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Wednesday, November 30, 2016

where acquittal has been made, while entertaining an appeal over an order of acquittal if two views are possible on making proper appreciation of available evidence the view going in favour of accused have to given importance. It is well settled that in case where an order of acquittal has been made on improper and erroneous appreciation of evidence, it is always open to the court of appeal to make proper and reasonable appreciation evidence and differ from the order of acquittal and in such event, it shall never hesitate in reversing the same. Ultimately, the High Court concluded: “...From scanning of the entire prosecution evidence and having regard to submission of the respective parties, we are constrained to hold that the learned trial Court was totally wrong both in law and, in fact, in making its observation that the FIR was antedated and anti timed and a manipulated one. The trial Court also erred in law by discarding the FIR for delay in dispatching the same in the Court of the Magistrate.” 37. We are of the opinion that the findings and conclusion recorded by the High Court are based on the correct appreciation of evidence and do not suffer from any error.

                                                                  REPORTABLE
                           IN THE SUPREME COURT OF INDIA
                        CRIMIMINAL APPELLATE JURISDICTION
                         CRIMINAL APPEAL NO. 298 OF 2006

ANJAN DASGUPTA                         .......APPELLANT
                            VERSUS
THE STATE OF WEST BENGAL & ORS.   ......RESPONDENT


                            JUDGMENT
ASHOK BHUSHAN, J.

1.    This appeal has been filed against the judgment  dated  16.02.2006  of
Calcutta  High Court, by which judgment, the High Court reversed  the  order
of  acquittal  granted  by   Additional  Sessions  Judge.   The  High  Court
convicted  the appellants Anjan  Dasgupta  and  one   Biswanath  Paul  under
Section 302/34 of IPC by awarding life  sentence and a fine of Rs. 2000.00.

