Page No.# 1/19 vs The State Of Assam And Anr
2021 Latest Caselaw 3603 Gua

                                                             Page No.# 1/19

GAHC010115302016




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                Case No. : Crl.A./180/2016

            SRI BABUL HAZARIKA and ANR
            S/O RHANINDRA HAZARIKA

            2: PRAKASH HAZARIKA @ MONI
             S/O SRI BABUL HAZARIKA
             BOTH ARE R/O SANATANGAON
             P.O. and P.S. NORTH LAKHIMPUR
             DIST. LAKHIMPUR
            ASSAM
             PIN 78700

            VERSUS

            THE STATE OF ASSAM and ANR


            2:DILIP DAS INFORMANT
             S/O LT. BHALUKA DAS
             R/O SANATANGAON
             P.O. and P.S. NORTH LAKHIMPUR
             DIST. LAKHIMPUR
            ASSAM
             PIN 78700

Advocate for the Petitioner   : MR.M SARMAA-2

Advocate for the Respondent :

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BEFORE HONOURABLE MR. JUSTICE N. KOTISWAR SINGH HONOURABLE MRS. JUSTICE MALASRI NANDI

JUDGMENT & ORDER (CAV)

Date : 23-12-2021 (M. Nandi, J.)

1. This appeal has been preferred against the judgment and order passed by the learned Sessions Judge, North Lakhimpur, Lakhimpur in Sessions Case No. 67(NL) 2010 dated 05.05.2014 convicting the accused appellants Babul Hazarika and Prakash Hazarika under Section 302/341/34 IPC and sentenced them to R.I. for life each and also to pay a fine of Rs. 5,000/- each in default R.I. for 3 months for the offence U/S. 302/34 IPC and also to suffer R.I. for one month each for the offence under Section 341/34 IPC.

2. The brief facts of the case is that on 11.12.2008 at about 8-30 P.M. the informant Sri Dilip Das lodged an FIR before the Officer In-Charge, North Lakhimpur P.S.stating inter-alia that on 11.12.2008 at about 8-30 P.M. while he was coming from the market along with one Sri Ramkrishna Hazarika, the accused persons namely, Shri Babul Hazarika, Shri Prakash Hazarika, Shri Jaan Hazarika, Smt. Prabha Hazarika and Smt. Sangita Hazarika armed with spear, lathi, dao and bow, confronted them in the way and charged at them in order to launch an attack. When they raised alarm his son Babu Das and Son-in-law Papu Das came to the spot and when they tried to put resistance, the accused persons aforesaid brutally killed his son.

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3. On receipt of the FIR, a case was registered vide North Lakhimpur P.S. Case No. 805/08 under Sections 341/302/34 IPC and after completion of the investigation charge-sheet was submitted against the accused persons under Section 302/341/34 IPC. Accordingly charge was framed under Section 341/302/34 IPC which was explained to the accused persons on their appearance before the Court to which they pleaded not guilty and claimed to be tried.

4. In order to substantiate the case, the prosecution examined as many as 11 witnesses and the incriminating evidence was put to the accused while recording their statement under Section 313 Cr.P.C. wherein they denied the case of the prosecution and false implication in the case. Accused Prakash Hazarika took the plea of alibi that he was not present on the spot and at the time of incident he was in his shop. He also examined DW 1 Prabha Hazarika, his mother, in support of his case.

5. After scrutinising the evidence made by the prosecution and the defence taken by the accused vide impugned judgment dated 05.05.2014 both the accused persons were convicted under Section 302/ 341/34 IPC and sentenced as mentioned herein above.

6. Being highly aggrieved and dissatisfied with the judgment and order passed by the learned Sessions Judge, the appellants have preferred this appeal before this Court. It is pertinent to mention here that the accused/ appellant No. 1 Babul Hazarika died after filing of the appeal as it was informed by the learned Page No.# 4/19

counsel for the appellant. In view thereof the appeal by appellant No. 1 stands abated. Hence, we only have to consider the case of appellant No. 2 Prakash Hazarika.

7. Assailing the findings of the learned Trial Court learned counsel for the appellant urged that the Trial Court erred in relying upon the testimony of the alleged eye witnesses as their evidence are full of contradictions and improvements. The testimony of those material witnesses (PWs 1,3,4,5,7 and 8) were contradictory as to the number of persons present during the incident, the spot of occurrence and the persons involved in the incident.

