Tripura High Court
Smt. Nirupama Deb vs The State Of Tripura on 22 December, 2021
Page 1 of 34
HIGH COURT OF TRIPURA
A_G_A_R_T_A_L_A
Crl.A. No. 35 of 2019
1. Smt. Nirupama Deb, W/o late Jahar Deb, resident of Baralutma, P.S.
Salema, District: Dhalai Tripura.
.....Appellant
-V E R S U S-
1. The State of Tripura, represented by Secretary cum Commissioner,
Home Department, Govt. of Tripura.
2. Sri Gouranga Deb, son of late Subodh Deb, resident of Baralutma,
Salema, P.S. Salema, District: Dhalai Tripura.
..... Respondents.
B_E_F_O_R_E
HON‟BLE MR. JUSTICE T. AMARNATH GOUD
HON‟BLE MR. JUSTICE ARINDAM LODH
For Appellant(s) : Mr. B. N. Majumder, Sr. Advocate.
Mr. R. Saha, Advocate.
For Respondent(s) : Mr. Samrat Ghosh, Addl. P.P.
Mr. A. Acharjee, Advocate.
Date of hearing : 17.11.2021
Date of delivery of
judgment and order : 22.12.2021
Whether fit for reporting : YES
JUDGMENT & ORDER
[T. Amarnath Goud, J]
Heard Mr. B. N. Majumder, learned senior counsel assisted by Mr. R.
Saha, learned counsel appearing for the appellant. Also heard Mr. S. Ghosh,
learned Addl. Public Prosecutor appearing for the respondent-State and Mr. A.
Acharjee, learned counsel appearing for the respondent No.2 (the accused
herein).
[2] This criminal appeal under Section-372 of the Code of
Criminal Procedure is directed against the judgment and order of
acquittal dated 28.02.2019 passed by the learned Additional Sessions
Judge, Dhalai Tripura Judicial District, Kamalpur, in connection with
case No.S.T. (T-1) 01 of 2014, whereby and whereunder, the respondent
No.2, (the accused herein) has been acquitted from the charge levelled
against him under Section-302 of IPC by the trial court on the ground of
benefit of doubt.
[3] The prosecution was launched on the basis of a written
complaint submitted by the complainant, Sri Sukharanjan Dey (PW-27),
stating inter alia that, on 19.09.2013, in the evening at about 7.00pm, he
got an information from his younger sister, Smt. Nirupama Deb (PW-15)
(wife of the deceased husband) stating that her husband Jahar Deb
(deceased herein) had been killed by the accused Gouranga Deb (the
accused-person), the elder brother of her husband. After receiving this
information, the complainant proceeded to Kamalpur Hospital where he
found that the dead body Jahar Deb was lying in a table of the hospital.
Thereafter, his sister, (PW-15) told him that her husband Jahar Deb just
went out from his house at evening and after few seconds she heard
shouting of her husband in front of their gate. Then she ran away to the
spot and saw her husband Jahar Deb having serious bleeding injuries on
his person. It was further stated that on the way to hospital, her husband
told her (PW-15) that the accused Gouranga Deb caused him injury with
a knife.
[4] On the basis of the aforesaid complaint dated 19.09.2013,
the Officer-in-charge of Salema Police Station registered Salema Police
Station case No. 38 of 2013 under Section-302 of IPC against the
accused Sri Gouranga Deb. After criminal law was set in motion, the
police authority started investigation and subsequently, the accused was
arrested. On completion of the investigation, the investigating authority
submitted the charge-sheet against the accused-person, the respondent
No.2, for commission of offence punishable under Section-302 of IPC.
Subsequently, the case was committed to the Court of learned Addl.
Sessions Judge, North Tripura, Kamalpur, for trial in accordance with
law.
[5] The accused person was charged under Section-302 of IPC
to which he pleaded not guilty and claimed to be tried.
[6] To substantiate the charge, the prosecution adduced as many
as 29 [twenty-nine] witnesses including the complainant and also
exhibited certain relevant documents and materials [Exbts.1 to 18]
including the inquest report.
[7] Thereafter, the accused, respondent No.2 was examined
separately under Section-313 of Cr.P.C. for having his response in
respect of the incriminating materials those surfaced in the evidence as
adduced by the prosecution. Thereafter, on appreciation of the evidence,
the learned trial court by the judgment and order dated 28.02.2019,
acquitted the accused-respondent No.2 from the charge levelled against
him.
[8] After hearing both sides, the learned trial Court delivered the
judgment and order of acquittal dated 28.02.2019, whereby and
whereunder, the accused-person, the respondent No.2 has been acquitted
from the charge as framed against him under Section-302 of IPC on the
ground of benefit of doubt. Being aggrieved by and dissatisfied with the
judgment and order of acquittal, the present appeal has been preferred by
the appellant.
[9] In view of the above observation, let us examine the
evidence of PW-15, the wife of the deceased-husband which is very
important for determining the case in hand. PW-15, Smt. Nirupama Deb
in her deposition has stated that the deceased Jahar Deb was her husband
and the accused Gourang Deb (respondent No.2 herein) was the elder
brother of her husband. She has stated in her deposition that the accused
person had filed a case for land of probate in which her husband was the
respondent. The case was filed in Kailashahar. On 19.09.2013, when her
husband had returned in the evening from Kailashahar, at around 6.00pm
in the evening her husband parked his bike and told her that he would
visit the house of his cousin brother Uttam Deb (PW-16). She has further
stated that after few minutes she heard shouting and rushed to the gate
and saw her husband with bleeding injuries lying on the ground.
Thereafter her husband told her that his elder brother Gouranga Deb, the
respondent No.2 had stabbed him with a knife. Respondent No.2 also
stood beside her husband with the knife in his hand wearing sky-blue
shirt and ran away from the place of occurrence after seeing her making
hue and cry. She further deposed that her relatives i.e. Uttam Deb (PW-
16), Arun Deb (PW-6) and Tarun Deb (PW-18) came to the spot and her
husband also told them that he had been stabbed by his brother Gouranga
Deb and gradually her husband started losing consciousness. They took
him first in an auto and from Halahali in a car towards hospital. In
Kamalpur Hospital the attending doctor declared her husband as "brought
dead". She also narrated the incident to her brother Sukharanjan Dey
(PW-27), the complainant herein.
[10] PW-14, Dr. Subrata Paul, who performed the autopsy on the
dead body of Jahar Deb, has stated that the cause of death was due to
hemorrhagic shock caused as a consequence of inter abdominal bleeding
due to injuries to liver, kidney and stomach. He has further stated that the
nature of death is homicidal in nature. PW-14 also identified the report
prepared by him bearing his signature and on identification it was marked
as Exbt.4. PW-14 has further stated that the incised wound and stab
wound found on the body of the deceased can be caused by the weapon
as recovered but, chop wound cannot be caused by this weapon as it
would require heavier weapon to cause the chop wound.
[11] PW-20, Samprai Debbarma, a day labourer, has deposed that
he was asked by the police to recover a knife from the septic tank of the
house of the accused Gouranga Deb. He went to his house in Katalutma
with large number of police men. He has stated that the accused was also
present at the relevant point of time. He went inside the septic tank and
recovered a knife. The witness identified the knife which is marked as
Exbt.M.O.III.
[12] PW-24, Takhirai Debbarma, who is a constable has deposed
that he went to the house of Gouranga Deb, respondent No.2 with other
police personnel as well as one Sweeper namely, Samprai Debbarma for
discovery of weapon of offence. He further deposed that the accused-
person told that the knife was thrown in the septic tank. It has been stated
that the accused-person also identified the knife which is marked as
Exbt.M.O.III, in his presence.
[13] Beside that, on disclosure statement of the accused after
arrest, weapon of offence was discovered. As per version of PW-24 and
PW-20, the knife was seized from a septic tank in the house of the
accused Gouranga Deb and discovery of knife following disclosure
statement was covered under Section-27 of the Evidence Act. It reveals
from the deposition of PW-29 that the investigating officer of the case in
course of investigation arrested the accused Gouranga Deb, who made a
disclosure statement and it was recorded by him, which is marked as
Exbt.18. In the disclosure statement, the accused stated that the weapon
(Dagger) which he used to kill was thrown in the whole tank of latrine. In
this regard, the evidence of the investigating officer is corroborated with
the evidence of PW-24 and PW-20.
