CENTRAL BUREAU OF INVESTIGATION versus SHYAM BIHARI & OTHERS on 17 July 2023

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[2023] 10 S.C.R.

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CENTRAL BUREAU OF INVESTIGATION

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SHYAM BIHARI & OTHERS

(Criminal Appeal No. 413 of 2013)

JULY 17, 2023

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[B. V. NAGARATHNA AND MANOJ MISRA, JJ. ]

Penal Code,1860 – ss. 302 and 34 – Murder case – Acquittalof three policeman – Correctness of – Prosecution case thatprosecution witnesses traveling with the victim, though on a separatescooter, at night in the light of the scooter saw three policemen onCthe road armed with weapons – Policemen fired at them, hitting thevictim who succumbed to the injuries and the prosecution witnessesmanaged to escape – Policemen charged of murder while patrollingu/s. 302/34 – However, acquittal by the trial court – Appealthereagainst, u/s. 378(3) – Dismissed by the High Court – On appeal,Dheld: Though judgment of the High Court is a cryptic one but thatby itself need not be a ground to set aside the order – There arerelevant record to assess the merit of the prosecution case – Incidentarose in the year 1987 and the appeal remained pending – Neitherof the prosecution witness could identify any of the three accused –They did not depose that the three policemen involved in the crimeEwere those who were facing trial – Trial court justified in discardingthe testimony of the eye-witness – Also no reliable evidence that theexchange of fire was with a view to kill – Moreover, the victim diedfrom a .12 bore gunshot which could not be ascribed to rifles issuedto the policemen – Circumstances ought to have formed a chain soFfar complete as to indicate that in all human probability it were thepersons facing trial and none else who committed the crime –However, the circumstances found proved do not constitute acomplete chain – Thus, not a fit case to interfere with the orderpassed by the High Court – Code of Criminal Procedure, 1973 – s.378(3).GCode of Criminal Procedure, 1973: s. 378(3) – Appeal againstacquittal – Power of the appellate court – Explained.

Dismissing the appeal, the Court

HELD: 1.1 No doubt the judgment and order of the HighCourt appears a bit cryptic but that by itself need not be a groundH

to set aside the order and remit the matter to the High Court,particularly, when there are relevant record to assess the meritof the prosecution case. More so, because the incident is of theyear 1987 and the appeal has remained pending since more thana decade. In such circumstances, if the matter is remitted to theHigh Court only to rewrite the judgment, it would be travesty ofjustice. Consequently, as the trial court has dealt with the matterat great length and has discussed each and every piece of evidenceon which the prosecution seeks to rely, it would be apposite toassess whether, by not granting leave to appeal against thejudgment of the trial court, there has been a miscarriage of justice.[Para 26][474-H; 475-A-C]

1.2 In an appeal against acquittal, the power of the appellatecourt to re-appreciate evidence and come to its own conclusionis not circumscribed by any limitation. But it is equally settledthat the appellate court must not interfere with an order of acquittalmerely because a contrary view is permissible, particularly, wherethe view taken by the trial court is a plausible view based onproper appreciation of evidence and is not vitiated by ignorance/misreading of relevant evidence on record. [Para 27][475-C-D]

1.3 In the instant case, the prosecution case rested on ocularaccount as well as on certain circumstances. The ocular accountis provided by PW-3, PW-6 and PW-15. PW-3 and PW-6 weretraveling with the deceased, though on a separate scooter. They,therefore, had the opportunity to witness the incident. Accordingto them, while they were traveling on their respective scooters,torch light was flashed at them by men in police uniform. As aresult, deceased’s scooter skidded. Thereafter, when gun shotswere fired they escaped and came to the village. On information,a large number of persons from the village arrived at the spot.Neither PW3 nor PW6 could identify any of the three accused.They did not depose that the three policemen involved in thecrime were those who were facing trial. Thus, there is no infirmity,much less perversity, in the view taken by the trial court that thetestimony of PW-3 and PW-6 is not of much help to the prosecutionqua the three accused facing trial. [Para 28][475-E-G]