2.    The prosecution  case  in  brief  is that, at  4.50 PM of  16th  June,
2000 Debol Kumar Ghosh, the deceased was sitting inside the Party Office  of
    CPI(M) at R.B.C. Road, Naihati,  North  24-Paraganas  at  which  time  a
maruti gypsy car stopped, from which the appellants got down.  At  the  same
time, four persons on two bicycles came from  the  direction  of  the  Mitra
Bagan Road and  stopped   right  in  front  of  CPI(M)  Party   Office.  The
appellant by hand indicated Debol  Kumar  Ghosh  to  four  persons  who  had
arrived there on two bicycles, and one of them fired from pipe gun on  Debol
Kumar Ghosh. Leaving two cycles, all four persons got in  the  Maruti  Gypsi
which speed up towards Gauripur.  Sandip  Ghosh,  the  son  of  Debol  Kumar
Ghosh who was sitting inside his medicine shop, namely, “Ma Medical  Stores”
at R.B.C. Road, Naihati, North 24-Parganas situated at 5 cubits from  CPI(M)
Office saw the above incident and rushed to CPI(M) Party  Office  and  found
his father Debol Kumar Ghosh had sustained bullet injuries on his chest  and
was lying on the floor.  The elder brother of  Sandip  Ghosh,  upon  hearing
the sound, also came to the Party Office.  The  victim,  Debol  Kumar  Ghosh
was thereafter taken to Green View Nursing Home where he was  declared  dead
by the doctors at 5.00 PM.
3.    The information of murder of Debol Kumar Ghosh  was  received  by  the
Police Officials of the Naihati Police Station, who  immediately  rushed  to
the scene of occurrence. After receiving an R.T.  message  at  17.15  hours,
the Sub Inspector Tapan Kumar also arrived at the scene  at  17.40  hrs  and
remained at the scene till 21.05 hours.  Sandip Ghosh  went  to  the  police
station at about 7.30-8.00 PM alongwith one Arun Dey.  Arun  Dey  wrote  the
complaint  at  dictation  of  Sandip  Ghosh  and  a  written  complaint  was
submitted to the police station.  The FIR No.  99  of  2000  was  registered
under Section 302/34 of the IPC and Section 25/27 Arms Act,  naming  accused
Anjan Dasgupta, Biswanath Paul, Sintu alias Saroj Roy and Bhola Kundu.
4.    Tapan Kumar, Sub Inspector received the FIR while he was still at  the
scene of occurrence.  Sub Inspector  Manick  Chakraborty,  on  dictation  of
Tapan Kumar with a Constable prepared the inquest report of  the  dead  body
at Green View Nursing Home at 22.35 hours.  After  the  inquest  report  was
prepared late in the evening, the dead body was sent for  postmortem.  After
completion of the investigation, accused Anjan Dasgupta, Bhola Kundu,  Sintu
alias Saroj Roy and Biswanath Paul were charged for the  commission  of  the
offence under Section 302 read with Section 34 of the IPC and  Basudev  Paul
was charged for offence under Section 212 of the IPC.
5.    Prosecution examined thirty one witnesses  in  support  of  its  case;
prosecution  also  produced  documentary   evidences,   namely,   statements
recorded  under  Section  164  Cr.  P.C.  and  certain   other   documentary
evidences.   Accused  persons  adduced  no  oral  evidences.   Accused  were
examined under Section 313 Cr. P.C.
6.    The learned Additional  Sessions  Judge  acquitted  accused  Biswanath
Paul for offence under Section 212 and all  other  accused  from  charge  of
Section 302/34 .  State filed an appeal against the  acquittal  order.   The
complainant also filed a  Revisional  Application  CRR  No.  2263  of  2002,
challenging the order of the acquittal.  The High Court  vide  its  judgment
dated 16.02.2006 set aside the order of the acquittal as  regards  to  Anjan
Dasgupta and Biswanath Paul.  It,  however,  confirmed  the  acquittal  with
regard to the Sintu alias Saroj Roy and Bhola Kundu.  Acquittal  of  Basudev
Paul was also affirmed.  Appellant Anjan Dasgupta was sentenced  to  undergo
life imprisonment with a fine of Rs. 2000.00/-.  Anjan  Dasgupta  has  filed
this appeal challenging his conviction and sentence.
7.    We have heard Shri Kapil Sibal learned senior  counsel  appearing  for
the appellant, Shri Rupesh Kumar learned senior counsel  appearing  for  the
Respondent No. 2 and Parijat Sinha learned counsel for  the  State  of  West
Bengal.
8.    Shri Kapil Sibal learned senior counsel for the appellant, in  support
of the appeal contends that learned Sessions Judge after considering  entire
evidence on record had rightly come to the conclusion that evidence  led  by
prosecution  contradicts  the  prosecution  story,  as  to  the  genesis  of
occurrence, hence  did not commit any error in acquitting the appellant.  It
is contended that FIR was ante-dated and ante-timed as rightly held  by  the
trial court.  He submitted that from the evidence  of  PW  1  who  gave  the
written complaint for lodging an FIR, it  is  clear  that  he  went  to  the
police station after 7.30 PM, hence the  FIR  could  not  have  been  lodged
before 7.30-8.00 PM and mention of time of receiving the information in  the
FIR as 17.35 hour clearly proves that it was ante-timed.
9.    Shri Kapil Sibal further submits that FIR, in fact  was  lodged  after
inquest report and inquest report according to  the  evidence  was  prepared
after the 22.35 hours.  It is submitted that ante-timing and ante-dating  of
the FIR was with object to falsely implicate the accused since by that  time
prosecution story was still  in  vacuum.  Shri  Sibal  referred  to  various
contradictions in the statement of witnesses as noticed by trial court.   He
submits  that  High  Court  committed  error  in  reversing  the  order   of
acquittal.  It is well  settled  that  if  on  an  evidence  two  views  are
possible and the trial court exercises its discretion  in  having  acquitted
the accused, High Court ought not to interfere  with  the  acquittal  order.
The FIR was dispatched from the  police  station  with  great  delay,  which
could be placed before the Magistrate only on 22nd July,  2000,  which  also
clearly proves that FIR was not registered at the time and the date when  it
is claimed.  Mention of U.D. Case No. 43/2000, in FIR causes  suspicion  and
serious doubts with regard to the authenticity of  the  FIR  and  subsequent
inquest report. Prosecution failed to prove any motive for  the  murder  and
in absence of any motive, appellant could not have been convicted.
10.   Learned counsel appearing for the State as well  as  complainant  have
refuted submissions of learned counsel for the appellant. High Court,  while
reversing the acquittal order has  properly  reappraised  the  evidence  and
finding the guilt of the accused, conviction has been recorded.   There  are
more than one eyewitnesses who have  proved  by  their  evidence,  place  of
occurrence, death by  bullet  injury,  presence  and  participation  of  the
appellant in the crime, which has been  established  beyond  any  reasonable
doubt.  There was no delay or discrepancy in the FIR. FIR, being  a  genuine
document, trial court committed error in holding that FIR  is  ante-   timed
and anti-dated. The High  Court  after  correctly  appreciating  the  entire
evidence on record has rightly reversed the acquittal  order.   With  regard
to the delay  in sending the copy of the FIR to the Magistrate, nothing  was
asked in the cross-examination of the I.O. Further, although  much  argument
was raised before the trial court regarding ante-timing and  ante-dating  of
FIR but no questions were put before the I.O.  and  the  sub  inspector  who
recorded the FIR, when they appeared before the court.
11.   First, we proceed to consider the submissions of the  learned  counsel
for the appellant regarding ante-timing and ante-dating  of  the  FIR.   The
trial court had formulated point No. 3 as 'was the real FIR  suppressed  and
the FIR proved as ante-dated'. Trial court had observed that PW  1  went  to
the police station at about 7.30/8.00 PM but in the formal FIR  Exh.  9,  it
is recorded that information of the commission of offence  was  received  at
17.35 hours on 16th June, 2000.   This  entry  in  Exh.  9  contradicts  the
aforesaid evidence of the  PW  1  as  regard  to  the  time  of  lodging  of
complaint to the police station. Argument was raised before the trial  court
that FIR was, not only ante-timed but also ante-dated, as such  no  reliance
should be placed on the Exh. 3.  Magistrate had  perused  both  the  written
complaint and the FIR, which bore the endorsement  “seen”  dated  22nd  July
2000. Trial court held that FIR was dispatched from the  police  station  on
22nd June, 2000 and was received at  the  Magistrate  Court  on  23rd  June,
2000. The trial court had recorded its  conclusion  in  following  words  at
Page No. 107:
      “As the FIR was antetimed and there was abnormal unexplained delay  in
dispatching the FIR to the office of  the  learned  Magistrate  as  well  as
putting up the same before the learned Magistrate, adverse inference  should
be drawn against the prosecution.  The FIR  cannot  be  attached  with  much
value.”