[14] In support of the case of the accused-person, Mr. A.
Acharjee, learned counsel appearing for the accused-respondent No.2 had
relied upon a decision of the Apex Court in para-14 of Amar Singh v.
The State (NCT of Delhi) reported in (2020) SCC online SC 826 where
it was held thus:
"14. The prosecution apart from other formal witnesses produced
three eye witnesses in support of its version, namely, Parminder Singh
PW-1, Amar Singh PW- 11, the two brothers of the deceased and
Sujan Singh PW-5. PW-11 and PW-5 turned hostile. PW-11 was
cross-examined by the prosecution. He simply denied having seen the
accused persons giving blows to his brother. He also denied having
stated to the police that he saw accused appellant Inderjeet Singh
inflicting knife blows. He also denied having stated to the police that
he ran to rescue his brother. He also stated that he was not able to see
the faces of the culprits because of the darkness and thus cannot say,
if, the accused persons are the same person, who killed his brother.
This alleged eye witness specifically denied having told the police that
the three accused had murdered his brother and he had identified
them as culprits."
[15] Mr. Acharjee, learned counsel appearing for the accused-
person has further relied upon a decision of the Apex Court in
paragraphs-14, 15 and 16 of Chunthuram v. State of Chhattishgarh
reported in (2020) 10 SCC 733, where it has been held thus:
"14. Next the unnatural conduct of PW4 will require some scrutiny.
The witness Bhagat Ram was known to the deceased and claimed to
have seen the assault on Laxman by Chunthuram and another
person. But curiously, he did not take any pro-active steps in the
matter to either report to the police or inform any of the family
members. Such conduct of the eyewitness is contrary to human
nature. In Amar Singh v. the State (NCT of Delhi), one of us, Justice
Krishna Murari made the following pertinent comments on the
unreliability of such eye-witness:-
"32. The conviction of the appellants rests on the oral testimony of
PW-1 who was produced as eye witness of the murder of the
deceased. Both the Learned Sessions Judge, as well as High Court
have placed reliance on the evidence of PW-1 and ordinarily this
Court could be reluctant to disturb the concurrent view but since
there 17 are inherent improbabilities in the prosecution story and the
conduct of eye witness is inconsistent with ordinary course of human
nature we do not think it would be safe to convict the appellants upon
the incorroborated testimony of the sole eye witness. Similar view has
been taken by a Three Judge Bench of this Court in the case of
Selvaraj V/s The State of Tamil Nadu. Wherein on an appreciation of
evidence the prosecution story was found highly improbable and
inconsistent of ordinary course of human nature concurrent findings
of guilt recorded by the two Courts below was set aside" 3 2020 SCC
Online SC 826 The witness here knew the victim, allegedly saw the
fatal assault on the victim and yet kept quiet about the incident. If
PW4 had the occasion to actually witness the assault, his reaction and
conduct does not match upto ordinary reaction of a person who knew
the deceased and his family. His testimony therefore deserves to be
discarded.
15. On the motive aspect, the land dispute was finally decided and it
was stated by Mahtoram PW-1 (father of the deceased) that Sildhar
was murdered when the said land dispute was still pending. If this be
the situation, without any further material to show any proximate
and immediate motive for the crime, it would be difficult to accept the
cited motive, to support the conviction.
16. We might also reiterate the well established principle in criminal
law which propagates that if two views are possible on the evidence
adduced in a case, one pointing to the guilt of the accused and the
other to their innocence, the view favourable to the accused should be
adopted."
[16] Mr. Acharjee, learned counsel appearing for the accused-
person has further relied upon a decision of the Apex Court in
paragraphs-14 and 15 of Upendra Pradhan v. State of Orissa, reported
in (2015) 11 SCC 124, where it has been observed thus:
"14. Taking the First question for consideration, we are of the view
that in case there are two views which can be culled out from the
perusal of evidence and application of law, the view which favours the
accused should be taken. It has been recognized as a human right by
this Court. In Narendra Singh and Another v. State of M.P., (2004) 10
SCC 699, this Court has recognized presumption of innocence as a
human right and has gone on to say that:
"30. It is now well settled that benefit of doubt belonged to the
accused. It is further trite that suspicion, however grave may be,
cannot take place of a proof. It is equally well settled that there is a
long distance between „may be‟ and „must be‟.
31. It is also well known that even in a case where a plea of alibi is
raised, the burden of proof remains on the prosecution. Presumption
of innocence is a human right. Such presumption gets stronger when
a judgment of acquittal is passed. This Court in a number of decisions
has set out the legal principle for reversing the judgment of acquittal
by a Higher Court (see Dhanna v. State of M.P., Mahabir Singh v.
State of Haryana and Shailendra Pratap v. State of U.P.) which had
not been adhered to by the High Court.
Xxx xxx xxx xxx xxx
33. We, thus, having regard to the post-mortem report, are of the
opinion that the cause of death of Bimla Bai although is shrouded in
mistery but benefit thereof must go to the appellants as in the event of
there being two possible views, the one supporting the accused should
be upheld."
(Emphasis Supplied)
15. The decision taken by this Court in the aforementioned case, has
been further reiterated in State of Rajasthan v. Raja Ram, (2003) 8
SCC 180, wherein this Court observed thus:
"Generally the order of acquittal shall not be interfered with because
the presumption of innocence of the accused is further strengthened
by acquittal. The golden thread which runs through the web of
administration of justice in criminal cases is that if two views are
possible on the evidence adduced in the case, one pointing to the guilt
of the accused and the other to his innocence, the view which is
favourable to the accused should be adopted. The paramount
consideration of the Court is to ensure that miscarriage of justice is
prevented. A miscarriage of justice which may arise from acquittal of
the guilty is no less than from the conviction of an innocent. In a case
where admissible evidence is ignored, a duty is cast upon the appellate
court to reappreciate the evidence in a case where the accused has
been acquitted, or the purpose of ascertaining as to whether any of
the accused committed any offence or not. (see Bhagwan Singh v.
State of M.P.) The principle to be followed by the appellate court
considering the appeal against the judgment of acquittal is to
interfere only when there are compelling and substantial reasons for
doing so. If the impugned judgment is clearly unreasonable, it is a
compelling reason for interference."
(Emphasis Supplied)
[17] PW-15, the wife of the deceased who happened to witness
the crime occurred as a first eye witness, noticed her husband in a pool of
blood and the accused being the elder brother was standing beside her
husband with a knife in his hand wearing sky blue shirt and ran away
after seeing PW-15 making hue and cry. PW-15 in her examination-in-
chief and cross-examination has not deviated from her evidence and even
as per the Indian Evidence Act, it is not being a question of number of
witnesses who support an issue but, even if a sole witness supports the
case of the prosecution, it is sufficient to take the cognizance of the same
and impose punishment. In the present case, PW-15, the wife of the
deceased-husband was the first person to attend him with bleeding
injuries who categorically stated to her that his elder brother, Gourang
Deb, respondent No.2 had injured him with knife and as a result, when he
had been shifted to the hospital for medication he succumbed to his
injuries.
[18] There is no reason to disbelieve the version of the PW-15,
since she stood on the said statement immediately when the crime had
taken place and she was on the same stand even when she entered into
the witness box before the Court below. In our opinion, it cannot be
treated as an afterthought or as a statement made out of vengeance
because of the fact that there is a land dispute pending between the
accused and the deceased.
[19] This Court reasonably presumes that since the crime has
taken place amongst the family members i.e. one brother killing another
brother, all the remaining family members though at the first instance felt
it as an illegal act, later on, having concerned for the family members,
they might have compromised amongst themselves and had turned
hostile and have not supported the case of the prosecution including the
Investigating Officer. This Court is making the said observation in view
of the contradictions and omissions made by the witnesses. But, on the
other hand, there was no reason to disbelieve the version of PW-15, wife
the deceased herein.
[20] Hence, taking her evidence into consideration, saying go bye
to the procedural aspect which was not followed and also considering the
evidence of the witnesses, which are ended in hostility, this Court feels it
a fit case to grant conviction to the accused-respondent No.2.
