succeeded in establishing that he had died soon after he left his house at 8 a.m. Dr. Shambhoo Sharan (PW 13) who performed the post-mortem examination of the dead body, has stated both in his report as well as in his deposition, that there was 8 ounces of undigested food in the stomach of the deceased. If as alleged by the prosecution the death had occurred at 3 p.m., no such undigested food would have been found in the stomach at that hour when the food was taken by the deceased before 8 a.m. If this is so, then the whole case of the prosecution must crumble for, this will establish beyond doubt that Rajendra had died very soon after 8 a.m. and none of the so called eye-witnesses had seen the assault on Rajendra.
6. The said fact will also demolish the entire version of the three dying declarations made by the deceased to various prosecution witnesses at three different places. The non-explanation by the prosecution of the undigested food therefore casts serious adverse reflections on the entire investigation in the present case. Unfortunately, the High Court has failed to deal with this very important aspect of the evidence on record which has been highlighted by the trial court. It also strengthens the defence version that the accused have been involved in the present case by the obliging witnesses and unfair investigation.
7. The trial court in addition, has relied on other circumstances to negative the prosecution case. It has pointed out material contradictions in the prosecution evidence which falsifies the prosecution version even otherwise.
8. In the first instance, it is pointed out that there is no evidence on record that the villagers had at that time started harvesting and the deceased's land was harvested on that day either wholly or partly. If that is so, then the entire version of the prosecution that the deceased accompanied by his son, the informant, had gone for harvesting to his field is gravely in doubt. This will also throw doubt on the prosecution story that the informant had accompanied the deceased to the field as alleged and that the deceased had engaged about 7 to 8 labourers for harvesting, on that day. In fact, Mukti Missir (PW 12) the other son of the deceased and the brother of the informant has admitted in his deposition that he did not know till the day he was examined in the court, about the number of the labourers who were engaged or their names except that of one Jwahir Chamar. Nor could the informant himself give the names of the labourers except that of the said Jwahir.
9. Secondly, it is pointed out by the trial court that Jwahir Chamar (PW 7) could also give the names only of two of the labourers and females but not of others.
10. Thirdly, the Investigating Officer also did not testify to the fact that the deceased's field was harvested on the day of the occurrence.
11. Fourthly, the version of the prosecution that the deceased had made dying declarations at three places, namely, in the field, at his house and at Parsauni and named the accused although nobody asked him about it sounds strange enough.
12. Fifthly, the testimony of the informant himself is far from being above suspicion in as much as although it is his case that he had seen the actual assault and at that time there were other witnesses present to witness it, it has come out in his evidence that he did not know from where the other witnesses had come, and that he had no talk with them fate the incident. The trial court has successfully shown that the evidence of the other prosecution witnesses - the so called eye-witnesses, namely, PWs 3, 4, 9, 11 and 12 was inconsistent and thoroughly unsatisfactory and they could not have seen the incident. The trial court has given convincing reasons to show that their testimony was false. The trial court has further emphasised the fact that actually there was a dispute between the deceased and one Harbans Missir, as a result of which Harbans Missir had filed a criminal case against the informant and his brother. There was also a criminal case filed against them by their uncle Pardyuman. It was admitted by constable (PW 16) that because of the dispute between the deceased and the said Harbans Missir two constables were deputed to the village for maintaining peace. The Assistant Sub-Inspector (PW 5) has also admitted that because of the dispute between the deceased and Pardyuman, a constable was deputed to maintain peace 20 days prior to the present occurrence. This shows that the deceased had many enemies at the time of the incident.
13. Lastly, the trial court has pointed out that all the prosecution witnesses were interested in the deceased. PWs 1 and 12 were sons of the deceased while PWs 3, 4 and 11 belonged to the party of the prosecution till the deceased were taken to Bettiah hospital. Prosecution witnesses 3 and 4 were arraigned in a proceeding under Section 17 of the Criminal Procedure Code along with the other members of the prosecution party.
14. The High Court did not deal with any of these circumstances pointed out by the trial court and has given no reasons to negative them or to show as to how they were either improper, unjustified or unreasonable.
15. We are, therefore, of the view that the High Court has interfered with the order of acquittal passed by the trial court not only for no substantial reasons but also by ignoring material infirmities in the prosecution case. Hence, we allow the appeals and set aside the order of the High Court convicting and sentencing the accused in both the appeals.
Appeals allowed.


Narendra Singh & Anr v State Of M.P.
Supreme Court of India

12 April 2004
Appeal (crl.) 298 of 1997
The Judgment was delivered by : S. B. Sinha, J.