1.4 With regard to the testimony of PW-15, detailed reasonshave been recorded by the trial court to hold him unreliable and AB

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Aunworthy of credit. Moreover, PW15’s presence is not confirmedby PW3 and PW6. Otherwise also, PW15’s conduct of remainingsilent for over a week creates a lingering doubt in the mind as towhether he is a witness set up on advise, particularly, when it isnoticed that his first statement was not to the investigating agencybut made on an affidavit prepared by a lawyer, who simultaneouslyBprepared three affidavits identically worded. The trial courtnoticed all these facts as also that PW-15 was lying when he statedthat he went alone to get the affidavit prepared. The trial courtalso noticed that all the three affidavits were prepared on stamppapers, consecutively numbered, bought from the same vendorCand the affidavits were sworn in quick succession giving rise to adefinite conclusion that they were prepared by an advocate. Thetrial court also noticed that the conduct of PW15 was a bit unusualin the sense that he made no disclosure to anyone including thefather of the deceased yet, he straightaway went to swear anddispatch an affidavit by post to a higher officer of the police evenDthough, by that time, the investigation had been transferred tothe CB-CID from the local police and, therefore, there was nothreat from the local police. In these circumstances, if the trialcourt discarded the testimony of PW-15, the same was justified.[Para 29][475-H; 476-A-D]

E1.5 Adverting to the proven circumstances, what transpiresis that the witnesses are consistent that there was a police actionon that fateful night. Assuming that it is true that in the nightthere was an exchange of fire between men in uniform andmembers of the public, but there is no reliable evidence that theFexchange of fire was with a view to kill. Moreover, the deceaseddid not die of a rifle bullet injury. Rather, he died from a .12 boregunshot which could not be ascribed to rifles issued to the accusedpersons. Therefore, even if empties of rifle cartridges relatableto service rifles issued to the accused were found at the spot,culpability of the accused persons in causing death of the deceasedGis not inferable. Further, there is no recovery of a .12 bore gunfrom any of the accused persons facing trial. Notably, after theincident, villagers congregated at the scene of crime. The policearrived at the spot and took the injured to the hospital. Accordingto the prosecution evidence, the accused persons were presentHat the spot during this period. Therefore, if they were really

involved they could have been identified by either PW3 or PW6,but there was no such event. Further, the continued presence ofthe accused at the spot is a circumstance which goes in favour ofthe accused, being a conduct that belies a guilty mind. Anothercircumstance which goes in favour of the accused is that, accordingto the prosecution’s own case, the accused persons, three innumber, had a rifle each with 50 rounds. Admittedly, some of theempty cartridges found at the spot, as per the ballistic expertreport, were not fired from the rifle issued to the accused. Thisis indicative of presence of some other rifle also. Whose rifle itwas, the prosecution evidence is silent. Moreover, if the accusedwere to use their rifle to fire shots why would they use a countrymade pistol to inflict injury to the deceased. [Para 30 & 31][476-E-H; 477-A-B]

1.6 The circumstance that the accused persons wererequired to patrol that area and had left the police station for thatend on that fateful night is a circumstance which is not conclusiveas to turn the tables on the accused, inasmuch as the patrollingarea covered two villages. It may be possible that the accusedarrived at the spot late, when the incident had already taken place,and to chase away the miscreants, fired shots from their servicerifles. Be that as it may, once the ocular account of PW-15 stooddiscarded, to clinch a conviction on the basis of circumstances,the circumstances ought to have formed a chain so far completeas to indicate that in all human probability it were the personsfacing trial and none else who committed the crime. Here thecircumstances found proved do not constitute a chain so farcomplete as to indicate that in all human probability it were theaccused persons and no one else who committed the crime. Insuch a situation, there was no option for the trial court but toextend the benefit of doubt to the accused. It has not been pointedout that the trial court ignored or misread any relevant evidence.[Para 32, 33][477-C-E]

1.7 It is not a fit case to interfere with the order passed bythe High Court and remit the matter only for the High Court torewrite the judgment as the same, would be an exercise in futility.[Para 34][477-F]

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ACRIMINAL APPELLATE JURISDICTION : Criminal AppealNo.413 of 2013.