Following observations were made by trial court at Page No. 106:
"Even if the FIR was lodged after 7-30/8 p.m. as  stated  by  the  P.W.1  it
would not lose it's value in it's entirety because  it  is  not  established
that the FIR proved at the trial  was  a  subsequent  one  or  that  it  was
written on any date after 16.6.2000”

12.   Now, coming to the evidence on record, there is evidence of PW 1  that
he  went  to  the  police  station  between  7.30/8.00  PM  and  the   First
Information Report was written by Arun Dey on his dictation. Both the  above
facts have been proved by statement of PW 1 Sandip Ghosh and PW 5 Arun  Dey;
both have signed the written complaint. Shri Sunil Giri  ASI  PW  29  proved
the recording of the FIR on the basis of written complaint given  by  Sandip
Ghosh.  No suggestion was put to  PW  29  regarding  the  date  or  time  of
recording of the FIR.
13.   Shri Sunil Giri  has  proved  the  FIR,  he  further  proved  that  he
received the FIR on 16th June, 2000, he proved  his  signature  on  the  FIR
also.  He denied the suggestion that FIR was written on subsequent  to  16th
June, 2000. Thus there is no case of ante-dating the  FIR,  even  the  trial
court did not accept the submission that FIR was ante-dated.
14.   Now we come to the main submissions, that is, ante-timing of  the  FIR
and delayed dispatch of the  FIR  to  the  court  of  the  Magistrate.   The
sequence of the events, as it emerges from the evidence brought  before  the
court, i.e. the  evidence of PW 1 and PW 30, there is no  doubt  that  PW  1
went to the police station at about 7.30 PM. The  statement  of  PW  30,  in
this context, is very relevant.  PW 30 in his statement has stated  that  on
16th June, 2000, when he was posted at Police Station, Naihati,  he  was  at
village Shibdaspur, in connection with another case, when at 17.15 hours  he
received an RT Message that at Mitra Bagan Crossing one  Debol  Kumar  Ghosh
had been shot dead. He  arrived  at  the  spot  at  about  17.40  hours  and
remained there till 21.05 hours. He further  stated  that  he  prepared  the
sketch map on the  spot  and  seized  the  certain  articles  including  two
bicycles from the entrance of the party office room. The  statement  in  his
examination-in-chief following was stated by I.O.:
      “While I was at village Shibdaspur under P. S. Naihaati in  connection
with another case  at  17.15hrs.  I  received  an  R.  T.  message  that  at
Mitrabagan crossing one Debal Kr. Ghosh had been shot dead. I then  directly
rushed to Mitrabagan More. I arrived there at 17-40 hrs.  There was law  and
order problem over the murder.  There was blockage of road. I  received  the
FIR from the Police Station at the said Mitrabagan  crossing.   I  had  been
engaged with law and order maintaing job upto  21.05  hrs.  I  went  to  the
C.P.I.M party office at  Mitrabagan  crossing  and  prepared  a  sketch  map
thereof with index.”

