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Tuesday, February 25, 2014

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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