From the Judgment and Order dated 26.07.2012 of the High Courtof Uttarakhand at Nainital in GA No.4 of 2012.

Vikramjit Banerjee, ASG, Sanjay Kumar Tyagi, Rajan KumarBChourasia, Shubhendu Anand, Tathagat Sharma, Nring ChamwiboZeliang, Arvind Kumar Sharma, Advs. for the Appellant.

Anil K. Sharma, Sanjeev Kumar, Praveen Chaturvedi, Advs. forthe Respondents.

CThe Judgment of the Court was delivered by MANOJ MISRA, J.

1. This appeal assails the judgment and order of the High Court ofUttarakhand at Nainital (in short, “the High Court”), dated 26.07.2012,in Government Appeal No.4 of 2022. By the said order, though the delayDin preferring the appeal against the judgment and order of acquittal dated13.12.2011 passed by the third Additional District & Sessions Judge/Special Judge (Prevention of Corruption Act), C.B.I., Dehradun (forshort “the trial court”) in C. No. RC-5/87-SIU.II was condoned, theapplication seeking leave to appeal under section 378 (3) of the Code ofCriminal Procedure, 1973 (in short, “the Code”) was rejected and inEconsequence the Government Appeal was dismissed.

Introductory Facts

Introductory Facts

2. In the night/late evening of 24.06.1987, one Raj Kumar Baliyan(in short, “the deceased”) was killed. A first information report (FIR)Fwas lodged by Pramod Kumar Tyagi (PW-6) alleging, inter-alia, thatwhile he and Sudeep (PW-3), on one Scooter, and Raj Kumar Balyan(the deceased) on another Scooter, were travelling from Muzaffarnagarto Meerapur to attend a marriage, near Bhatoda turn, at about 9.30 pm,in the light of the Scooter, they saw three policemen standing on theroad. One of them had a Danda (stick) whereas the other two wereGcarrying rifles. The person who had the Danda flashed a torch light onthem. As a result, they lost control of their respective scooters, whichskidded and fell. One of the policemen exhorted to shoot to kill. Inconsequence, shots were fired hitting the deceased, who collapsed atthe spot. PW-3 and PW-6, however, managed to escape to the village.HOn information, villagers arrived at the scene of crime and so did the police. In the presence of police the deceased was rushed to the hospitalbut he succumbed to his injuries on the way. Thereafter, the dead bodywas taken to the hospital and after leaving the body there, PW-6 lodgedthe FIR, which was registered as Case Crime No.48/87 at P.S. Sikhera.

3. Another version of the incident was lodged at the instance ofone Mahindra Singh on 25.06.1987, which gave rise to Case CrimeNo.48A/87. There it was alleged, inter-alia, that on 26.05.1987 a robberytook place in the village wherein one person died. As criminals wereregularly visiting the village since then, a constant vigil was maintainedby the villagers as well as the police which had been patrolling the area.It was alleged therein that while three police constables were patrollingthe village and people of the village were keeping a watch in the night of24.06.1987, at about 9.00 pm, a man came and raised an alarm that 5-6criminals were about to come to the village on motorcycles and scooters.On receiving this information, the villagers and the policemen becamealert. At about 9.30 pm, a motorcycle came and stopped a little ahead ofBhatoda turn. Thereafter, two scooters came at a fast speed. Whentorch lights were flashed and the scooters were signalled to stop, therider fired a shot with a view to kill the villagers and the policemen.However, one of the scooters skidded and the other stopped. The criminalshowever started running away while firing shots. As a result, there wasretaliatory fire by the police and the villagers. One of the criminals waschased and nabbed by the villagers. He was also beaten by them. Atthat time, from P.S. Sikhera, an Inspector arrived in an AmbassadorCar. He interrogated the criminal. Later, several villagers arrived andinformed that the person caught is Raj Kumar, Advocate. Thereafter,Raj Kumar was taken to the hospital. At the same time, the spot wassearched and two empty shells of cartridges were recovered from thespot.