15.   In the cross-examination, he has stated that ASI Sunil Giri  had  send
him the R.T. message.  Sunil Giri ASI thus had received the  information  of
the murder  of  Debol  Kumar  Ghosh  before  17.15  hours,  arrival  of  Sub
Inspector Tapan Kumar Mishra I.O. on the scene at the  time  as  claimed  is
proved; I.O. also went to the Green View Nursing Home, accompanied  by  S.I.
Manick Chakraborty where dead body of the deceased, Debol  Kumar  Ghosh  was
laid. Under the dictation of the I.O., the inquest report  was  prepared  by
Manick Chakraborty Sub Inspector of  Police,  which  has  started  on  22.35
hours. The inquest report which  has  been  proved  by  witnesses  and  I.O.
clearly records the following:
"Investigation report over the dead body of Deceased Debol Kumar Ghosh  (48)
years son of late Kiran Chandra Ghosh of  212/1  R.B.C.  Road  P.S.  Naihati
District North 24-Paraganas (Illegible)in C/W Naihati  P.S.  U.D.  Case  No.
43/2000 dt. 16.62000 and  Naihati  P.S.  Case  No.  99  of  16.6.2000  under
Section 302/34 I.P.C. & 25/27 Arms Act.”

16.   The inquest report thus mentioned both unnatural death case (U.D.  No.
43/2000) dated 16th June, 2000 and P.S. Case  No.  99  of  16th  June,  2000
under Section 302/34 of IPC and 25/27 Arms Act.  From the above,  there  can
be no doubt that FIR was registered before the inquest report of  dead  body
started.  The evidence indicates that information of death was  received  by
the police station before 17.15 hours and police officials  arrived  at  the
spot immediately and the I.O. arrived at the spot  at   17.45  PM,  by  that
time other police  officials  had  already  reached.  The  receipt  and  the
recording of First Information Report  is  not  a  condition  precedent  for
setting in motion of a criminal investigation.  When  the  information  that
Debol  Kumar  Ghosh  is  shot  dead,  police  was  duty   bound   to   start
investigation.  This Court in APREN  JOSEPH  ALIAS  CURRENT  KUNJUKUNJU  AND
OTHERS VERSUS THE STATE OF KERALA 1973  (3)  SCC  114  stated  following  in
paragraph 11:
      “As observed by the Privy Council in K. E. v. Khwaja, the receipt  and
recording of information report by the police is not a  condition  precedent
to the setting in motion of a criminal investigation.”