[A. Lodh, J]
[21] I am in complete agreement with the findings of my
esteemed brother (T. Amarnath Goud, J.) with the reasoning, legal
position and the conclusions drawn while reversing the judgment and
order of acquittal passed by the learned trial Judge. However, since it is
an appeal against acquittal, I think it would be apposite to have a re-look
to the legal position again. In this regard, I may profitably refer the
judgment passed in the case of Chandrappa & Ors. vs. State of
Karnataka, (2007) 4 SCC 415[SCC pp.421-32, paras 12 to 28 and 30 to
41], where the Hon‟ble Supreme Court had taken note of relevant
provisions of law and evolution of law to govern the principles to be
followed by Courts while reversing a judgment of acquittal. The Hon‟ble
Supreme Court had observed and held thus:
"12. In view of rival submissions of the parties, we think it proper to
consider and clarify the legal position first. Chapter XXIX (Sections 372-
394) of the Code of Criminal Procedure, 1973 (hereinafter referred to as
"the present Code") deals with appeals. Section 372 expressly declares
that no appeal shall lie from any judgment or order of a criminal court
except as provided by the Code or by any other law for the time being in
force. Section 373 provides for filing of appeals in certain cases. Section
374 allows appeals from convictions. Section 375 bars appeals in cases
where the accused pleads guilty. Likewise, no appeal is maintainable in
petty cases (Section 376). Section 377 permits appeals by the State for
enhancement of sentence. Section 378 confers power on the State to present
an appeal to the High Court from an order of acquittal. The said section is
material and may be quoted in extenso:
"378. Appeal in case of acquittal.--(1) Save as otherwise provided in
sub-section (2) and subject to the provisions of sub-sections (3) and (5), the
State Government may, in any case, direct the Public Prosecutor to present
an appeal to the High Court from an original or appellate order of
acquittal passed by any court other than a High Court, or an order of
acquittal passed by the Court of Session in revision.
(2) If such an order of acquittal is passed in any case in which the
offence has been investigated by the Delhi Special Police Establishment
constituted under the Delhi Special Police Establishment Act, 1946 (25 of
1946), or by any other agency empowered to make investigation into an
offence under any Central Act other than this Code, the Central
Government may also direct the Public Prosecutor to present an appeal,
subject to the provisions of sub-section (3), to the High Court from the
order of acquittal.
(3) No appeal under sub-section (1) or sub-section (2) shall be
entertained except with the leave of the High Court.
(4) If such an order of acquittal is passed in any case instituted upon
complaint and the High Court, on an application made to it by the
complainant in this behalf, grants special leave to appeal from the order of
acquittal, the complainant may present such an appeal to the High Court.
(5) No application under sub-section (4) for the grant of special leave
to appeal from an order of acquittal shall be entertained by the High Court
after the expiry of six months, where the complainant is a public servant,
and sixty days in every other case, computed from the date of that order of
acquittal.
(6) If, in any case, the application under sub-section (4) for the grant of
special leave to appeal from an order of acquittal is refused, no appeal
from that order of acquittal shall lie under sub-section (1) or under sub-
section (2)."
13. Whereas Sections 379-380 cover special cases of appeals, other
sections lay down procedure to be followed by appellate courts.
14. It may be stated that more or less similar provisions were found in
the Code of Criminal Procedure, 1898 (hereinafter referred to as "the old
Code") which came up for consideration before various High Courts,
Judicial Committee of the Privy Council as also before this Court. Since in
the present appeal, we have been called upon to decide the ambit and
scope of the power of an appellate court in an appeal against an order of
acquittal, we have confined ourselves to one aspect only i.e. an appeal
against an order of acquittal.
15. Bare reading of Section 378 of the present Code (appeal in case of
acquittal) quoted above, makes it clear that no restrictions have been
imposed by the legislature on the powers of the appellate court in dealing
with appeals against acquittal. When such an appeal is filed, the High
Court has full power to reappreciate, review and reconsider the evidence
at large, the material on which the order of acquittal is founded and to
reach its own conclusions on such evidence. Both questions of fact and of
law are open to determination by the High Court in an appeal against an
order of acquittal.
16. It cannot, however, be forgotten that in case of acquittal, there is a
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 should be presumed to be innocent unless
he is proved to be guilty by a competent court of law. Secondly, the accused
having secured an acquittal, the presumption of his innocence is certainly
not weakened but reinforced, reaffirmed and strengthened by the trial
court.
17. Though the above principles are well established, a different note
was struck in several decisions by various High Courts and even by this
Court. It is, therefore, appropriate if we consider some of the leading
decisions on the point.
18. The first decision was rendered by the Judicial Committee of the
Privy Council in Sheo Swarup v. R. Emperor [(1933-34) 61 IA 398 : AIR
1934 PC 227 (2)] . In Sheo Swarup [(1933-34) 61 IA 398 : AIR 1934 PC
227 (2)] the accused were acquitted by the trial court and the local
Government directed the Public Prosecutor to present an appeal to the
High Court from an order of acquittal under Section 417 of the old Code
(similar to Section 378 of the present Code). At the time of hearing of
appeal before the High Court, it was contended on behalf of the accused
that in an appeal from an order of acquittal, it was not open to the
appellate court to interfere with the findings of fact recorded by the trial
Judge unless such findings could not have been reached by him had there
not been some perversity or incompetence on his part. The High Court,
however, declined to accept the said view. It held that no condition was
imposed on the High Court in such appeal. It accordingly reviewed all the
evidence in the case and having formed an opinion of its weight and
reliability different from that of the trial Judge, recorded an order of
conviction. A petition was presented to His Majesty in Council for leave to
appeal on the ground that conflicting views had been expressed by the
High Courts in different parts of India upon the question whether in an
appeal from an order of acquittal, an appellate court had the power to
interfere with the findings of fact recorded by the trial Judge. Their
Lordships thought it fit to clarify the legal position and accordingly upon
the "humble advice of their Lordships", leave was granted by His Majesty.
The case was, thereafter, argued. The Committee considered the scheme
and interpreting Section 417 of the Code (old Code) observed that there
was no indication in the Code of any limitation or restriction on the High
Court in exercise of powers as an Appellate Tribunal. The Code also made
no distinction as regards powers of the High Court in dealing with an
appeal against acquittal and an appeal against conviction. Though several
authorities were cited revealing different views by the High Courts dealing
with an appeal from an order of acquittal, the Committee did not think it
proper to discuss all the cases.
19. Lord Russel summed up the legal position thus : (IA p. 404)
"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 or misconducted itself as to produce a
glaring miscarriage of justice, or has been tricked by the defence so as to
produce a similar result."
His Lordship, then proceeded to observe : (IA p. 404)
"Sections 417, 418 and 423 of the Code give to the High Court full
power to review at large 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. No limitation should be placed upon that
power, unless it be found expressly stated in the Code."
20. The Committee, however, cautioned appellate courts and stated :
(IA p. 404)
"But in exercising the power conferred by the Code and before
reaching its conclusions upon fact, the High Court should and will always
give proper weight and consideration to such matters as (1) the views of
the trial Judge as to the credibility of the witnesses; (2) the presumption of
innocence in favour of the accused, a presumption certainly not weakened
by the fact that he has been acquitted at his trial; (3) the right of the
accused to the benefit of any doubt; and (4) the slowness of an appellate
court in disturbing a finding of fact arrived at by a judge who had the
advantage of seeing the witnesses. To state this, however, is only to say that
the High Court in its conduct of the appeal should and will act in
accordance with rules and principles well known and recognised in the
administration of justice."
(emphasis supplied)
21. In Nur Mohd. v. Emperor [AIR 1945 PC 151 : 47 Cri LJ 1] the
Committee reiterated the above view in Sheo Swarup [(1933-34) 61 IA 398
: AIR 1934 PC 227 (2)] and held that in an appeal against acquittal, the
High Court has full powers to review and to reverse acquittal.
22. So far as this Court is concerned, probably the first decision on the
point was Prandas v. State [AIR 1954 SC 36 : 1954 Cri LJ 331] (though
the case was decided on 14-3-1950, it was reported only in 1954). In that
case, the accused was acquitted by the trial court. The Provincial
Government preferred an appeal which was allowed and the accused was
convicted for offences punishable under Sections 302 and 323 IPC. The
High Court, for convicting the accused, placed reliance on certain
eyewitnesses.