1.  The Appellant No. 1 herein by reason of the impugned judgment reversing a judgment of acquittal passed by learned Sessions Judge, Dhar on 6.1.1984 was found guilty of commission of an offence under Section 302 of the Indian Penal Code for having committed murder of Bimlabai by throttling on 6.5.1983 at about 5.30 p.m. at Dhanmandi, Dhar at house No. 16, Dhanmandi, Dhar as also under Section 201 of Indian Penal Code for causing disappearance of evidence by setting her on fire after causing her death; whereas the appellant No. 2 was found guilty of commission of an offence under Section 201 of the Indian Penal Code.
2.  The relationship between the appellants herein are son and mother. Along with them, the husband of appellant No. 2 Hari Singh and their daughter Kusum were chargesheeted for commission of murder of the aforementioned Bimlabai. The deceased Bimlabai was married to the appellant No. 1 herein on or about 21.4.1982 in relation whereto the betrothal ceremony was held in December, 1980. The appellant No. 1 after the said betrothal ceremony was appointed as a bus conductor by the Madhya Pradesh State Road Transport Corporation. About 4 and = months thereafter, he was suspended questioning which he filed a civil suit.
3.  At the relevant time, the family members of the appellants were living as tenants in a portion in the upper storey of the house of Bansidhar, P.W.1. Daulatram, another tenant, used to reside in the front portion in the first storey in the same house. One Moi Babu was a tenant on the front portion in the ground floor whereas Omprakash Shukla was tenant in the rear portion thereof.
4.  Allegedly a demand was made by the accused persons for a wrist watch and a chain of gold at the time of marriage to which Ramsingh, PW5 (brother of the deceased) expressed his inability. Sometimes later, the said demand was reiterated. The appellant No. 1 was eventually dismissed from services whereafter financial assistance was allegedly given to him by Ram Singh. The marriage of younger brother of Ramsingh, Rajendra was settled in December, 1982. His Tika ceremony was to take place on 24.4.1983 at Indore. Ramsingh came to the house of the accused persons to invite them and take Bimla with him to his house. For the purpose of fighting out a suit as regard the termination of his service, Narendra allegedly asked for a sum of Rs. 2000/- from Ramsingh wherefor he expressed his inability saying as his brother is going to be married after one month he was not in a position to spare the amount. Allegedly, thereupon Narendrasingh and Harisingh threatened stating "You will have to give us an amount of Rs. 2000/- otherwise we will not send Bimla to attend the marriage ceremony of her brother Raju at Indore."
5.  The incident in question took place on 6.5.1983. It is alleged that on 6.5.1983 at about 5 p.m. Asha, PW7 (daughter of Daulatram) saw signs of fire coming out from the house occupied by the accused persons. PW2 Ramkunwar Bai also noticed the fire. They gave a call to the appellants but none replied. PW-10 Kusha Bhau and others also went to the house to extinguish fire. Thereafter the fire brigade as also the police reached at the place of occurrence. The dead body of Bimlabai was found lying in the kitchen of the house in burnt condition. A jerry can, its cover and a match box were also found near the dead body in the kitchen. The autopsy on the dead body of Bimlabai was conducted at about 8.15 p.m. on 7.5.1983.
6.  Ram Singh, the informant came to learn about the said incident on the next day. In relation to the said incident a First Information Report was lodged by Ram Singh PW-5 at 6.30 p.m. on 7.5.1983 in the Police Station Dhar. The appellants herein with Harisingh and Kusum were chargesheeted under Sections 302 and 201 read with Section 34 of the Indian Penal Code. The case thereafter was committed to the Court of Sessions. Before the learned Sessions Judge, 17 witnesses were examined on behalf of the prosecution; whereas 6 persons were examined as court witnesses. A plea of alibi was put forth by the appellants herein in the trial stating that the appellant No. 1 was attending a marriage ceremony in the house of Illias Khan, CW-3. The appellant No. 2 also raised a plea of alibi.
7.  PW-1 Banshidhar is the owner of the house. PW-2 Ramkunwar Bai is an adjacent neighbour of the appellants. PW-3 Harak Chand Mittal is an advocate, who lives at some distance from the house of accused persons, had informed the police about fire on phone. PW-4 Om Prakash is also a neighbour. He was a witness to the inquest report, site plan and seizure memo. PW-5 Ramsingh is the first informant. PW-6 and CW-1 are the doctors who conducted the post mortem examination over the dead body of Bimlabai. PW-7 Asha, PW-10 Kusha Bhau, PW-13 Yashoda Bai, PW-14 Gulab Singh are the other witnesses. PW-12 Bhagwanti Bai is the sister of the deceased. The court witnesses were not examined by the prosecution and all of them for some reason or the other were examined as court witnesses. CW2 to CW6 sought to prove the plea of alibi of the appellants.
8.  The Learned Sessions Judge disbelieved the prosecution case and recorded a judgment of acquittal inter alia on the ground that as admittedly the door of the kitchen had to be broken open; and as the death of Bimlabai presumably took place in between 4.15 p.m. and 5.30 p.m., it was impossible for the assassin to jump from the window in the lane. Furthermore, as no person has seen the assassin, possibly it was a case of suicide. Assuming that it was a case of murder, the learned Sessions Judge wondered, keeping in view the place of occurrence vis--vis the points of possible entries thereto, as to how the assassin of Bimla made his exodus from that room.