17.   Much emphasis has been laid  down  by  the  learned  counsel  for  the
appellant on the fact  that, FIR notes in Column C, 'time 17.35'.  The  time
17.35 hours, we have already noted that Sunil Giri Sub Inspector  of  Police
has recorded in the First Information Report. He had  already  received  the
information before 17.15 hours since he had sent the  R.T.  message  to  the
I.O. Information of cognizable offence having  been  received  by  the  ASI,
with regard to the mention of time at 17.35 in the FIR, which  was  recorded
after 17.30 PM could have been explained if any questions were  put  to  ASI
Sunil Giri. From the cross-examination  of  ASI  Sunil  Giri,  it  does  not
appear that any question was asked regarding the  recording  time  17.35  in
the FIR.  The possibility cannot be ruled out  that  while  registering  the
FIR on the basis of written complaint, the ASI recorded  the  time  when  he
received the information in the police station of the death of  Debol  Kumar
Ghosh. In any view of matter, the above in no manner  diminishes  the  value
or credibility of the FIR.
18.   The information of murder was  received  before  17.35  hours  at  the
police station which is fully proved by arrival of the police officers  much
before 17.40 hours as proved by I.O. Hence mention of the time at 17.35  can
be treated as the time of receipt of the information of the offence  in  the
police station and there is no such inconsistencies in  the  FIR  so  as  to
come to the conclusion that FIR was ante-timed.
19.   FIR as well as the inquest report both  mentioned  the  accused  Anjan
Dasgupta.  The inquest report has not been questioned on  any  account.  The
offence, having been committed at around 4-5 PM, registration of the FIR  at
the police station between 7.30 to 8.00 PM does  not  cause  any  reason  to
draw any  adverse  inference,  more  so,  when  after  the  occurrence,  the
deceased was taken to the nearby nursing home where  he  was  declared  dead
and  body  remained  there  till  the  inquest   was   over.   The   another
circumstance, which have been heavily relied by trial court  and  reiterated
before us by learned counsel for the appellant is dispatch  of  the  FIR  to
the Magistrate with delay.  This Court in Pala  Singh  v.  State  of  Punjab
1972 (2) SCC 640 has held that delay in forwarding the FIR to court  is  not
fatal in a case in which investigation has commenced promptly on its  basis.