4. The investigation of the aforesaid two cases was assigned toCB-CID and later, for further investigation, to Central Bureau ofInvestigation (CBI) upon which, CBI registered a case No.RC-5/87-SIU.II. After investigation, CBI submitted a charge-sheet against theaccused persons (the respondents herein) under Section 302 read withSection 34 of the Indian Penal Code, 1860 (in short, “I.P.C.”) Aftertaking cognizance on the police report, the Court of First AdditionalSessions Judge, Dehradun charged Anil Kumar, Shyam Bihari and ArshadAli (the respondents herein) for committing offence punishable under AB

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ASection 302 read with Section 32 I.P.C. The accused pleaded not guiltyand claimed trial.

5. During the trial, the prosecution examined 33 witnesses andproduced various documentary evidences with regard to GD entries,seizure memos, site plan, forensic reports, autopsy report, etc. VariousBmaterial exhibits such as articles seized during investigation wereproduced and exhibited during trial.

6. After closure of prosecution evidence, the incriminatingcircumstances appearing in the prosecution evidence were put to theaccused for recording their statement under section 313 of the Code. InCtheir statement, under section 313 of the Code, the accused denied theincriminating circumstances appearing against them and claimed thatthey have been falsely implicated and made scapegoat.

Nature of the Prosecution Evidence

7. The prosecution sought to bring home the charge against theDaforesaid three accused by leading evidence to the following effect: -

(i) On the date, time and place of the incident, the threeaccused were on a picket duty as reflected by the GDEntries made at the police station concerned;

(ii) The GD Entries reflected that they had departed from theEpolice station with a rifle and 50 cartridges each;

(iii) The ballistic expert report confirmed that some of the emptyrifle cartridges recovered from the spot were fired fromthe service rifles of the accused thereby confirming theirpresence at the spot;F

(iv) PW-3 and PW-6 narrated that the shots were fired bypolicemen who flashed torch light at the scooter riders;

(v) PW-15 (Shyam Singh) confirmed participation of the threeaccused in the crime and proved that on exhortation by theGother two accused, Anil Kumar took out a country madepistol and had fired a shot at the deceased;

(vi) The villagers who had arrived at the spot after the incidenthad noticed that the three accused along with others werepresent at the spot; H

(vii) Police set up a false cross version of the incident, namely,Case Crime No. 48A/87, which indicated that there was adeliberate attempt on the part of the police to savethemselves from the clutches of law.

Trial Court Findings

8. The trial court found the testimony of PW-3 and PW-6inconsequential because the two witnesses did not state that the policemeninvolved in the crime were the ones facing trial. Rather, they admittedthat they had not seen the accused before and that the accused werenot put for identification.

9. As regards eye-witness Shyam Singh (PW15), the trial courtfound him unreliable for the following reasons: (a) PW15 made no promptdisclosure of his knowledge about the incident and the culprits either tothe police or to the villagers, rather, after a lapse of several days, choseto swear an affidavit and dispatch it by post to a higher official of thepolice; (b) three affidavits, including that of PW15, making the samedisclosure in identical language, sworn on the same day, at more or lessthe same time, and prepared by the same lawyer, were received by thepolice after a few days; and (c) PW15 lied that he was alone when hewent to swear the affidavit.

10. Having discarded the eye witness account of PW-15 andfinding the eye witness accounts of PW-3 and PW-6 inconsequential toinculpate the accused, the trial court proceeded to address othercircumstances on which the prosecution relied. These were: (a) fewempty cartridge shells lifted from the spot were found to have been firedfrom the rifles issued to the accused; and (b) there was an attempt to setup a false narration of the incident vide Case Crime No.48A of 1987.