9.  The learned Sessions Judge did not fully rely upon the post mortem report having regard to certain cuttings and over-writings therein. The learned Sessions Judge opined that although no mala fide intention could be attributed to the doctors, there existed a possibility that they committed some mistakes in recording their opinion as regard the cause of death. It was further held that the plea of alibi of the accused persons could neither be ignored nor said to be unreliable.
10.  The learned Sessions Judge also disbelieved the evidence of PW-1 Bansidhar holding that from his evidence the presence of the appellants at the place of occurrence at the relevant time had not been proved.
11.  The State preferred an appeal thereagainst. The said appeal was heard by a Division Bench of the High Court comprising Justice A.B. Qureshi and Justice V.D. Gyani. Whereas Qureshi, J. despite holding that the death was homicidal in nature, was of the opinion that the guilt of the accused persons was not brought home; whereas Gyani, J. allowed the State appeal holding the appellants guilty under Sections 302/34 and Section 201 of the Indian Penal Code and sentenced them to undergo life imprisonment. In view of the difference of opinion the matter was assigned to Chitre, J. by the Chief Justice of the High Court. By reason of the impugned judgment dated 20th September, 1996 aggreeing with the judgment of Gyani, J. the learned Judge held the appellant No. 1 to be guilty for commission of an offence under Section 302 read with 201 of the Indian Penal Code and the appellant No. 2 to be guilty for commission of an offence under Section 201 of the Indian Penal Code and sentenced her to undergo three years of rigorous imprisonment. A judgment of acquittal was recorded in favour of Harisingh whereas Kusum was although convicted for commission of an offence under Section 201 of the Indian Penal Code but was sentenced to the period already undergone.
It was held:
"72. Now, therefore, what comes out in the case is that:
(i) there was a demand of dowry which was not fulfilled. Narendrasingh was annoyed. Thus, there was motive for murder.
(ii) Vimlabai met homicidal death by throttling and thereafter was set to fire. The setting of fire must have been with intent to cause disappearance of evidence for screening the offender;
(iii) At least three persons, i.e., Narendrasingh, Gulbadanbai and Kusum were present in the house in the after noon and till the body was found inside the kitchen room. Had the murderer been anybody else Vimlabai must have raised alarm. Persons in the family including these accused persons could have also raised alarm and caused resistance to such murder;
(iv) As no alarm was raised by Vimlabai, this goes to show that the person (murderer) must have been close relation of her and in all probability the husband. A Hindu wife while assaulted by her husband would not cause resistance. Sometimes even alarms are not raised unless the injuries caused are very painful and serious."
12.  Mr. Sushil Kumar Jain, learned counsel appearing on behalf of the appellants inter alia would submit that the preponderance of evidence not only show that the post mortem report should not have been relied upon by the High Court having regard to the fact that the burns have been held to be ante mortem in nature although the cause of death was said to be asphyxia. It was pointed out that the findings of the High Court to the effect that the death was a homicidal one by asphyxia was based on two factors:
(i) no carbon particles were found in the respiratory tract or the trachea, and
(ii) 200 CC blood was found in front of pharynx and in the part of tracheal and sub-surrounding subcutaneous tissues.
13.  The learned counsel would urge that the carbon particles cannot be seen with open eyes particularly when there was blood and as such it was necessary to remove the blood by opening the skull or through legs.
14.  The learned counsel would further submit that presence of accused at the time of death cannot be said to have been proved by the prosecution as the court witnesses categorically stated about their presence at the relevant time at the house of Illias Khan. It was urged that the evidences of PW-1 Banshidhar, PW-2 Ramkunwar Bai and PW-7 Asha should not have been relied upon by the High Court as regard presence of the appellant No. 1 having regard to the improvement/omission/contradiction contained in their statements. The learned counsel would submit that PW-1 has been contradicted in material particulars by Inder Dhobi CW- 5 whose presence had not been disputed by the prosecution witness. It was pointed out that the statements of the witnesses examined on behalf of the prosecution were recorded on the 2nd or 3rd day of the occurrence and thus the same could not have been relied upon. Our attention had also been drawn to the fact that according to PW-1 himself he had reached his house about 5.15 p.m. whereafter he went to latrine and only after his coming out therefrom, he noticed the fire, washed his hands, climbed on the top of shed when Nadkar and Inder Dhobi were also present; and in that view of the matter he cannot be a witness as regard the first part of the incident as by that time, even the doors of the kitchen had also been broken open and people had already arrived in large number. It was further contended that it was admitted by PW-1 that he came to know about the death of Bimlabai from Shri Mittal, which fact also makes his statement doubtful.