20.   The I.O. after receipt of  the  information  of  an  offence  by  R.T.
message had arrived at the scene on 17.40 hours, which  clearly  proves  the
prompt commencement of the investigation. FIR was dispatched on  22nd  June,
2000 which has also been accepted by trial court.  When  no  questions  were
put to I.O. in his cross-examination regarding the  delay  in  dispatch,  at
the time of hearing, the accused cannot make capital of the  said  delay  in
forwarding the FIR. This Court in Rabindra Mahto and  Another  v.  State  of
Jharkhand 2006 (10) SCC 432 has held that in every case from the mere  delay
in sending the FIR to the Magistrate, the Court would not conclude that  the
FIR  has  been  recorded  much  later  in  time  than  shown.  It  is   only
extraordinary and unexplained delay, which may raise  doubts  regarding  the
authenticity of the FIR.
21.   The present is the case, where recording of  the  FIR  on  16th  June,
2000 itself has been proved, accepted by the trial  court  also,  thus  mere
dispatch of the FIR on 22nd June,  2000  from  the  police  station  to  the
Magistrates' Court has  no  bearing  on  the  basis  of  which  any  adverse
presumption can be drawn.  From the above discussion, we are  of  the  clear
view that the FIR was genuine FIR and trial  court  committed  an  error  in
drawing adverse inference against the prosecution  and  refusing  to  attach
value to the FIR.
22.   The conclusion  of  the  learned  Sessions  Judge  that  the  FIR  was
manipulated is thus found to be  erroneous.  FIR  has  been  proved  by  the
evidence as noted above. Thus, one of the  basis  of  the  decision  of  the
Sessions Judge for discarding the prosecution case is knocked out.
23.   Now, we came to the consideration of oral evidence by Sessions  Judge.
Both the deceased and accused belong to the same  locality.  The  occurrence
was witnessed by several persons, including the eye-witnesses  who  appeared
before the court and proved the prosecution case, PW.1  Sandip  Ghosh,  PW.2
Vijay Das, PW.3 Kamal Nath, PW.4 Manabendra Nag, PW.6 Prasanta Ghosh,  PW.10
Shashanka Nath and PW 1 Shankar Ghosh.
24.   PW.1 Sandip Ghosh, the son of the deceased was  in  his  medical  shop
“Maa Medical Stores” which is at the distance of about 5 cubits from  CPI(M)
office. In his eye-witness account, he stated that at 04:50 PM when  he  was
at his shop, he found a motor vehicle, a Maruti Gypsy to come from  side  of
Naihati Station  and  got  itself  parked  on  R.B.C.  Road  after  crossing
Mitrapara and  R.B.C.  Road  Crossing.  He  saw  Biswanath  Paul  and  Anjan
Dasgupta got down from the said motor vehicle and at that very moment,  four
boys about age 22/23 years came in front  of  aforesaid  party  office  from
side of Mitra Bagan by two  Bicycle.  He  further  saw  Anjan  Dasgupta  and
Biswanath Paul  to point out his father sitting  inside  the  party  office.
One of the said boys took out a  pipe  gun  and  shoot  Debol  Ghosh.  Anjan
Dasgupta further observed that “Hay Gechi Tara Tari Chale Aiy”.  Thereafter,
the said vehicle left. In the  cross-examination,  the  witness  stood  firm
with his eye- witness accound and could not be shaken.
25.   PW 2 Vijay Das on the fateful day was standing  at  the  gate  of  the
party office inside of which Debol Ghosh  was  sitting.  Debol  Ghosh  after
taking the tea asked him to bring the beetle leave. He went  to  the  beetle
shop in front  of the party's office on the other side  of  road,  where  he
saw Anjan Dasgupta and Biswanath Paul to get down from Maruti Gypsy  at  the
crossing of R.B.C. Road. At that time  four persons  by  two  bicycles  came
from the Mitrapara side. One  of  the  said  four  boys  brought  a  shooter
machine and fired Debal Ghosh. Thereafter, all left towards Gouripur.
26.   PW 3 Kamal Nath, who has a shop  on  the  footpath  in  front  of  the
CPI(M) party office, stated in his evidence that in the  afternoon  of  16th
June at 03:00 PM to 04:00 PM, he was sitting inside the party office and  he
went  out  of  the  office  room  and  was  standing  outside    smoking   a
'cigarette'. At that time, a red Gypsy came and stationed  at  the  distance
of 3 cubits from him, from which  Anjan  Dasgupta  and  Biswanath  Paul  got
down. At that very time, 4 persons came by  2  Bicycles  from  the  side  of
Mitra Bagan. Two of the said persons fired from  outside  the  party  office
and shot Debol Ghosh. They left the bicycles and left  the  place  by  Gypsy
towards Gouripur.
27.   The almost similar eye-witness account has been narrated by other eye-
witness who were examined by Prosecution.
28.   Learned Sessions Judge pointing out certain  discrepancy/contradiction
in the statement held that the evidence by eye-witnesses  does  not  inspire
confidence. Learned  Sessions  Judge  had  also  made  observation  that  no
explanation had been offered by the  prosecution  as  to  why  statement  of
witnesses under Section 164 Cr. P.C. was recorded with delay. The  statement
given by the eye-witness in the court cannot  be  discarded  merely  on  the
grounds that statement which got recorded under Section 164 Cr.P.C.  by  the
prosecution was not immediately recorded.
29.   The cross-examination of I.O. PW.31 does not indicates  that  the  any
explanation was asked from him regarding delayed recording of the  statement
under Section 164 Cr.P.C.
30.   The High Court has also re-appraised the entire oral evidence and  had
observed that eye-witnesses stick to their earlier statements except one  or
two  witnesses  who  attempted  to  add  something  during  the  statements.
Following had been recorded by the High Court at Page 22:
“...We have carefully examined the  statement  of  the  witnesses  and  also
their statement recorded under Section 164 Cr.P.C. and we  find  that  there
was attempt on the part of one  or  two  witnesses  to  add  something  more
during their statement recorded before the learned  Magistrate,  but,  as  a
whole all the  eye-witnesses  sticked  to  their  earlier  statements  given
before the I.O. and they made the same  statement  before  the  trial  Court
during their examination...”

31.   After looking  to  the  evidence  of  eye-witnesses,  High  Court  has
observed that all of them had deposed of arrival of  Maruti  Gypsy  Vehicle,
Presence of Anjan Dasgupta and Biswanath Paul on  the  place  of  occurrence
and about giving instructions to shoot Debol Ghosh and subsequently  helping
the persons to flee from the place  of  occurrence  by  getting  inside  the
Maruti Gypsy Vehicle. Following  are  the  findings  recorded  by  the  High
Court:
“...From the statements of PW.1, PW.2, PW.3,  PW.4,  PW.6,  PW.10  and  also
from PW.21 we find that all of them deposed about arrival of a maruti  gypsy
vehicle, presence of Anjan Dasgupta and  Biswanath  Paul  on  the  place  of
occurrence and also about giving of instruction to shot at Debal  Ghosh  and
subsequently for helping the persons to flee from the  place  of  occurrence
by getting inside the maruti gypsy vehicle...”