11. In respect of some of the empty cartridges matching withservice rifles of the accused, the trial court noticed that out of four .303cartridges recovered from the scene of crime, one was fired from therifle of accused Anil, one from the rifle of accused Shyam Bihari whereasthe remaining two cartridges were not fired from service rifles of any ofthe three accused persons. Thus, it was not clear from the prosecutionevidence as to from whose rifle the remaining two bullets were fired.This discrepancy, according to the trial court, rendered the prosecutionversion against the accused doubtful because there could be the hand ofsome other person also.

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A12. In addition to the above, the trial court noticed from the autopsyreport that the gun shot injury sustained by the deceased was not from arifle bullet but from a .12 bore weapon which was not recovered fromany of the accused persons. Hence, even if rifle bullets were found atthe spot, they were not the ones from which injuries were caused to thedeceased. As regards the cross version of the incident (i.e. Case CrimeBNo.48A/87), no adverse inference was drawn against the accused as itwas not at their behest.

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13. Apart from above, the trial court noticed that, according to theprosecution version, several persons (i.e. villagers including PW-3 andPW-6 and police personnel) had arrived at the spot and the three accusedCwere also present there, yet they were not identified. In thesecircumstances, it was concluded that if PW-3 and PW-6, who weretravelling on another scooter in close proximity to the deceased, hadrecognized the accused persons, they would have identified them at thescene of crime as those who killed the deceased, and country madeDpistols might have also been recovered.

14. After analysing the entire prosecution evidence in detail, thetrial court concluded that the prosecution had failed to prove that thosethree policemen in uniform, who attacked Raj Kumar Baliyan (thedeceased), were the persons facing trial.

E’High Courts observations

15. Having failed to succeed in the trial, the State filed a time-barred appeal along with a delay condonation application and anapplication seeking leave to appeal. The High Court by the impugnedorder allowed the delay condonation application but rejected theFapplication seeking leave to appeal and dismissed the appeal accordingly.

16. While rejecting the application seeking leave to appeal, theHigh Court noticed that the prosecution case rested on three eye-witnesses’ accounts. Eye-witnesses PW-3 and PW-6 could not identifythe policemen and in so far as PW-15 was concerned, he was found notGreliable. Moreover, the medical evidence indicated that the deceaseddied due to gun-shot injuries fired from a .12 bore weapon and not arifle, which was with the accused, hence, granting leave to appeal toformally hear the appeal would be an exercise in futility.

17. We have heard Shri Vikramjit Banerjee, learned AdditionalHSolicitor General, assisted by Shri Rajan Kumar Chaurasia, learned Advocate for the appellant; Shri Anil K. Sharma, learned Advocate forthe respondents; and have perused the record.

Submissions

18. The learned counsel for the appellants submitted that this is acase where it was proved beyond doubt that the deceased was shot bypersons who were wearing police uniform. On the night of the incident,the three accused, namely, Shyam Bihari, Anil Kumar Sharma and ArshadAli, all armed constables, were patrolling the area, as per evidence broughton record. Soon after the incident these constables were found presentat the spot. Hence, their presence at the scene of crime was confirmednot only by eye witnesses but also by circumstances including the factthat certain empty cartridges recovered from the spot were fired fromtheir service rifles. Thus, not only their presence was proved but anotherversion of the incident i.e. Case Crime No.48A of 1987, depicting policeaction, confirmed that death was a consequence of police action.Therefore, the burden was heavy on the accused to explain theseincriminating circumstances and in absence whereof, an adverseinference ought to have been drawn against the accused persons.

19. It was also argued that even if PW-3 and PW-6 could notidentify the accused persons, they corroborated the prosecution storywith regard to the manner in which the incident occurred and, therefore,their testimony could be used to corroborate the testimony of PW-15,who not only narrated the incident but could recognize and identify theaccused persons.