15.  As regard the finding of the High Court that Bimlabai died in between 3.00 p.m. to 5.30 p.m., Mr. Jain would point out that the evidence of PW-1 Banshidhar, PW-2 Ramkunwar Bai and PW-7 Asha would categorically show that the incident must have taken place after 5.00 p.m. The learned counsel laid emphasis on the fact that admittedly water in the tap comes at 5.00 p.m. whereafter only the fire was noticed by the witnesses examined by the prosecution.
16.  The finding of the High Court to the effect that the appellant No. 1 after commission of the offence locked the room inside and slipped out of the window, Mr. Jain would urge, is untenable keeping in view the height of the window, the size of the room being 5'x 6' as also the fact that some people had already gathered near the water tap and, thus, it would be impossible for anyone to jump from the open space without being noticed and that too remaining unhurt.
17.  A judgment of acquittal without any cogent and sufficient reasons should not be reversed, Mr. Jain would argue.
18.  The learned counsel would further submit that the prosecution has not been able to prove any motive for commission of the offence as the prosecution witnesses accepted that the relationship between the husband and wife was cordial and only because a sum of Rs. 2000/- was asked for the same by itself could not be the motive on the part of the accused persons, for commission of the offence.
19.  Ms. Vibha Datta Makhija, learned counsel appearing on behalf of the State, on the other hand, would support the judgment of the High Court inter alia contending that; whereas the judgment of the learned Sessions Judge was based on surmises and conjectures, the High Court assigned sufficient and cogent reasons for arriving at its findings. It was pointed out that in a case like the present one, the Court should consider the matter having regard to three scenarios in mind, viz.:
(i) Suicide committed by Bimlabai;
(ii) Murder by intruder; and
(iii) Murder by the accused; and arriving at a finding upon excluding the one or the other possibility.
20.  The learned counsel would contend that the deceased was a young girl and in view of the fact that she must have been having the same state of mind for more than a year and, thus, she was unlikely to commit suicide only because she was not sent by her in-laws to attend the marriage of her brother. In any event, having regard to the presence of ligature mark on her neck, commission of suicide by self strangulation and thereafter setting herself on fire must be ruled out.
21.  The learned counsel would contend that commission of murder of Bimlabai by an intruder is wholly improbable. It was pointed out that PW-2, PW-7, CW-2 and CW-6 categorically stated that the appellant No. 1 was at home at about 3.00-3.30 p.m. The learned counsel would contend that if the appellants and Kusum were present in the house and if the story that immediately prior to the occurrence the family was visited by PW-13, it is impossible for an intruder to come and commit the offence without being noticed. The learned counsel would aruge that such an offence is not possible to be committed without drawing the attention of others, without any noise and without any shriek by the victim which are clear pointers to the fact that throttling of the deceased must have been committed by somebody who was known to her and had access, and, in that view of the matter the offender cannot be any other person but the appellant No. 1.
22.  Ms. Makhija would contend that demand of dowry, an unhappy marriage, the threat by the appellant No. 1 and his father and PW'5's refusal to give to the accused person the sum of Rs. 2000/- on demanded by them, establish sufficient motive for the accused persons to commit the murder of Bimlabai and then to make the same look like a case of suicide. The burn injuries suffered by the appellant No. 2 in hand is also a pointer to the fact, Ms. Makhija would contend, that she had also taken part in setting fire on the deceased.
23.  It was urged that as the plea of alibi of the appellants have not been proved and keeping in view the proximity of time and the place of occurrence and time of murder, it can safely be presumed that the entire occurrence took place within 10-15 minutes and it was possible for the appellant No. 1 to come back from the House of Illias Khan and upon commission of the crime go back to his house to show his absence. Furthermore, the burden of proof when a plea of alibi has been found to be false lies upon the accused persons, Ms. Makhija would argue.
24.  It is a case which, in our considered opinion, requires a broad based consideration.
25.  We will proceed on the basis that the death of Bimlabai was a homicidal one. We will also assume that the contents of the post mortem report is correct and, thus, the death of Bimlabai was caused due to asphyxia. We may further assume that the appellants herein have failed to prove their plea of alibi. What, however, is baffling to us on the manner in which the offence is alleged to have been committed. The High Court arrived at its findings relying upon the spot map prepared by learned trial Judge which indicates that there existed a window in the kitchen without any grill; the height whereof from the road is said to be 11 ft. holding :
"71. From the map proved by the prosecution, the site map and the note prepared on the direction of the Judge go to show that there were two places wherefrom a person in the kitchen and the side room of kitchen could slip away; (i) by window which is nearly 10 to 11 feet in height from the ground. (It is note worthy that it is not a construction with plain wall upto 11 feet but with residential quarters in the ground floor and therefore, it was not impossible to slip away from that window after commission of murder), and (ii) the other possibility that the person who committed murder came out from the gap between the wall containing door No. 10 and 12 and the roof which was probably closed subsequently and, therefore, marks of new constructions of the wall above the door upto roof."