8. It is Further argued that the impugned judgment of conviction and sentence is not sustainable as it is based on complete mis-reading of evidence on record because there is no cogent, clear or convincing evidence to connect the appellants with the commission of the offence. It is further contended that if there are two views possible, then the benefit of doubt should go to the appellants.

9. Rebutting the submissions of learned counsel for the appellants, learned Public Prosecutor appearing for the State submitted that no fault can be found with the impugned judgment as the same is based upon proper appreciation of evidence as also law on the subject. Hence, conviction and sentence imposed by the learned Sessions Judge should not be interfered with.

10. Before considering the rival submissions of learned counsel for the Page No.# 5/19

parties, it will be in fitness of things to have a brief narration of the material witnesses examined by the prosecution. We have also gone through the judgment of learned Trial Court.

11. PW-1 is informant Dilip Das, who deposed in his evidence that the occurrence took place in front of the house of the accused Babul Hazarika. At that time he was going towards his house from North Lakhimpur Town on foot. He was accompanied by Ram Krishna Hazarika. On the way accused Prakash Hazarika and Babul Hazarika intercepted him in front of their house and tried to assault him physically. When he raised alarm, his son Babu Das and his son-in- law Papu Das came there to rescue him. Then accused Prakash Hazarika struck a blow by a 'posa' (an iron pointed object with a handle) on the right side of the chest of his son Babu Das which crossed through his body. He immediately fell on the ground and succumbed to his injuries. His son was taken to North Lakhimpur Civil Hospital. Doctor examined him and declared him brought dead. On the next day he lodged an FIR.

12. PW-1 in his cross-examination has replied that at the time of occurrence he, Ram Krishna Hazarika, deceased Babu Das and his son -in-law Papu Das were present at the place of occurrence. He could not say whether he stated before the Investigating Officer that after his arrival at his residence the occurrence took place. At the time of the incident there was no electric connection in his house as well as in the house of the accused but at the time of incident there was sufficient moon light.

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13. PW-3 Ram Krishna Hazarika who accompanied the informant Dilip Das on the date of the incident. According to PW-3 the occurrence took place on 11.12.2008 at about 8-30 P.M. in front of the house of accused, Babul Hazarika. At the time of occurrence he and Dilip Das were returning from market. They were required to go to their house by crossing the house of the accused persons. When they reached near the house of the accused they were intercepted by the accused Babul Hazarika and Prakash Hazarika and Smti. Prabha Hazarika. At that time Babul Hazarika was holding a 'Dao' and Prakash Hazarika was holding a 'Posa' and Smti. Prabha Hazarika was holding an Iron. They were about to assault them physically. Being scared they raised alarm and Babu Das @ Pranjal Das, Moina Das and Papu Das arrived at the spot and Prakash Hazarika hit Moina Das with a piece of brick as a result Moina Das fell on the ground and became unconscious. Then Dilip Das intervened and asked both the parties not to quarrel among themselves and tried to take away Moina Das from the place of occurrence. At that time accused Babul Hazarika gave a kick blow to Babu Das @ Pranjal Das as a result Babu Das @ Pranjal Das fell on the ground. Thereafter accused Prakash Hazarika struck a blow on the chest of Babu Das @ Pranjal Das by a 'Posa'. The said 'posa' pierced the chest of Babu Das @ Pranjal Das and thereafter the accused fled away from the place.

14. In his cross-examination PW-3 replied that he (PW-3) and the accused are the inhabitants of Sanatangaon. The area where the accused's house is located is known as Milan Nagar. There is a paddy field in between the house of the informant, Dilip Das and the house of the accused persons. There was two paths to go to the house of Dilip Das i.e. Sanaton Village. It was suggested that on the night of the occurrence there was a feast at the house of Page No.# 7/19

the informant and he was not attended the said feast. It was further suggested that on the night of occurrence, they took the route from Milon Nagar and Bengali Colony with a view to assault the accused persons and their family members. At the time of the occurrence he and Dilip Das quarrelled with the accused persons in their house and in the meantime Babul Das, Papu Das, Smt. Pompi Das came and thereafter ransacked the belongings of the house of the accused and assaulted Babul Hazarika with a Dao with an intention to kill him and during scuffle between both the parties accidentally the 'Posa' which was brought by them pierced the chest of the deceased Babu Das @ Pranjal Das.