23. Upholding the decision of the High Court and following the
proposition of law in Sheo Swarup [(1933-34) 61 IA 398 : AIR 1934 PC
227 (2)] , a six-Judge Bench speaking through Fazl Ali, J. unanimously
stated : (Prandas case [AIR 1954 SC 36 : 1954 Cri LJ 331] , AIR p. 38,
para 6)
"6. It must be observed at the very outset that we cannot support the
view which has been expressed in several cases that the High Court has no
power under Section 417, Criminal Procedure Code, to reverse a judgment
of acquittal, unless the judgment is perverse or the subordinate court has in
some way or other misdirected itself so as to produce a miscarriage of
justice."
(emphasis supplied)
24. In Surajpal Singh v. State [AIR 1952 SC 52 : (1952) 3 SCR 193 :
1952 Cri LJ 331] a two-Judge Bench observed that it was well established
that in an appeal under Section 417 of the (old) Code, the High Court had
full power to review the evidence upon which the order of acquittal was
founded. But it was equally well settled that the presumption of innocence
of the accused was further reinforced by his acquittal by the trial court,
and the findings of the trial court which had the advantage of seeing the
witnesses and hearing their evidence could be reversed only for very
substantial and compelling reasons.
25. In Ajmer Singh v. State of Punjab [AIR 1953 SC 76 : (1953) 4 SCR
418 : 1953 Cri LJ 521] the accused was acquitted by the trial court but
was convicted by the High Court in an appeal against acquittal filed by the
State. The aggrieved accused approached this Court. It was contended by
him that there were "no compelling reasons" for setting aside the order of
acquittal and due and proper weight had not been given by the High Court
to the opinion of the trial court as regards the credibility of witnesses seen
and examined. It was also commented that the High Court committed an
error of law in observing that (AIR p. 78, para 6)
"when a strong „prima facie‟ case is made out against an accused
person it is his duty to explain the circumstances appearing in evidence
against him and he cannot take shelter behind the presumption of
innocence and cannot state that the law entitles him to keep his lips
sealed".
26. Upholding the contention, this Court said : (AIR p. 78, para 6)
"We think this criticism is well founded. After an order of acquittal has
been made the presumption of innocence is further reinforced by that
order, and that being so, the trial court's decision can be reversed not on
the ground that the accused had failed to explain the circumstances
appearing against him but only for very substantial and compelling
reasons."
(emphasis supplied)
27. In Atley v. State of U.P. [AIR 1955 SC 807 : 1955 Cri LJ 1653] this
Court said : (AIR pp. 809-10, para 5)
"In our opinion, it is not correct to say that unless the appellate court
in an appeal under Section 417, Criminal Procedure Code came to the
conclusion that the judgment of acquittal under appeal was perverse it
could not set aside that order.
It has been laid down by this Court that it is open to the High Court on
an appeal against an order of acquittal to review the entire evidence and to
come to its own conclusion, of course, keeping in view the well-established
rule that the presumption of innocence of the accused is not weakened but
strengthened by the judgment of acquittal passed by the trial court which
had the advantage of observing the demeanour of witnesses whose
evidence have been recorded in its presence.
It is also well settled that the court of appeal has as wide powers of
appreciation of evidence in an appeal against an order of acquittal as in
the case of an appeal against an order of conviction, subject to the riders
that the presumption of innocence with which the accused person starts in
the trial court continues even up to the appellate stage and that the
appellate court should attach due weight to the opinion of the trial court
which recorded the order of acquittal.
If the appellate court reviews the evidence, keeping those principles in
mind, and comes to a contrary conclusion, the judgment cannot be said to
have been vitiated."
(emphasis supplied)
28. In Aher Raja Khima v. State of Saurashtra [AIR 1956 SC 217 :
(1955) 2 SCR 1285] the accused was prosecuted under Sections 302 and
447 IPC. He was acquitted by the trial court but convicted by the High
Court. Dealing with the power of the High Court against an order of
acquittal, Bose, J. speaking for the majority (2 : 1) stated : (AIR p. 220,
para 1)
"It is, in our opinion, well settled that it is not enough for the High
Court to take a different view of the evidence; there must also be
substantial and compelling reasons for holding that the trial court was
wrong."
(emphasis supplied)
30. In Sanwat Singh v. State of Rajasthan [AIR 1961 SC 715 : (1961) 3
SCR 120 : (1961) 1 Cri LJ 766] a three-Judge Bench considered almost all
leading decisions on the point and observed that there was no difficulty in
applying the principles laid down by the Privy Council and accepted by the
Supreme Court. The Court, however, noted that appellate courts found
considerable difficulty in understanding the scope of the words
"substantial and compelling reasons" used in certain decisions. Subba
Rao, J. (as His Lordship then was) stated : (AIR p. 719, para 8)
"This Court obviously did not and could not add a condition to Section
417 of the Criminal Procedure Code. The words were intended to convey
the idea that an appellate court not only shall bear in mind the principles
laid down by the Privy Council but also must give its clear reasons for
coming to the conclusion that the order of acquittal was wrong."
31. The Court concluded : (AIR pp. 719-20, para 9)
"9. The foregoing discussion yields the following results : (1) an
appellate court has full power to review the evidence upon which the order
of acquittal is founded; (2) the principles laid down in Sheo Swarup
case [(1933-34) 61 IA 398 : AIR 1934 PC 227 (2)] afford a correct guide
for the appellate court's approach to a case in disposing of such an appeal;
and (3) the different phraseology used in the judgments of this Court, such
as, (i) „substantial and compelling reasons‟, (ii) „good and sufficiently
cogent reasons‟, and (iii) „strong reasons‟ are not intended to curtail the
undoubted power of an appellate court in an appeal against acquittal to
review the entire evidence and to come to its own conclusion; but in doing
so it should not only consider every matter on record having a bearing on
the questions of fact and the reasons given by the court below in support of
its order of acquittal in its arriving at a conclusion on those facts, but
should also express those reasons in its judgment, which lead it to hold that
the acquittal was not justified."
32. Again, in M.G. Agarwal v. State of Maharashtra [AIR 1963 SC 200
: (1963) 2 SCR 405] the point was raised before a Constitution Bench of
this Court. Taking note of earlier decisions, Gajendragadkar, J. (as His
Lordship then was) laid down the principle in the following words : (AIR p.
208, para 17)
"17. In some of the earlier decisions of this Court, however, in
emphasising the importance of adopting a cautious approach in dealing
with appeals against acquittals, it was observed that the presumption of
innocence is reinforced by the order of acquittal and so, „the findings of the
trial court which had the advantage of seeing the witnesses and hearing
their evidence can be reversed only for very substantial and compelling
reasons‟ : vide Surajpal Singh v. State [AIR 1952 SC 52 : (1952) 3 SCR
193 : 1952 Cri LJ 331] . Similarly in Ajmer Singh v. State of Punjab [AIR
1953 SC 76 : (1953) 4 SCR 418 : 1953 Cri LJ 521] it was observed that the
interference of the High Court in an appeal against the order of acquittal
would be justified only if there are „very substantial and compelling
reasons to do so‟. In some other decisions, it has been stated that an order
of acquittal can be reversed only for „good and sufficiently cogent reasons‟
or for „strong reasons‟. In appreciating the effect of these observations, it
must be remembered that these observations were not intended to lay down
a rigid or inflexible rule which should govern the decision of the High
Court in appeals against acquittals. They were not intended, and should
not be read to have intended to introduce an additional condition in clause
(a) of Section 423(1) of the Code. All that the said observations are
intended to emphasise is that the approach of the High Court in dealing
with an appeal against acquittal ought to be cautious because as Lord
Russell observed in Sheo Swarup [(1933-34) 61 IA 398 : AIR 1934 PC 227
(2)] the presumption of innocence in favour of the accused „is not certainly
weakened by the fact that he has been acquitted at his trial‟. Therefore, the
test suggested by the expression „substantial and compelling reasons‟
should not be construed as a formula which has to be rigidly applied in
every case. That is the effect of the recent decisions of this Court, for
instance, in Sanwat Singh v. State of Rajasthan [AIR 1961 SC 715 : (1961)
3 SCR 120 : (1961) 1 Cri LJ 766] and Harbans Singh v. State of
Punjab [AIR 1962 SC 439 : 1962 Supp (1) SCR 104 : (1962) 1 Cri LJ 479]
; and so, it is not necessary that before reversing a judgment of acquittal,
the High Court must necessarily characterise the findings recorded therein
as perverse."