20. Thus, according to the learned counsel for the appellant, thetrial court’s verdict was perverse and rejection of the application seekingleave to appeal has resulted in grave miscarriage of justice. It has thereforebeen prayed that the appeal be allowed and the matter be remitted to theHigh Court to accord fresh consideration on merits.

21. Per contra, the learned counsel for the respondents submittedthat, firstly, PW-3 and PW-5, who were travelling with the deceased,have not been able to identify the accused as those who were involvedin the killing of the deceased; and, secondly, the deceased died of a gun-shot wound which could be ascribed to a .12 bore weapon, not a riflewhich was with the accused. Moreover, some of the empty cartridgeslifted from the spot did not match with the rifles of the three accusedthereby giving rise to a possibility that someone else was also present A

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Awith a rifle and had used it. In these circumstances, if the trial courtgave the benefit of doubt to the accused, the judgment and order of thetrial court cannot be held perverse as to warrant reversal in an appeal.

22. With regard to the testimony of PW-15, the learned counselfor the respondent submitted that PW-15 has been found not reliable forBmultiple reasons. Firstly, he did not make disclosure to anyone of havingwitnessed the incident even though the villagers had arrived andcongregated at the spot in sufficient numbers to instil confidence in anyperson to make a disclosure against any person regardless of his position.Secondly, instead of giving his statement to the investigating agency, thewitness got an affidavit prepared from a lawyer, who prepared not oneCbut three affidavits identically worded. One was of PW15 and the othertwo were of those two persons who could not appear as witnesses duringthe trial. This would indicate that those affidavits were prepared on legaladvice. Thirdly, PW15’s version that Anil Kumar took out a countrymade pistol to shoot the deceased appears improbable for two reasons,Dnamely, there was no proven motive to commit such an act and oncethey had already fired from their rifles they could easily have used thesame to kill the deceased by giving the incident a colour of an encounter.

23. In respect of the incriminating circumstances such as thepresence of the accused persons at the spot, use of service rifle to fireEshots and killing of the deceased by policemen, it was submitted thatthey by themselves are insufficient to constitute a chain so far completeas to indicate that in all human probability it were the accused and noone else who committed the crime. Rather, there existed circumstances,proven on record, such as the presence of few empty cartridges at thespot which were not fired from rifles issued to the three accused, whichFindicated the presence of some other person also and possibility of theincident occurring in some other manner than set out by the prosecution.

24. Highlighting all the above points, the learned counsel for therespondents submitted that this is not a case where the judgment andorder of the High Court be interfered with.G

Analysis

25. We have considered the rival submissions and have perusedthe record.

26. At the outset, we may observe that no doubt the judgmentHand order of the High Court appears a bit cryptic but that by itself need not be a ground for us to set aside the order and remit the matter to theHigh Court, particularly, when we have the relevant record to assess themerit of the prosecution case. More so, because the incident is of theyear 1987 and the appeal has remained pending since more than a decade.In such circumstances, if we remit the matter to the High Court only torewrite the judgment, it would be travesty of justice. Consequently, asthe trial court has dealt with the matter at great length and has discussedeach and every piece of evidence on which the prosecution seeks torely, it would be apposite for us to assess whether, by not granting leaveto appeal against the judgment of the trial court, there has been amiscarriage of justice.

27. It is trite law that in an appeal against acquittal, the power ofthe appellate court to reappreciate evidence and come to its ownconclusion is not circumscribed by any limitation. But it is equally settledthat the appellate court must not interfere with an order of acquittalmerely because a contrary view is permissible, particularly, where theview taken by the trial court is a plausible view based on properappreciation of evidence and is not vitiated by ignorance/misreading ofrelevant evidence on record.