15. PW-4 is Papu Das. He stated something different from PW-1 and PW- 3. He deposed in his evidence that the incident occurred on 11.12.2008 at about 8-30 P.M. in front of the house of the accused. At the time of occurrence he was in his house which is situated near the house of the accused. He heard the cries of Moina Das and came to the spot and found Moina Das lying on the ground and he had seen the accused Babul Hazarika standing with a dao and accused Prakash Hazarika with a 'Posa' and Smt. Prabha Hazarika with an 'Iron'. He also found Babu Das @ Pranjal Das at the place of occurrence. The accused Babul Hazarika gave a kick blow on Babu Das @ Pranjal Das as a result of which he fell on the ground. Immediately Prakash Hazarika struck a 'Posa' blow on the chest of Babu Das @ Pranjal Das which pierced the chest of Babu Das @ Pranjal Das. Thereafter the accused persons had left the place. The injured Babu Das @ Pranjal Das was taken to North Lakhimpur Civil Hospital wherein the Doctor declared him brought dead. PW-4 replied in his cross-examination that he had not gone to the place of occurrence along with Moina Das and Babu Das.

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16. PW-5 is Smt. Deba Kanti Das who introduced herself as an eye witness to the incident whereas PW-1,3 and 4 did not utter a single word about the presence of Deba Kanti Das on the spot at the time of incident. She stated before the Court that the occurrence took place about 5 years back. On the date of occurrence at about 7 p.m. hearing cries near the house of the accused persons, she went there and noticed accused Babul Hazarika dragging Babu Das towards his residence. At that time accused Prakash Hazarika struck spear blow on the chest of Babu Das. He fell down on the ground and blood was oozing out from his chest. Both the accused persons fled away from the scene leaving the spear on the spot. She picked up the spear and took the same to their house to show it to the police. After two days of the occurrence police visited her house and at that time she showed the spear which was used in the commission of the offence and handed over the same to the police. Accordingly, police seized that spear.

17. PW-7 is Pradip Saikia. He also claimed that he had seen the incident but the so called eye witnesses i.e. PW-1, 3, 4, 5 and 8 no where stated that PW-7 Pradip Saikia was also present when the incident took place or he came to the spot immediately after the incident. According to PW-7, on the date of occurrence i.e. on 11.12.2008 at about 8-30 p.m. he had just arrived from his duty and then he heard noise near the gateway of the accused and he went there and found both the accused persons having altercated with Pranjal Das @ Babu Das. He asked the accused not to quarrel. In the meantime many people assembled there but they did not listen to him. Accused Babul Hazarika pushed Pranjal Das and Prakash Hazarika inflicted a blow with a 'Posa' on the Page No.# 9/19

abdomen of Babu Das. Babu Das fell on the ground. The injured was taken to the hospital and the Doctor after examining him declared him brought dead. Later on police seized the said posa from Smt. Deba Kanti Das. He put his signature on the seizure list.

18. In his cross-examination PW 7 replied that at the time of incident Babu Das was having a bag in his hand. He was coming from market. There were some other persons at the place of occurrence but he did not know their names. He knew only papu Das and Popi Das. Residence of Bimal Das and two other families are situated near the place of occurrence.

19. PW-8 is Smti. Popi Das, wife of Papu Das (PW-4) and daughter of the informant. From her deposition, it discloses that the occurrence took place on 11.12.2008 at about 8 p.m. At that time she was in her house. Having heard hue and cry near the house of the accused persons, she went there and found that the accused Babul Hazarika inflicting kick blow on Babu Das as a result of which he fell on the ground and immediately Prakash Hazarika struck a spear blow on the chest of Babu Das. Having seen the said incident she raised alarm and immediately her parents arrived at the place of occurrence. Babu Das was taken to North Lakhimpur Civil Hospital and Doctor after examination of Babu Das declared him brought dead.

20. After going through the evidence of aforesaid witnesses, it appears one thing which is common to every witness that accused Prakash Hazarika struck a blow with a spear towards the deceased Babu Das @ Pranjal Das for Page No.# 10/19

which he sustained injury on his chest. The Medical Officer who was examined in this case as PW-10 also supported the fact by stating that on 13.12.2008 he was working at North Lakhimpur Civil Hospital as Senior Medical & Health Officer. On that day at about 11 A.M. he performed Post Mortem examination on the dead body of Babu Das on police requisition and on examination he found one clean cut incised wound over the right side of the chest about 4 c.m. in length and 1 cm in breadth which was transverse in dimension. The wound was just below and lateral to the right nipple. The perforated incostal muscles and penetrated right pleura and right lung and ending in the right side of the vertebral column. The right pleural cavity was full of black coloured blood.