(emphasis supplied)
33. Yet in another leading decision in Shivaji Sahabrao Bobade v. State
of Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033] this Court held
that in India, there is no jurisdictional limitation on the powers of appellate
court.
"In law there are no fetters on the plenary power of the appellate court
to review the whole evidence on which the order of acquittal is founded
and, indeed, it has a duty to scrutinise the probative material de novo,
informed, however, by the weighty thought that the rebuttable innocence
attributed to the accused having been converted into an acquittal the
homage our jurisprudence owes to individual liberty constrains the higher
court not to upset the holding without very convincing reasons and
comprehensive consideration." (SCC p. 799, para 5)
34. Putting emphasis on balance between importance of individual
liberty and
evil of acquitting guilty persons, Krishna Iyer, J. said : (SCC p. 799,
para 6)
"6. Even at this stage we may remind ourselves of a necessary social
perspective in criminal cases which suffers from insufficient forensic
appreciation. The dangers of exaggerated devotion to the rule of benefit of
doubt at the expense of social defence and to the soothing sentiment that all
acquittals are always good regardless of justice to the victim and the
community, demand especial emphasis in the contemporary context of
escalating crime and escape. The judicial instrument has a public
accountability. The cherished principles or golden thread of proof beyond
reasonable doubt which runs thro' the web of our law should not be
stretched morbidly to embrace every hunch, hesitancy and degree of doubt.
The excessive solicitude reflected in the attitude that a thousand guilty men
may go but one innocent martyr shall not suffer is a false dilemma. Only
reasonable doubts belong to the accused. Otherwise any practical system
of justice will then breakdown and lose credibility with the community. The
evil of acquitting a guilty person light-heartedly, as a learned author
(Glanville Williams in Proof of Guilt) has sapiently observed, goes much
beyond the simple fact that just one guilty person has gone unpunished. If
unmerited acquittals become general, they tend to lead to a cynical
disregard of the law, and this in turn leads to a public demand for harsher
legal presumptions against indicted „persons‟ and more severe punishment
of those who are found guilty. Thus, too frequent acquittals of the guilty
may lead to a ferocious penal law, eventually eroding the judicial
protection of the guiltless. For all these reasons it is true to say, with
Viscount Simon, that „a miscarriage of justice may arise from the acquittal
of the guilty no less than from the conviction of the innocent....‟ In short,
our jurisprudential enthusiasm for presumed innocence must be moderated
by the pragmatic need to make criminal justice potent and realistic. A
balance has to be struck between chasing chance possibilities as good
enough to set the delinquent free and chopping the logic of preponderant
probability to punish marginal innocents."
(emphasis supplied)
35. In K. Gopal Reddy v. State of A.P. [(1979) 1 SCC 355 : 1979 SCC
(Cri) 305 : AIR 1979 SC 387 : (1979) 2 SCR 363 : 1980 Cri LJ 812] the
Court was considering the power of the High Court against an order of
acquittal under Section 378 of the present Code. Chinnappa Reddy, J. after
considering the relevant decisions on the point stated : (SCC pp. 359-60,
para 9)
"9. The principles are now well settled. At one time it was thought that
an order of acquittal could be set aside for „substantial and compelling
reasons‟ only and courts used to launch on a search to discover those
„substantial and compelling reasons‟. However, the „formulae‟ of
„substantial and compelling reasons‟, „good and sufficiently cogent
reasons‟ and „strong reasons‟ and the search for them were abandoned as
a result of the pronouncement of this Court in Sanwat Singh v. State of
Rajasthan [AIR 1961 SC 715 : (1961) 3 SCR 120 : (1961) 1 Cri LJ 766] .
In Sanwat Singh case [AIR 1961 SC 715 : (1961) 3 SCR 120 : (1961) 1 Cri
LJ 766] this Court harked back to the principles enunciated by the Privy
Council in Sheo Swarup v. R. Emperor [(1933-34) 61 IA 398 : AIR 1934
PC 227 (2)] and reaffirmed those principles. After Sanwat Singh v. State of
Rajasthan [AIR 1961 SC 715 : (1961) 3 SCR 120 : (1961) 1 Cri LJ 766]
this Court has consistently recognised the right of the appellate court to
review the entire evidence and to come to its own conclusion bearing in
mind the considerations mentioned by the Privy Council in Sheo Swarup
case [AIR 1961 SC 715 : (1961) 3 SCR 120 : (1961) 1 Cri LJ 766] .
Occasionally phrases like „manifestly illegal‟, „grossly unjust‟, have been
used to describe the orders of acquittal which warrant interference. But,
such expressions have been used more as flourishes of language, to
emphasise the reluctance of the appellate court to interfere with an order
of acquittal than to curtail the power of the appellate court to review the
entire evidence and to come to its own conclusion. In some cases
(Ramaphupala Reddy v. State of A.P. [(1970) 3 SCC 474 : 1971 SCC (Cri)
80 : AIR 1971 SC 460] , Bhim Singh Rup Singh v. State of
Maharashtra [(1974) 3 SCC 762 : 1974 SCC (Cri) 238 : AIR 1974 SC 286]
), it has been said that to the principles laid down in Sanwat Singh
case [AIR 1961 SC 715 : (1961) 3 SCR 120 : (1961) 1 Cri LJ 766] may be
added the further principle that „if two reasonable conclusions can be
reached on the basis of the evidence on record, the appellate court should
not disturb the finding of the trial court‟. This, of course, is not a new
principle. It stems out of the fundamental principle of our criminal
jurisprudence that the accused is entitled to the benefit of any reasonable
doubt. If two reasonably probable and evenly balanced views of the
evidence are possible, one must necessarily concede the existence of a
reasonable doubt. But, fanciful and remote possibilities must be left out of
account. To entitle an accused person to the benefit of a doubt arising from
the possibility of a duality of views, the possible view in favour of the
accused must be as nearly reasonably probable as that against him. If the
preponderance of probability is all one way, a bare possibility of another
view will not entitle the accused to claim the benefit of any doubt. It is,
therefore, essential that any view of the evidence in favour of the accused
must be reasonable even as any doubt, the benefit of which an accused
person may claim, must be reasonable."
(emphasis supplied)
36. In Ramesh Babulal Doshi v. State of Gujarat [(1996) 9 SCC 225 :
1996 SCC (Cri) 972] this Court said : (SCC p. 229, para 7)
"While sitting in judgment over an acquittal the appellate court is first
required to seek an answer to the question whether the findings of the trial
court are palpably wrong, manifestly erroneous or demonstrably
unsustainable. If the appellate court answers the above question in the
negative the order of acquittal is not to be disturbed. Conversely, if the
appellate court holds, for reasons to be recorded, that the order of
acquittal cannot at all be sustained in view of any of the above infirmities it
can then--and then only--reappraise the evidence to arrive at its own
conclusions."
37. In Allarakha K. Mansuri v. State of Gujarat [(2002) 3 SCC 57 :
2002 SCC (Cri) 519] , referring to earlier decisions, the Court stated :
(SCC p. 63, para 7)
"7. The paramount consideration of the court should be to avoid
miscarriage of justice. A miscarriage of justice which may arise from the
acquittal of guilty is no less than from the conviction of an innocent. In a
case where the trial court has taken a view based upon conjectures and
hypothesis and not on the legal evidence, a duty is cast upon the High
Court to reappreciate the evidence in acquittal appeal for the purposes of
ascertaining as to whether the accused has committed any offence or not.
Probable view taken by the trial court which may not be disturbed in the
appeal is such a view which is based upon legal and admissible evidence.
Only because the accused has been acquitted by the trial court, cannot be
made a basis to urge that the High Court under all circumstances should
not disturb such a finding."