32.   The appreciation of  evidence  of  eye-witnesses  and  discarding  the
aforesaid evidences by the learned Sessions Judge was on flimsy  ground  and
based on surmises and conjectures which has  been  correctly  re-appreciated
by the High Court. For instance, with regard to eye-witness PW 2 Vijay  Das,
learned Sessions Judge discard the evidence of  PW  2  by  giving  following
reasons:
“...In the statement recorded under Section 164  Cr.P.C.  marked  Exhibit  1
this gentleman told that on hearing sound of  firing  he  rushed  and  found
that Debal Ghosh was shot and one was going to pick up the bicycle. At  that
time he tried to catch the said man and Anjan said “be  quickly  the  pigs”.
In the statement recorded under Section 164  Cr.P.C.  which  was  made  more
than two months after the alleged  date  of  occurrence  did  not  name  the
person whom he tried to catch. So this omission  contradicts  the  aforesaid
evidence of the PW.2. The PW2's evidence being contradicted by  his  earlier
belated  statement  under  Section  164  Cr.P.C  as  well  as  suffers  from
improbability cannot be relied on...”

33.   The mere fact that the witness did not name the person whom  he  tried
to catch does not lead to  any  contradiction  since  all  eye-witness  have
stated that four persons came by 2 bicycles one of whom shoot Debol Ghosh.
34.   PW 2 stated that he tried to catch one person  of  the  aforesaid  and
omission not to name the person does not lead to any contradiction  nor  can
result in discarding the  evidence.  The  observation  of  learned  Sessions
Judge that the evidence suffers from the improbability and cannot be  relied
is also not based on any valid reason.
35.   Some minor contradiction has  been  pointed  out  by  learned  Session
Judge in the  evidence  of  other  eye-witnesses  which  have  rightly  been
discarded by the High Court and the High  Court  after  re-appreciating  the
evidence has rightly come to the conclusion that the occurrence as  well  as
participation  of  Anjan  Dasgupta,  the  appellant  was  proved.  Following
conclusion has been recorded by the High Court:
“...Thus from the evidence on record we get that several  witnesses  of  the
locality who were present on the  place  of  occurrence  had  noticed  Anjan
Dasgupta and Biswanath Paul on the place  of  occurrence  and  also  noticed
their active participation in the matter of murder of  Debal  Ghosh  and  in
this context we  want  to  record  that  the  learned  trial  Court  totally
misdirected itself in the matter of appreciation of the evidence of the eye-
witness.”


36.   High Court was conscious that the case where acquittal has been  made,
while entertaining an appeal over an order of acquittal  if  two  views  are
possible on making  proper  appreciation  of  available  evidence  the  view
going in favour of accused have to given  importance.  It  is  well  settled
that in case where an order of acquittal  has  been  made  on  improper  and
erroneous appreciation of evidence, it  is  always  open  to  the  court  of
appeal to make proper and reasonable appreciation evidence and  differ  from
the order of acquittal and  in  such  event,  it  shall  never  hesitate  in
reversing the same. Ultimately, the High Court concluded:
“...From scanning of the entire prosecution evidence and  having  regard  to
submission of the respective parties, we are constrained to  hold  that  the
learned trial Court was totally wrong both in law and, in  fact,  in  making
its observation that the FIR was antedated and anti timed and a  manipulated
one. The trial Court also erred in law by discarding the FIR  for  delay  in
dispatching the same in the Court of the Magistrate.”


37.   We are of the opinion that the findings  and  conclusion  recorded  by
the High Court are based on the correct appreciation of evidence and do  not
suffer from any  error.  The  judgment  of  the  High  Court  reversing  the
acquittal recorded by learned Sessions Judge needs  no  interference.  There
are no merits in this appeal. The appeal is dismissed. The appellant  is  on
bail his bail bonds are cancelled and the appellant is directed to be  taken
into custody forthwith.

                             .............................................J.
                              (PINAKI CHANDRA GHOSE)


                                ..........................................J.
                                             (ASHOK BHUSHAN)
NEW DELHI;
NOVEMBER 25,  2016.

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