26.  The High Court, therefore, considered the escape of the assassin of Bimlabai through one of the two gaps as possible but did not assign any reason as to how the same can be said to have been established. Furthermore, it does not appear that such a case was made out by the prosecution. Investigation in this behalf does not appear to have been carried out to show as to whether it was possible for a person to climb the wall before slipping out of one of the two places mentioned by the High Court nor any material in support thereof was brought on record. The witnesses did not say that they had seen any foot mark of any person on the wall nor any other evidence suggests that one of the two open places would otherwise be used by the offender as possible escape routes. If the time of incident is taken to be nearer 5 p.m. than 3.30 p.m., it would be well nigh possible for the appellant No. 1 to climb the wall, sneak through the open places and jump from the window to the lane without being noticed. It also does not appear that the attention of the appellants had been drawn by the Sessions Judge to any piece of evidence seeking their explanation thereabout in their examination under Section 313 of the Code of Criminal Procedure. Had it been the prosecution case that the appellant No. 1 after throttling the deceased and setting her on fire escaped through one of the two open places mentioned by the High Court, it was obligatory on the part of the Court to give an opportunity to the appellants to explain thereabout. Such a circumstance, had it been put to the appellant no.1, could have been explained away by him. The appellants were, therefore, prejudiced by not being given a chance to explain the said purported material against him. It is not a case where no prejudice can be said to have been caused to the appellants.
27.  The findings of the learned Sessions Judge to the effect that had any person slipped or gone away from that window, pedestrians through the lanes must have seen such person cannot, in our opinion, be said to be irrational warranting interference by the High Court. If the observations of the High Court to the effect that persons going through the road do not keep a vigil on such movements, is correct, the same by would itself give rise to some surmises keeping in view the fact that there existed a greater possibility of the appellant no.1 being seen as his jumping from the window would have been abnormal which would attract the attention of the persons who had assembled to take water from the tap. We also fail to see any force in the finding of the High Court to the effect that only because the appellant no.1 was the husband of the deceased he had a chance to throttle her all of a sudden without any resistance. The finding of the High Court to the effect that Gulbadanbai having sustained burn injuries in her hand, the probability of her presence at this time of setting of fire cannot be ruled out is contradictory to its ultimate finding that she was guilty of offence only under Section 201 of the Indian Penal Code and not under Section 302/34 thereof.
28.  It is now well-settled that benefit of doubt belonged to the accused. It is further trite that suspicion, however, grave may be cannot take place of a proof. It is equally well-settled that there is a long distance between 'may be' and 'must be'.
29.  It is also well-known that even in a case where a plea of alibi is raised, the burden of proof remains on prosecution. Presumption of innocence is a human right. Such presumption gets stronger when a judgment of acquittal is passed. This Court in a number of decisions has set out the legal principle for reversing the judgment of acquittal by a higher Court. (See Dhanna Vs. State of M.P. (1996) 10 SCC 79 1996 Indlaw SC 2240, Mahabir Singh Vs. State of Haryana, (2001) 7 SCC 148 2001 Indlaw SC 20747 and Shailendra Pratap & Anr. Vs. State of U.P. (2003) 1 SCC 761 2003 Indlaw SC 8), which had not been adhered to by the High Court.
30.  The entire case is based on circumstantial evidence. Pieces of circumstances, however, strong may be, it is well- known that all links in the chain must be proved. In this case a vital link in the chain, viz., possibility of the appellant No. 1 committing the offence, closing the door and then sneaking out of the room from one of the two places had not been proved by the prosecution.
31.  We, thus, having regard to the post mortem report, are of the opinion that the cause of death of Bimlabai although is shrouded in mystery but benefit thereof must go to the appellants as in the event of there being two possible views, the one supporting the accused should be upheld.
32.  For the reasons aforementioned, we are of the opinion that the impugned judgment cannot be sustained which is set aside. Accordingly, the appeal is allowed. The appellants are on bail. They are discharged from the bail bonds.
Appeal allowed.


Sambasivan & Ors. v State Of Kerala
Supreme Court of India

8  May  1998
Criminal Appeal No. 180 of 1990
The Judgment was delivered by : Syed Shah Mohammed Quadri, J.
1.  In this statutory appeal under Section 379 Cr. P.C. accused 1 to 3 in Sessions Case No. 154 of 1984 on the file of the 1st Additional Sessions Judge, Trivandrum, are the appellants. They assail the validity of the judgment of June 8, 1989 passed by a Division Bench of Kerala High Court in Criminal Appeal No. 87 of 1986 setting aside their acquittal by the trial court and convicting and sentencing them as follows: under Section 302 read with Section 34, I.P.C. imprisonment for life; under Section 307 read with Section 34, I.P.C. - rigorous imprisonment for seven years and Section 3 of the Explosive Substances Act, 1908 - imprisonment for five years. All the sentences were directed to run concurrently.