38. In Bhagwan Singh v. State of M.P. [(2002) 4 SCC 85 : 2002 SCC
(Cri) 736] the trial court acquitted the accused but the High Court
convicted them. Negativing the contention of the appellants that the High
Court could not have disturbed the findings of fact of the trial court even if
that view was not correct, this Court observed : (SCC pp. 89-90, para 7)
"7. We do not agree with the submissions of the learned counsel for the
appellants that under Section 378 of the Code of Criminal Procedure the
High Court could not disturb the finding of facts of the trial court even if it
found that the view taken by the trial court was not proper. On the basis of
the pronouncements of this Court, the settled position of law regarding the
powers of the High Court in an appeal against an order of acquittal is that
the Court has full powers to review the evidence upon which an order of
acquittal is based and generally it will not interfere with the order of
acquittal because by passing an order of acquittal the presumption of
innocence in favour of the accused is reinforced. The golden thread which
runs through the web of administration of justice in criminal case is that if
two views are possible on the evidence adduced in the case, one pointing to
the guilt of the accused and the other to his innocence, the view which is
favourable to the accused should be adopted. Such is not a jurisdiction
limitation on the appellate court but judge-made guidelines for
circumspection. The paramount consideration of the court is to ensure that
miscarriage of justice is avoided. A miscarriage of justice which may arise
from the acquittal of the guilty is no less than from the conviction of an
innocent. In a case where the trial court has taken a view ignoring the
admissible evidence, a duty is cast upon the High Court to reappreciate the
evidence in acquittal appeal for the purposes of ascertaining as to whether
all or any of the accused has committed any offence or not."
39. In Harijana Thirupala v. Public Prosecutor, High Court of
A.P. [(2002) 6 SCC 470 : 2002 SCC (Cri) 1370] this Court said : (SCC p.
476, para 12)
"12. Doubtless the High Court in appeal either against an order of
acquittal or conviction as a court of first appeal has full power to review
the evidence to reach its own independent conclusion. However, it will not
interfere with an order of acquittal lightly or merely because one other
view is possible, because with the passing of an order of acquittal
presumption of innocence in favour of the accused gets reinforced and
strengthened. The High Court would not be justified to interfere with order
of acquittal merely because it feels that sitting as a trial court it would have
proceeded to record a conviction; a duty is cast on the High Court while
reversing an order of acquittal to examine and discuss the reasons given by
the trial court to acquit the accused and then to dispel those reasons. If the
High Court fails to make such an exercise the judgment will suffer from
serious infirmity."
40. In Ramanand Yadav v. Prabhu Nath Jha [(2003) 12 SCC 606 :
2004 SCC (Cri) Supp 526] this Court observed : (SCC pp. 614-15, para
21)
"21. There is no embargo on the appellate court reviewing the evidence
upon which an order of acquittal is based. Generally, the order of acquittal
shall not be interfered with because the presumption of innocence of the
accused is further strengthened by acquittal. The golden thread which runs
through the web of administration of justice in criminal cases is that if two
views are possible on the evidence adduced in the case, one pointing to the
guilt of the accused and the other to his innocence, the view which is
favourable to the accused should be adopted. The paramount consideration
of the court is to ensure that miscarriage of justice is prevented. A
miscarriage of justice which may arise from acquittal of the guilty is no
less than from the conviction of an innocent. In a case where admissible
evidence is ignored, a duty is cast upon the appellate court to reappreciate
the evidence in a case where the accused has been acquitted, for the
purpose of ascertaining as to whether any of the accused committed any
offence or not."
41. Recently, in Kallu v. State of M.P. [(2006) 10 SCC 313 : (2006) 3
SCC (Cri) 546 : AIR 2006 SC 831] this Court stated : (SCC pp. 317-18,
para 8)
"8. While deciding an appeal against acquittal, the power of the
appellate court is no less than the power exercised while hearing appeals
against conviction. In both types of appeals, the power exists to review the
entire evidence. However, one significant difference is that an order of
acquittal will not be interfered with, by an appellate court, where the
judgment of the trial court is based on evidence and the view taken is
reasonable and plausible. It will not reverse the decision of the trial court
merely because a different view is possible. The appellate court will also
bear in mind that there is a presumption of innocence in favour of the
accused and the accused is entitled to get the benefit of any doubt. Further
if it decides to interfere, it should assign reasons for differing with the
decision of the trial court."
(emphasis supplied)"
[22] In the line of above decisions, the Hon‟ble Supreme Court in
Chandrappa(supra) had laid down the following general principles
regarding powers of the appellate court while dealing with an appeal
against an order of acquittal [SCC p.432, para 42]:
"42. From the above decisions, in our considered view, the following general
principles regarding powers of the appellate court while dealing with an appeal
against an order of acquittal emerge:
(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."
[23] Again, in the case of Perla Somasekhara Reddy & Ors. vs.
State of Andhra Pradesh, (2009) 16 SCC 98, Hon‟ble Supreme Court
after reiterating the aforesaid principles has observed thus:
"14. "22. A person has, no doubt, a profound right not to be convicted
of an offence which is not established by the evidential standard of proof
beyond reasonable doubt. Though this standard is a higher standard,
there is, however, no absolute standard. What degree of probability
amounts to „proof‟ is an exercise particular to each case. Referring to the
interdependence of evidence and the confirmation of one piece of
evidence by another, a learned author says [see The Mathematics of
Proof II : Glanville Williams, Criminal Law Review, 1979, by Sweet and
Maxwell, p. 340 (342)]:
„The simple multiplication rule does not apply if the separate pieces of
evidence are dependent. Two events are dependent when they tend to
occur together, and the evidence of such events may also be said to be
dependent. In a criminal case, different pieces of evidence directed to
establishing that the defendant did the prohibited act with the specified
state of mind are generally dependent. A junior may feel doubt whether to
credit an alleged confession, and doubt whether to infer guilt from the
fact that the defendant fled from justice. But since it is generally guilty
rather than innocent people who make confessions, and guilty rather than
innocent people who run away, the two doubts are not to be multiplied
together. The one piece of evidence may confirm the other.‟
23. Doubts would be called reasonable if they are free from a zest for
abstract speculation. Law cannot afford any favourite other than truth. To
constitute reasonable doubt, it must be free from an overemotional
response. Doubts must be actual and substantial doubts as to the guilt of
the accused persons arising from the evidence, or from the lack of it, as
opposed to mere vague apprehensions. A reasonable doubt is not an
imaginary, trivial or a merely possible doubt, but a fair doubt based upon
reason and common sense. It must grow out of the evidence in the case.
24. The concepts of probability, and the degrees of it, cannot
obviously be expressed in terms of units to be mathematically enumerated
as to how many of such units constitute proof beyond reasonable doubt.
There is an unmistakable subjective element in the evaluation of the
degrees of probability and the quantum of proof. Forensic probability
must, in the last analysis, rest on a robust common sense and, ultimately,
on the trained intuitions of the Judge. While the protection given by the
criminal process to the accused persons is not to be eroded, at the same
time, uninformed legitimisation of trivialities would make a mockery of
administration of criminal justice. This position was illuminatingly stated
by Venkatachaliah, J. (as His Lordship then was) in State of
U.P. v. Krishna Gopal [(1988) 4 SCC 302 : 1988 SCC (Cri) 928] ."
The above position was highlighted in Krishnan v. State [(2003) 7 SCC
56 : 2003 SCC (Cri) 1577] , at SCC p. 63, paras 22-24."
[24] Juxtaposing the principles enunciated here-in-above by the
Apex Court with the evidence of PW15, I am convinced that PW15, i.e.
the wife of the deceased can be termed as „sterling witness‟.
The quality of evidence let in by PW15, wife of the
deceased makes her a "sterling witness". To declare a „sterling witness‟,
his/her standard of evidence should be of a high quality and caliber and
must not suffer from any kind of blemishes. Furthermore, such evidence
should be consistent all along and there shall not be any material
variations on the relevant fact and issue. For more clarity and better
understanding, it would be apposite to refer the case of Rai Sandeep vs.