Other organs were found healthy. The injuries described above were ante mortem in nature.

Doctor opined that the death was due to shock and haemorrhage and due to injury of the lung. It is also stated that the injuries found on the dead body of the deceased are sufficient to cause death of a person in the ordinary course of nature.

21. If we meticulously gone through the evidence of the aforesaid witnesses, it can be said that there are lots of contradictions in the evidence of the witnesses regarding presence of the persons on the spot as well as eye witness to the incident. According to PW-1 on the date of incident he was accompanied with Ram Krishna Hazarika PW-3 at the time of occurrence. When the accused Babul Hazarika and Prakash Hazarika intercepted them in front of the their house and tried to assault them, he raised alarm. On hearing his cries, Page No.# 11/19

his son Babu Das and son-in-law Papu Das arrived at the place of occurrence whereas PW-3 has introduced another person i.e. Moina Das along with Babu Das and Papu Das. According to PW-3 accused Prakash Hazarika hit Moina Das by a piece of brick as a result of which Moina Das became unconscious and Dilip Das intervened asking both the parties not to quarrel among themselves and tried to take away Moina Das from the place of incident. At that time accused Babul Hazarika gave a kick blow to Babu Das but PW-1 Dilip Das is totally silent regarding presence of Moina Das on the spot or assaulting towards her by Prakash Hazarika with a piece of brick and she became unconscious and the part played by Dilip Das to negotiate between the parties.

22. According to Dilip Das (PW-1) on interception by the accused persons when he raised alarm, Babu Das and Papu Das came to the spot but Papu Das (PW-4) has stated that at the time of incident he was in his house which is near to the house of the accused. Having heard the cries of Moina Das, he came to the spot and found Moina Das lying on the ground. PW-4 has stated that along with Babul Hazarika and Prakash Hazarika, Smti. Prabha Hazarika was also present on the spot and she was carrying an iron on her hand. When he came to the spot he found that Babu Das @ Pranjal Das was there. He did not say that he and Babu Das, the deceased came to the spot after hearing the cries of PW-1 Dilip Das.

23. In his cross-examination PW-4 clearly stated that he had not gone to the place of occurrence along with Moina Das and Babu Das whereas PW-3 Ram Krishna Hazarika stated that when the accused persons were about to assault him and PW-1, they raised alarm and Babu Das @ Pranjal Das, Moina Das and Page No.# 12/19

Papu Das i.e. PW-4 came to the spot. PW-4 Papu Das has specifically stated that his wife Poppy Das arrived at the place of occurrence after the whole incident of assault towards Babu Das @ Pranjal Das was over. PW-8 Smti. Popi Das did not support the evidence of PW-4. She categorically stated that having heard hue and cry from the house of the accused persons, she went to the spot and had seen accused Babul Hazarika giving kick blow to Babu Das as a result of which he fell on the ground. Having seen the said incident she raised alarm and her parents i.e. PW-1 Dilip Das and her mother (not examined in this case) had arrived at the place of incident.

24. Let us have a look on the evidence of PW-5 and PW-7 who have introduced themselves as eye witnesses to the incident. PW-5 has stated that when she had reached the place of occurrence, she noticed Babul Hazarika dragging Babu Das towards his residence. That fact was never been said by PWs 1,3,4,7 and 8. PW-5 has admitted the fact that on the date of incident prior to the occurrence a feast was held in the house of the informant Dilip Das as his wife was acquitted in a case which was filed by the accused persons. In the said feast some guest including Papu Das, Popi Das, Pradip Saikia, Ram Krishna Hazarika were present. But PW-3 Ram Krishna Hazarika denied the said fact that there was any feast on the date of incident in the house of Dilip Das and he had attended the said feast.

25. Now as regards testimony of eye witnesses with regard to actual incident, it would be useful to have a look on the relevant law. The Apex Court in a very recent case reported in Kathi Bharat Bajsur & Another Vs. State of Gujarat 2012 Criminal L.J. 2717 (S.C.) has observed that inconsistencies or Page No.# 13/19

contradictions in oral evidence do not rule out oral evidence when medical evidence is in consonance with principal part of oral/ ocular evidence. It has been further held that reaction of eye witness in unusual manner after incident does not affect prosecution case and witnesses cannot be disbelieved on this ground.