2.  In this case Trade Union rivalry between INTUC and CITU on the one hand and BMS on the other culminated into the atrocious incident of April 21, 1983 in which one Thanukuttan @ Nanukuttan died and three persons PW-1, PW-2, and PW-4, suffered injuries. In respect of this incident the police filed charge-sheet against the appellants and twenty other persons of whom A-13 dies and the remaining were tried on the following facts for offences under Sections 120B, 143, 147, 148, 149, 324, 307, 302 and 109 of the I.P.C. and Section 3 of the Explosive Substances Act, 1908. The headload-workers employed in the industrial Estate of Pappanamcode are members of either INTUC or CITU (hereinafter referred to as 'the complainant group') whereas 'the accused group' belongs to BMS union. The members of 'the complainant group' were preventing the members of 'the accused group' from working in the Industrial Estate.
3.  For this reason accused 1 to 20 of the accused group hatched a conspiracy to murder the headload-workers of the complaint group pursuant to which A-23 had agreed to supply the country made bombs on April 20,1983. On the morning of April 21, 1983, accused A-21 and A-22 took the bombs to a by lane at Vettukuzhi near the Pappanamcode Industrial Estate and gave them to A-1 at 10.15 a.m. Thereafter with the common object of causing voluntary hurt and causing death of the members of the complainant group, A-1 to A-20 formed themselves into an unlawful assembly at 10.45 a.m. ; among them A-1 to A-3 were carrying bombs, A-4, A-5, A-10 to A-15 were carrying bricks and A-6 to A-9 and A-16 to A-20 were holding sticks. They proceeded to the said Industrial Estate where PWs 1 to 5 and 7 among others were relaxing on the platform in from of General Metals as there was no work on that date.
4. While one of them was reading magazine "Kumari" weekly, the others were hearing ad Nanukuttan was sleeping. After reaching there A-1 threw bomb at PW-1 who suffered injuries on hands and thighs; A-2 threw bomb at nanukuttan who was severely injured and A-3 also threw bomb which fell in front of PW-2. A-4 and A-5 threw a brick at PW-2. A-6 to A-9, A-19 and A-20 attempted to beat PWs 3,4 and 5. A-6 and A-19 beat PW-3 with sticks A-10 to A-15 threw bricks at PW 1 and others whereas A-16 to A-18 attempted to beat PW-1 and others. Nanukuttan and P.W. 1 were taken to the Medical College Hospital, Trivandrum where nanukuttan was declared dead at about 11.15 a.m. In the Medical College Hospital PW- 1, PWs 2 and 4 were given treatment. PW-14, the doctor, examined PWs 1,2 and 4 and issued wound certificates Ext. P- 3, P-4 and P-5 respectively. PW-19 , another doctor, conducted the post mortem examination of Nanukuttan, the deceased, the issued post-mortem certificate Ext. P-9. To prove its case the prosecution examined PWs-1 to 22, marked Exts. p-1 to P-17 and got M.O.S. 1 to 7 identified. The accused marked Exts. D-1 to D-11 and XI. The accused denied the charges and claimed to be tried.
5.  On considering the evidence on record, the trial court acquitted all the twenty two accused by its judgment dated February 22, 1985. The State appealed against that judgement and confined its submissions to accused A-1 to A-3. The High Court having considered the evidence on record found A-1 to A-3 guilty of various offences, convicted and sentences them as mentioned above.
6.  Mr. U.R. Lalit, the learned senior counsel, appearing for the appellants, contended that the eye witnesses PWs 1 to 5 and PW-7 were interested witnesses being the members of the rival union, therefore, their evidence was rightly rejected by the trial court but the High Court did not take into account union rivalry between the two groups and the possibility of the complainant group falsely implicating the accused who belonged to the rival group and thus erred in relying upon their testimony. He argued that throwing of bombs in its very nature is so sudden that it was not possible that the witnesses could have actually seen the same; PWs 8 and 9 who are independent witnesses and came to the scene of occurrence did not say that they had seen any of the accused. persons there.
7. In any event, submits the learned counsel, where two views are possible, as in this case, the High Court, in the appeal against acquittal, ought not to have upset the acquittal of the appellants by the trial court. Shri G. Prakash, the learned counsel appearing for the State, invited our attention to the evidence of eye witnesses, P.Ws. 1 to 5 and 7, and submitted that the trial court had arrived at erroneous conclusions from the evidence and that the approach of the trial court was patently untenable and that no reasonable person could have taken such a view, as such the High Court had rightly interfered with in the appeal against acquittal.