State(NCT of Delhi), (2012) 8 SCC 21 where the Apex Court had
defined „sterling witness‟ in the manner as under: [SCC p.29, para 22]
"22. In our considered opinion, the "sterling witness" should be of a
very high quality and caliber whose version should, therefore, be
unassailable. The court considering the version of such witness should be
in a position to accept it for its face value without any hesitation. To test
the quality of such a witness, the status of the witness would be
immaterial and what would be relevant is the truthfulness of the statement
made by such a witness. What would be more relevant would be the
consistency of the statement right from the starting point till the end,
namely, at the time when the witness makes the initial statement and
ultimately before the court. It should be natural and consistent with the
case of the prosecution qua the accused. There should not be any
prevarication in the version of such a witness. The witness should be in a
position to withstand the cross-examination of any length and howsoever
strenuous it may be and under no circumstance should give room for any
doubt as to the factum of the occurrence, the persons involved, as well as
the sequence of it. Such a version should have co-relation with each and
every one of other supporting material such as the recoveries made, the
weapons used, the manner of offence committed, the scientific evidence
and the expert opinion. The said version should consistently match with
the version of every other witness. It can even be stated that it should be
akin to the test applied in the case of circumstantial evidence where there
should not be any missing link in the chain of circumstances to hold the
accused guilty of the offence alleged against him. Only if the version of
such a witness qualifies the above test as well as all other such similar
tests to be applied, can it be held that such a witness can be called as a
"sterling witness" whose version can be accepted by the court without
any corroboration and based on which the guilty can be punished. To be
more precise, the version of the said witness on the core spectrum of the
crime should remain intact while all other attendant materials, namely,
oral, documentary and material objects should match the said version in
material particulars in order to enable the court trying the offence to rely
on the core version to sieve the other supporting materials for holding the
offender guilty of the charge alleged."
[emphasis supplied]
[25] I have meticulously scrutinized her previous statements
made under Section 161 of CrPC and her statements before the court. On
appreciation, I find that PW15 was found to be very consistent in her
statements right from the starting point till her deposition before the
Court. Before the Court, in her chief-examination she deposed that, "On
19.09.13 my husband had returned home in the evening from Kailashahar
after attending the court case. At around 6 in the evening he parked his
bike in the verandah and told me that he would visit the house of his
cousin brother Uttam Deb. I saw him till the room of the household deity.
After a few minutes I heard his shouts. I rushed to the gate with my
Hurricane and saw my husband lying on the ground. He was bleeding. He
told me that my elder brother in law Gouranga Deb had stabbed him with
a knife. Gouranga Deb was also standing thereby." Thereafter, she
deposed that her husband gradually started losing consciousness. She
narrated the incident to her brother, Sukharanjan Dey(PW27). The
hurricane was seized and on her identification it was marked as
Exbt.MO2. She further deposed that a knife was seized from their unused
septic tank and Darogababu told her that he recovered the knife pursuant
to the information received from the accused, Gouranga Deb. In cross-
examination, PW15 stated that she narrated the incident to her brother
who filed the FIR. Nothing material variations would be elicited from her
cross-examination by the defence.
[26] The learned Sessions Judge discarded the evidence of PW15
after making an observation that PW27, the brother of PW15 had
contradicted the version of her sister, PW15 on the core issue that while
PW15 deposed that while she rushed to the spot and found her deceased
husband bleeding he told her that her elder brother-in-law, Gouranga Deb
had stabbed him with a knife, but, PW27 stated in his cross-examination
that PW15 told her that her husband disclosed the fact that accused,
Gouranga Deb had caused his injuries on the way to hospital. According
to learned Sessions Judge, here the material contradiction is that
according to PW27, PW15 disclosed that her elder brother-in-law had
caused the injuries of her husband on the way to hospital, but, PW15
deposed that her husband told her that his elder brother had stabbed him
with a knife when she rushed to the gate where her husband was lying on
the ground. Therefore, learned Sessions Judge concluded that this is a
major contradiction between the brother and sister regarding the place
where the victim, Jahar Deb disclosed to his wife that he was injured by
the accused, Gouranga Deb. In my opinion, this finding as arrived at by
learned Sessions Judge suffers from perversity as because, in my opinion,
learned Sessions Judge has given undue importance to a very minor
discrepancy which does not in any way hits the core issue that before
death Jahar Deb, the husband of PW15 disclosed that his elder brother
had stabbed him with a knife. This version is the heart of entire episode
and this basic version has not been shaken by the defence.
[27] Furthermore, while dealing with the evidence of PW27, the
brother of PW15, the learned Sessions Judge has ignored the deposition
of PW27 that on 09.09.2013, in the evening, he got the information from
her sister(PW15) that her husband was killed by accused, Gouranga Deb,
the respondent No.2 herein and on receiving that information he went to
Kamalpur Hospital and found his dead body was lying on a table of the
hospital. He further deposed that her sister told him "that her husband
told her before his death that accused Gouranga Deb caused him injury
with a knife." This testimony is relevant under Section 6 of the Evidence
Act because it is the evidence of res gestae. In my opinion, it has to be
appreciated that immediately after the incident PW15 had informed the
killing of her husband by Gouranga Deb, the respondent No.2 and based
on that information PW27 went to Kamalpur hospital where he was again
told by her sister(PW15) that her husband told her before his death that
respondent No.2 had inflicted injury upon the husband of his sister with a
knife. As such, there is no reason not to admit this statement for the
reason that this statement forms a part of the same transaction, i.e. the
incident of murder of Jahar Deb, the deceased husband of PW15 with a
knife.
[28] It is settled proposition of law that the court is not supposed
to give undue importance to omissions, contradictions and discrepancies
which do not go to the heart of the matter, and shake the basic version of
the prosecution witness. Thus the court must read the evidence of a
witness as a whole, and consider the case in light of the entirety of the
circumstances, ignoring the minor discrepancies with respect to trivial
matters, which do not affect the core of the case of the prosecution. The
said discrepancies as mentioned above should not be taken into
consideration, as they cannot form grounds for rejecting the evidence on
record as a whole[Rohtash Kumar vs. State of Haryana, 2013 AIR SCW
3208].
[29] In view of the settled ratio, in my opinion, learned Sessions
Judge has committed serious error in law in giving undue importance to
the statement of PW27 that PW27 has stated in his evidence that his
sister(PW15) told that her husband disclosed the fact that „Gouranga Deb
had caused him injury on the way to the hospital‟, holding the said
statement as major discrepancy, which must be interfered with by this
Court. Learned Sessions Judge could not appreciate that one is required
to consider the evidence as a whole with the other evidence on record.
Mere one sentence here or there cannot be considered stand alone. The
principal fact and circumstance what is relevant here is that PW-27 stated
that her sister disclosed that before death her husband told her that his
elder brother, Gouranga Deb (the respondent No.2) had caused injuries
with knife.
[30] Learned Sessions Judge could not appreciate that one is
required to consider the evidence as a whole with the other evidence on
record. Mere one sentence here or there cannot be considered stand
alone. The principal fact and circumstance what is relevant here is that
PW27 stated that her sister disclosed before death that her husband told
her that his elder brother, Gouranga Deb(the respondent No.2) had
caused injuries with knife.
[31] Added to it, the learned Sessions Judge had committed grave
error on facts and law in ignoring the opinion of the Doctor(PW14), who
conducted the postmortem examination upon the body of the deceased-
husband of PW15. The Doctor (PW14) has specifically stated that the
injury sustained by the deceased could be caused by the knife, which was
shown to him by learned Addl. P.P. during his deposition before the
Court. There was an injury which might be caused by only chop.
Furthermore, the learned Sessions Judge has given undue importance to
the opinion of the Doctor(14) that chop wound could not be caused by
the knife as it was required heavier weapon to cause chop wound. The
learned Sessions Judge has blamed the investigating officer for not
recovering the weapon causing the chop wound and PW15 deposed that
her deceased husband disclosed that his elder brother, Gouranga Deb
caused his injuries with a knife. I do not find any cogent reason to discard
this evidence and there is no contradiction. The husband was attacked.
He might have seen the knife only and might not have noticed the heavier
weapon. But, the fact remains that the major injuries were caused by the
knife. The Doctor(PW14) found only one chop wound over the anterior
chest wall. The learned trial Judge while appreciating this evidence has
not considered the settled proposition of law that recovery of weapon
used in commission of offence is not a sine qua non for convicting an
accused [Rakesh & Anr. vs. State of Uttar Pradesh & Anr., (2021) 7 SCC
188 : Subhash Ch. Nama Das vs. State of Tripura, 2021 SCC OnLine Tri
130 (by a Division Bench of this Court)].
[32] In Subhash Ch. Nama Das(supra), I being the author of the
judgment had held that "recovery of weapon of offence is not a sine qua
non to return the finding of guilt against the accused when other
circumstances establish the complicity of the accused in the commission
of the crime[para 45].
[33] The Doctor(PW14) has specifically stated that the cause of
death was "due to hemorrhagic shock as a consequence of intra
abdominal bleeding due to injury to Liver, Kidney & Stomach." He has
further stated that "incised wound and stab would found on the body of
the deceased can be caused by the weapon which have been shown to me
by Ld. Addl. P.P." In the light of this statement of the doctor it can easily
be inferred that the fatal injuries were caused by the knife.