26. In the case of Leela Ram Vs. State of Haryana AIR 1999 SC 3717 Hon'ble Supreme Court held which reads as follows-

"It is indeed necessary to note that one hardly comes across a

witness whose evidence does not contain some exaggeration or embellishment sometimes there could even be a deliberate attempt to offer embellishment and sometimes in their over anxiety they may give a slightly exaggerated account. The court can sift the chaff from the grain and find out the truth from the testimony of the witnesses. Total repulsion of the evidence is unnecessary. The evidence is to be considered from the point of view of trustworthiness. If this element is satisfied, it ought to inspire confidence in the mind of the court to accept the stated evidence though not however in the absence of the same."

27. Hon'ble Supreme Court, in the case of Sunil Kumar Sambhudayal Gupta (Dr.) Vs. State of Maharashtra (2010) 13 SCC 657, summarized the law on material contradictions in evidence thus :

" While appreciating the evidence, the court has to take into

consideration whether the contradictions/ omissions had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without Page No.# 14/19

effecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety. The Trial court, after going through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate court in normal course would not be justified in reviewing the same again without justifiable reasons. (Vide State Vs. Saravanan AIR 2009 SC 152)."

28. Whether the omissions(s) amount to a contradiction, creating a serious doubt about the truthfulness of a witness and other witness also makes material improvememts before the court in order to make the evidence acceptable, it cannot be safe to rely upon such evidence. (Vide State of Rajasthan Vs. Rajendra Singh AIR 1998 SC 2554).

29. The discrepancies in the evidence of eyewitnesses, if found to be not minor in nature, may be a ground for disbelieving and discrediting their evidence. In such circumstances, witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with other evidence or with the statement already recorded, in such a case it cannot be held that the prosecution proved its case beyond reasonable doubt. (Vide Mahendra Pratap Singh Vs. State of U.P. reported in (2019) 11 SCC 334).

30. In case, the complainant in the FIR or the witness in his statement u/s. 161 Cr.P.C. has not disclosed certain facts but meets the prosecution case first time before the court, such version lacks credence and is liable to be discarded.( Vide State Vs. Sait AIR 2009 SC (Supp) 284).

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31. In State of Rajasthan Vs. Kalki, (AIR 1981 SC 1390) While dealing with this issue Hon'ble Supreme Court observed as under :

"In the depositions of witnesses there are always normal discrepancies,

howsoever honest and truthful they may be. These discrepancies are due to normal errors of observations, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of the occurrence, and the like, Material discrepancies are those which are not normal, and not expected of a normal person."

32. The courts have to label the category to which a discrepancy belongs. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. (Syed Ibrahim Vs. State of A.P. AIR 2006 SC 2908) and Arumugam Vs. State (AIR 2009 SC 331).

33. In Bihari Nath Goswami Vs. Shiv Kumar Singh Hon'ble Supreme Court examined the issue and held as follows :-

"Exaggerations per se do not render the evidence brittle. But it can be one of

the factors to test the credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility."

34. While deciding such a case, the court has to apply the aforesaid tests. Mere marginal variations in the statements cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the Page No.# 16/19

prosecution case, render the testimony of the witness liable to be discredited.

35. In the case in hand, the defence examined one witness i.e. DW- 1 Prabha Hazarika, mother of the accused Prakash Hazarika and wife of other accused Babul Hazarika. She deposed in her evidence that the occurrence took place on 11.12.2008. On the date of occurrence at about 7-30 to 8-00 P.M. her husband, She herself and her daughter Sangita Hazarika were present. At that time her son Prakash Hazarika was in his shop located at PWD Colony of North Lakhimpur Town. On the date of incident the informant Dilip Das arranged one feast at his house. At that time they were about to take their meal on the night. At the moment informant Dilip Das along with Papu Das, Babu Das, Popi Das, Dilip Dutta, Pradip Saikia and Ram Krishna Hazarika came to their house armed with deadly weapons like Lathi, Dao, Possa, Axe etc. And they broke down the bamboo entrance door of their house by giving kicks. The informant Dilip Das gave lathi blow on the head of her husband. Thereafter the other persons started assaulting them with weapons and Babu Das tried to kill her husband by giving axe blow. At this she obstructed and pushed him back and somehow she managed to escape along with her injured husband and daughter and rushed to the nearby North Lakhimpur P.S. The informant and his family members committed mischief to their dwelling house and broke down their utensils, destroyed their clothes and also cut down some C.I. Sheets of their veranda and also broke down the entire house. They spent the entire night in the police station. On the following day morning her husband lodged the FIR. After three days police arrested her husband and her son for the allegation of commission of murder of Babu Das. She did not know how Babu Das died.