8.  On the submissions of the learned counsel, the short point that arises for consideration is whether the judgment of the High Court under appeal warrants interference.The principles with regard to the scope of the powers of the Appellate Court in an appeal against acquittal, are well-settled. The powers of the Appellate Court in an appeal against acquittal are no less than in an appeal against conviction. but where on the basis of evidence on record two views are reasonably possible the Appellate Court cannot substitute its view in the place of that of the trial court. It is only when the approach of the trial court in acquitting accused is found to be clearly erroneous in its consideration of evidence on record and in deducing conclusions there from that the Appellate Court can interfere with the order of acquittal. There is plethora of case law on the subject but we consider it unnecessary to quote any decisions here; suffice it to refer to a recent judgment of this Court in Ramesh Babulal Doshi vs. State of Gujarat (1996) 9 SCC 225 1996 Indlaw SC 2602, on which reliance is placed by MR. Lalit. In that case one of us (Justice Mukherjee) speaking for the Court restated the principles as follows:
"This Court has repeatedly laid down that the more fact that the trial court can be legitimately arrived at by the appellate court on reappraisal of the evidence cannot constitute a valid and sufficient ground to interfere with an order of acquittal unless it comes to the conclusion that the entire approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. 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 then - and then only - reappraise the evidence to arrive at its own conclusions. In keepings with the above principles we have therefore to first ascertain whether the findings of the trial court are sustainable or not".
9.  We have perused the judgment under appeal to ascertain whether the High court has conformed to the aforementioned principles. We find that the High court has not strictly proceeded in the manner laid down by this court in Doshi's case 1996 Indlaw SC 2602 (supra), viz; first recording its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable, which alone will justify interference in an order of acquittal though the High court has rendered a well considered judgment duly meeting all the contentions raised before it. But then will this non-compliance per se justify setting aside the judgment under appeal? We think, not.
10. In our view, in such a case, the approach of the Court which is considering the validity of the judgment of an Appellate Court which has reversed the order of acquittal passed by the trial court, should be to satisfy itself if the approach of the trial court in dealing with the evidence was patently illegal or conclusions arrived at by it are demonstrably unsustainable and whether the judgment of the Appellate court is free from those infirmities ; if so to hold that the trial court judgment warranted interference.
11. In such a case, there is obviously no reason why the Appellate Court's judgment should be disturbed. But if on the other hand the court comes to the conclusion that the judgment of trial court does not suffer from any infirmity, it cannot but be held that the interference by the Appellate Court in the order of acquittal was not justified; then in such a case the judgment of the Appellate Court has to be set aside as of the two reasonable views, the one in support of the acquittal alone has to stand. Having regard to the above discussion, we shall proceed to examine the judgment of the trial court in this case.
12. In this case, the trial court framed as many as eight points for determination which are as follows:
(1) Whether Thanukuttan alias Nanukuttan died of injuries sustained at 10.45 a.m. of 21.4.1983?
(2) Whether PW1 sustained injuries at 10.45 a.m. of 21.4.1983?
(3) Whether PWs 2 and 4 sustained injuries soon after the occurrence at 10.45 a.m. of 21.4.1983?
(4) Whether the prosecution has succeeded in proving a conspiracy punishable under Section 120B of the I.P.C.?
(5) Whether the prosecution succeeded in proving the charge against A21 to A23?
(6) Whether the prosecution evidence has proved beyond reasonable doubt that offences under sections 143,147,148 and 149 of the I.P.C. have been committed by A1 to A20?
(7) Whether the prosecution evidence has proved beyond reasonable doubt that Nanukuttan had a homicidal death?
(8) Whether the prosecution evidence has proved beyond reasonable doubt the commission of the offences punishable under sections 302, 307 and 324 of the I.P.C. and the offence under Section 3 of the Explosive Substances Act, 1908?"
13.  On point Nos. 1 to 3, the trial court recorded findings in the affirmative, that is, in favour of the prosecution and against the accused; on point Nos. 4,5, 6,7 and 8 it recorded the finding in the negative, that is, in favour of the accused and against the prosecution. In view of the limited submissions made by the prosecution before the High Court we are not concerned with point Nos. 4,5 and 6; the points which are material for our discussion are point Nos.1 to 3 and 7 and 8. In answering the points noted above, the trial court considered each point in isolation and thus arrived at conclusions which are inconsistent and erroneous. having recorded the finding on point No.1 in the affirmative it held that Nanukuttan had not died a homicidal death at the place alleged by the prosecution. In drawing the above inference the trial court relied upon certain statements made by some of the eye-witnesses. The portions in the case diary statements marked as Exts. D-1 and D-1(a) on which the trial court placed reliance are to the effect that the deceased was sitting at the time of the incident whereas in the evidence given in Court it was stated that he was sleeping.