[34] Yet another aspect is that there is no reason to suspect the
recovery of knife from the septic tank. PW24 has specifically stated that
"in the house of the accused the sweeper first tried to recover one knife
from the old tank of the latrine with a bamboo". At that time, the accused
told them that the knife was thrown in the tank. He went inside the septic
tank wearing gloves and fetched one knife. Gouranga Deb, the
respondent No.2 herein had identified the said knife, consequent to which
it was seized by the investigating officer. The said evidence of PW24 has
been substantially corroborated by PW20, the Sweeper. He deposed that
he was asked by the police to recover a knife from the septic tank of the
accused, Gouranga Deb. He went to the house of Gouranga Deb where
Gouranga Deb was also present. He went inside the septic tank and
recovered a knife. He further deposed that he tried to recover the knife
with a bamboo attached to a magnet. PW20 has identified the
knife(Exbt.MO III).
[35] I would like to add one more aspect, which is as under:
PW15, the wife had rushed to the scene of occurrence first,
when she had seen the elder brother, Sri Gouranga Deb, the respondent
No.2 standing nearby. At that point of time, her deceased-husband
disclosed that his elder brother, the respondent No.2 herein had caused
those injuries with knife. This statement of the deceased-husband to his
wife(PW15) can well be treated as his „dying declaration‟ in terms of
Section 32 of the Indian Evidence Act.
Section 32 reads as under:
"32. Cases in which statement of relevant fact by person who is dead or
cannot be found, etc., is relevant.--Statements, written or verbal, of
relevant facts made by a person who is dead, or who cannot be found, or
who has become incapable of giving evidence, or whose attendance
cannot be procured without an amount of delay or expense which under
the circumstances of the case appears to the Court unreasonable, are
themselves relevant facts in the following cases:--
(1) When it relates to cause of death.--When the statement is
made by a person as to the cause of his death, or as to any of the
circumstances of the transaction which resulted in his death, in cases in
which the cause of that person‟s death comes into question.
Such statements are relevant whether the person who made
them was or was not, at the time when they were made, under expectation
of death, and whatever may be the nature of the proceeding in which the
cause of his death comes into question.
(2) **** **** ****
(3) **** **** ****.
(4). **** **** ****
(5) **** **** ****
(6) **** **** ****
(7) **** **** ****
(8) **** **** ****".
[36] Here, reference may be made to the celebrated judgment of
Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116
:AIR 1984 SC 162 to see as how Hon‟ble Supreme Court has interpreted
the tenets of Section 32 of Indian Evidence Act:
"21. Thus, from a review of the authorities mentioned above and the clear
language of Section 32(1) of the Evidence Act, the following propositions
emerge:-
Section 32 is an exception to the rule of hearsay and makes admissible the
statement of a person who dies, whether the death is a homicide or a
suicide, provided the statement relates to the cause of death, or exhibits
circumstances leading to death. In this respect, as indicated above, the
Indian Evidence Act, in view of the peculiar conditions of our society and
the diverse nature and character of our people, has thought it necessary
to widen the sphere of Section 32 to avoid injustice.
The test of proximity cannot be too literally construed and practically
reduced to a cut-and-dried formula of universal application so as to be
confined in a straitjacket. Distance of time would depend or vary with the
circumstances of each case. For instance, where death is a logical
culmination of a continuous drama long in process and is, as it were, a
finale of the story, the statement regarding each step directly connected
with the end of the drama would be admissible because the entire
statement would have to be read as an organic whole and not torn from
the context. Sometimes statements relevant to or furnishing an immediate
motive may also be admissible as being a part of the transaction of death.
It is manifest that all these statements come to light only after the death of
the deceased who speaks from death. For instance, where the death takes
place within a very short time of the marriage or the distance of time is
not spread over more than 3-4 months the statement may be admissible
under Section 32.
The second part of clause (1) of Section 32 is yet another exception to the
rule that in criminal law the evidence of a person who was not being
subjected to or given an opportunity of being cross-examined by the
accused, would be valueless because the place of cross- examination is
taken by the solemnity and sanctity of oath for the simple reason that a
person on the verge of death is not likely to make a false statement unless
there is strong evidence to show that the statement was secured either by
prompting or tutoring.
It may be important to note that Section 32 does not speak of homicide
alone but includes suicide also, hence all the circumstances which may be
relevant to prove a case of homicide would be equally relevant to prove a
case of suicide.
Where the main evidence consists of statement and letters written by the
deceased which are directly connected with or related to her death and
which reveal a tell-tale story, the said statement would clearly fall within
the four corners of Section 32 and, therefore, admissible. The distance of
time alone in such cases would not make the statement irrelevant.
(Emphasis added)."
[37] Following the aforesaid principle, the statement which was
made by the deceased-husband, and accordingly deposed by PW15 to
whom the said statement was made, would fall under Section 32 of the
Evidence Act relating to the cause of death and would be admissible in
evidence. Furthermore, the statement made by the deceased-husband to
his wife(PW15) has to be understood in right perspective regard being
had to the legal maxim "Nemo Moriturus Praesumitur Mentire"--a man
will not meet maker with a lie in his mouth.
[38] In the present case, the fact of enmity between the accused
and Jahar Deb has come to fore. PW15 has specifically stated in her
chief-examination that accused Gouranga Deb has filed a case for
granting probate regarding a land against her deceased husband, which
was pending at Kailashahar Court. She further deposed that on
19.09.2013 her husband had returned home in the evening after attending
the Court case. Noticeably, in her cross-examination, the defense did not
make any attempt to confront of her statement regarding probate case
pending at Kailashahar Court. The defense only put a suggestion that on
that fateful day her deceased husband did not visit Kailashahar in
connection with any case. The said fact of pending probate case is also
available in the deposition of PW29, the IO(Sri Pushdhan Rupini) when
deposed that during his investigation on 04.03.2014 at 9.00 am he
received an information letter from one Advocate Chiranjib
Bhattacharjee regarding the probate case. It is worth to mention that there
is no direct denial of the pending probate case. The defense only asked
the I.O. as to whether he mentioned the said fact in his charge-sheet, to
which he replied that he did not state it in the charge-sheet but submitted
the letter on the date of his examination-in-chief by way of firisti.
[39] In addition, what I discussed here-in-above, the
nonappearance of the accused after the death of his full-blooded deceased
brother is also relevant. It appears to be unnatural and unexpected that
when all the near relatives of the deceased had arrived at the scene of
occurrence, his disappearance from the scene of occurrence further
reinforces his complicity linking him to the crime. From the evidence of
PW-29 it transpires that the accused was arrested from an area within the
territorial jurisdiction of another police station and with the help of SPO.
[40] In view of the above analysis of facts and circumstances
coupled with the settled legal position, we hold that the judgment of
acquittal as returned by learned Sessions Judge cannot sustain and it has
to be interfered with for administration of justice. In the opinion of this
Court, the prosecution has been able to establish the charges levelled
against the accused, Gouranga Deb beyond reasonable doubt and the
respondent No.2, Gouranga Deb, the original accused of committing the
offence of murder of the husband of PW15, deserves to be convicted.
Accordingly, he has been convicted to suffer rigorous imprisonment for
life.
SENTENCE:
[T. Amarnath Goud, J]
Since all other witnesses have turned hostile being the
family members and the motive behind the said crime by the accused
against the deceased brother is the property dispute and there were no
earlier incidences for committing crime by the accused against the
deceased person and that too, on the day of incident, they both returned
from Kailashahar after attending legal proceedings. This Court is of the
view that it is a case of murder and liable for punishment under Section-
302 of IPC accordingly, the accused is sentenced to suffer rigorous
imprisonment for life.
[41] In view of above, the judgment and order of acquittal passed
by the learned Additional Sessions Judge, Dhalai Tripura Judicial
District, Kamalpur, dated 28.02.2019 in connection with case No.S.T. (T-
1) 01 of 2014 stands set aside and quashed and the accused is sentenced
with life imprisonment.
[42] With the above observations and direction, the instant appeal
stands allowed and disposed of. As a sequel, miscellaneous applications
pending, if any, shall stand closed. Send down the LCRs.
JUDGE JUDGE
A.Ghosh