36. In her cross-examination, DW-1 replied that there are some other Page No.# 17/19

houses adjacent to their house and she did not know the persons who were residing in those houses as they have newly settled in that area.

37. From the Cross-examination of PW-1, it also reveals that the accused persons also instituted a criminal case against his wife and in that case his wife was acquitted on the date before the incident took place. There was a feast on the date of occurrence in his house as well as in the house of the accused. It was suggested that on the date of occurrence being overjoyed on the acquittal of the wife of PW-1, they arranged a feast in their residence and at that time he along with his family members and Ram Krishna Hazarika went to house of the accused persons and also caused damage to their house being revengeful on the institution of the criminal case against the wife of PW-1 falsely.

It was also suggested that the wife of PW-1 and his wife inflicted dao blow on the head of the accused Babul Hazarika and caused injury to his persons. They were armed with dao, possa etc. Due to the alleged scuffle somehow the 'possa' which was brought by them pierced the chest of his deceased son.

38. From the cross-examination of PW-1 it also reveals that the accused persons settled at the place of occurrence one year prior to the incident by constructing a house thereon. After the incident they were not residing in that house and the same was left abandoned.

39. After going through the records of Sessions Case No. 67(NL)/2010 it reveals that the Investigating Officer Bhaben Dutta who had investigated the case was expired and to prove his investigation PW-11 was examined. From his deposition it reveals that some photographs of place of occurrence were taken Page No.# 18/19

during investigation which were exhibited in the case. From the photographs of the place of occurrence it appears that one house has been demolished. As per sketch map vide Ext. 6, there are three numbers of place of occurrence and one place of occurrence is the house campus of the accused persons. In Ext. 6 the Investigating Officer indicated the letter 'Kha' as one of the place of occurrence and it has also a path approaching to the house of the accused. According to PW-11, the I.O. had not examined Moina Das by showing her name in the charge-sheet who was found lying in the place of occurrence. The material Ext. 'Ka' the pointed spear was shown to the I.O. in the residence of Dilip Das by Smti. Deba Kanti Das PW-5 and handed over to him. The I.O. had not recovered any weapon from the house of the accused.

40. If we analyze the principle of law on the background of the present case, it is obvious that the golden thread which runs through the web of justice in criminal cases is that if two views are possible on the evidence adduced in a case, one pointing to the guilt of the accused and other to his innocence, the view which is favourable to the accused should be adopted.

41. Hon'ble Supreme Court in the case of Govindaraju @ Govinda Vs. State of Karnataka reported in 2013 Vol. 15 SCC 315 it was held- " that the golden thread which runs through the web of justice in criminal cases is that if two views are possible on the evidence adduced in a case, one pointing to the guilt of the accused and other to his innocence, the view which is favourable to the accused should be adopted. There are no jurisdictional limitations on the power of the Appellate Court but it is to be exercised with some circumspection. The paramount consideration of the Court should be to avoid miscarriage of Page No.# 19/19

justice. A miscarriage of justice which may arise from the acquittal of guilty is no less than that from the conviction of an innocent. If there is miscarriage of justice from the acquittal, the higher Court would examine the matter as a Court of fact and appeal while correcting the errors of law and in appreciation of evidence as well. Then the Appellate Court may even proceed to record the judgment of guilt to meet the ends of justice, if it is really called for."

42. In the present case, on a cumulative reading and appreciation of the entire evidence on record, we are of the considered view that the case of the prosecution suffers from improbabilities, infirmities and irregularities in the evidence of so called eye witnesses who are not reliable and worthy of credence.

43. For the reasons aforesaid, we allow the present appeal acquitting the appellant Prakash Hazarika of the offence under Section 302/341 IPC. He be set at liberty forthwith if not wanted in any other case.

LCR be sent back.

                                     JUDGE                      JUDGE




Comparing Assistant