14. The aforesaid contradictions are hardly material to decide whether he died of a homicidal death at the place of the incident. While considering point No.1, the trial court accepted the testimony of PWs-1 to 5 and 7 on the ground that the same was corroborated from the evidence of PWs 8 and 9. It also relied on the evidence of PWs 8 and 9 in coming to the conclusion that the deceased sustained fatal injuries at the slanting platform in front of the General Metals in the Industrial Estate at Pappanamcode. From that evidence, the conclusion that A-2 threw bomb at the deceased who was seriously injured and died of a homicidal death, was irresistible but the trial court held otherwise which is patently untenable. We have gone through the evidence of eye witnesses, PWs 1 to 5 and 7; their presence on the scene of occurrence cannot be doubted because PWs-1, 2 and 4 are injured witnesses and their names are also found in the FIR (Exh. P-1). Further, PWs. 8 and 9 are independent witnesses; though they do not speak of the presence of the accused on the scene of occurrence that is for the reason that they came after the accused and some of the injured persons had fled from the scene of occurrence, they, however, spoke that they had seen PWs.3 and 4 on the scene of occurrence. From their testimony, it becomes evident that the deceased and some others were taking rest on the concrete platform in front of General Metals. While one of them was reading magazine 'Kumari' and others were hearing, they noticed magazine 'Kumari' and others were hearing, they noticed that A-1 was having something in the shape of the tennis ball which was wrapped in a paper and which was thrown by him at PW-1; this was followed by throwing of similar object by A-2 on the deceased, which hit him on his stomach and his intestine came out. Immediately thereafter, the third bomb was thrown by A-3 which fell amidst them. Mr. Lalit, however, contended that the said witnesses were interested witnesses being members of the rival union and, therefore, it would not be safe to rely on their evidence.
15. We find no substance in this argument because on examination of their testimony, we do not find that any of them were shaken in the cross-examination on any material particulars. Merely because they belong to the complainant group, it cannot be said that their testimony cannot be given due weight. It is nobody's case that at the time of occurrence, persons other than the members of the rival unions were present there. After hearing the sound of explosion, some persons no doubt came to the scene of occurrence, of whom PWs 8 and 9 have been examined and obviously they have spoken to the facts which they noticed only after the explosion of the bombs. The other witnesses, if any, would have been of no avail to the defense nor were they necessary for purposes of establishing the quilt of the accused. Therefore, union rivalry would not be a ground to brush aside their evidence after having found that the same is consistent and truthful. It is no doubt true that throwing of bomb is a sudden act but the witnesses have clearly stated from which direction the accused came and who among them threw the country-made bombs and who hit with bricks and sticks. It is not a case where the incident took place in wee hour of the night when everybody was sleeping and then they got up after the explosion and would not have been in a position to see the actual throwing of bombs. They were all sitting on the platform and were obviously conscious of what was happening in the surrounding as is evident from their statements. We also find no substance in the issue as to whether the deceased was sitting or lying a fact which weighed with the trial court to disbelieve the prosecution story. It is quite possible that the witnesses who stated that Nanukuttan was sitting must have seen him before he lied down on the platform and the witnesses who stated that he was sleeping must have seen him lying and stated that he was sleeping.
16. This contradiction, in our view, does not affect the prosecution case. We also find that the case of the prosecution is corroborated by medical evidence of PWs-14 and 19. PW-14 is the doctor who examined PWs. 1,2 and 4 and issued Exh. P-3, P-4 and P-5 respectively. PW-19 is the doctor who conducted autopsy on the dead body of the deceased and issued post-mortem certificate, Exh. P-9. PW-19 sent the pieces of body of the deceased to Forensic laboratory for report. Exhs. P-10 and P-11 are the reports which show the presence of explosive substance in the body of the deceased The blood clotted newspaper pieces and twine etc. collected from the scene of occurrence, MOS 5 and 6 , were also found to contain explosive substance which also corroborates the prosecution story of throwing of bomb by the accused persons. There cannot be any possibility of falsely implicating the accused because soon after the occurrence, Exh. p-1 was lodged wherein the overt acts attributed to the appellants were noted. For these rightly found the appellant guilty of offences mentioned in the judgment under appeal. From the above discussion, it follows that the approach of the trial court was patently erroneous and the conclusions arrived at by it were wholly untenable.
17. It is thus mot the case where two reasonable views on examination of the evidence on record are possible and so the one which supports the accused, should be adopted. The view taken by the trial court can hardly be said to be a view on proper consideration of evidence much less a reasonable view. Therefore, interference by the High Court in the appeal against acquittal of the appellant and recording the finding of their conviction for offences under Sections 302,307 read with Section 34 IPC and Section 3 of the Explosive Substances Act, 1908, on consideration of the evidence, is justified. The judgment under appeal does not warrant any interference. We find no merit in this appeal; it is accordingly dismissed.
18.  Appellants 1 and 3, who are now on bail will surrender to their bonds to serve out their sentece confirmed by us.
Appeal dismissed