28. In the instant case, the prosecution case rested on ocularaccount as well as on certain circumstances. The ocular account isprovided by PW-3, PW-6 and PW-15. PW-3 and PW-6 were travelingwith the deceased, though on a separate scooter. They, therefore, hadthe opportunity to witness the incident. According to them, while theywere traveling on their respective scooters, torch light was flashed atthem by men in police uniform. As a result, deceased’s scooter skidded.Thereafter, when gun shots were fired they escaped and came to thevillage. On information, a large number of persons from the village arrivedat the spot. What is important is that neither PW3 nor PW6 could identifyany of the three accused. They did not depose that the three policemeninvolved in the crime were those who were facing trial. Thus, there is noinfirmity, much less perversity, in the view taken by the trial court thatthe testimony of PW-3 and PW-6 is not of much help to the prosecutionqua the three accused facing trial.

29. With regard to the testimony of PW-15, detailed reasons havebeen recorded by the trial court to hold him unreliable and unworthy ofcredit. Moreover, PW15’s presence is not confirmed by PW3 and PW6.Otherwise also, PW15’s conduct of remaining silent for over a week AB

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Acreates a lingering doubt in our mind as to whether he is a witness set upon advise, particularly, when we notice that his first statement was notto the investigating agency but made on an affidavit prepared by a lawyer,who simultaneously prepared three affidavits identically worded. Thetrial court noticed all these facts as also that PW-15 was lying when hestated that he went alone to get the affidavit prepared. The trial courtBalso noticed that all the three affidavits were prepared on stamp papers,consecutively numbered, bought from the same vendor and the affidavitswere sworn in quick succession giving rise to a definite conclusion thatthey were prepared by an advocate. The trial court also noticed that theconduct of PW-15 was a bit unusual in the sense that he made noCdisclosure to anyone including the father of the deceased yet, hestraightaway went to swear and dispatch an affidavit by post to a higherofficer of the police even though, by that time, the investigation had beentransferred to the CB-CID from the local police and, therefore, therewas no threat from the local police. In these circumstances, if the trialcourt discarded the testimony of PW-15, in our view, the same wasDjustified.

30. Adverting to the proven circumstances, what transpires is thatthe witnesses are consistent that there was a police action on that fatefulnight. Assuming that it is true that in the night there was an exchange offire between men in uniform and members of the public, but there is noEreliable evidence that the exchange of fire was with a view to kill.Moreover, the deceased did not die of a rifle bullet injury. Rather, he diedfrom a .12 bore gun- shot which could not be ascribed to rifles issued tothe accused persons. Therefore, even if empties of rifle cartridgesrelatable to service rifles issued to the accused were found at the spot,Fculpability of the accused persons in causing death of the deceased isnot inferable. Further, there is no recovery of a .12 bore gun from any ofthe accused persons facing trial. Notably, after the incident, villagerscongregated at the scene of crime. The police arrived at the spot andtook the injured to the hospital. According to the prosecution evidence, the accused persons were present at the spot during this period.GTherefore, if they were really involved they could have been identifiedby either PW3 or PW6, but there was no such event. Further, the continuedpresence of the accused at the spot is a circumstance which goes infavour of the accused, being a conduct that belies a guilty mind.

31. Another circumstance which goes in favour of the accused isH

that, according to the prosecution’s own case, the accused persons, threein number, had a rifle each with 50 rounds. Admittedly, some of theempty cartridges found at the spot, as per the ballistic expert report,were not fired from the rifle issued to the accused. This is indicative ofpresence of some other rifle also. Whose rifle it was, the prosecutionevidence is silent. Moreover, if the accused were to use their rifle to fireshots why would they use a country made pistol to inflict injury to thedeceased.

32. The circumstance that the accused persons were required topatrol that area and had left the police station for that end on that fatefulnight is a circumstance which is not conclusive as to turn the tables onthe accused, inasmuch as the patrolling area covered two villages. Itmay be possible that the accused arrived at the spot late, when theincident had already taken place, and to chase away the miscreants,fired shots from their service rifles. Be that as it may, once the ocularaccount of PW-15 stood discarded, to clinch a conviction on the basis ofcircumstances, the circumstances ought to have formed a chain so farcomplete as to indicate that in all human probability it were the personsfacing trial and none else who committed the crime. Here thecircumstances found proved do not constitute a chain so far complete asto indicate that in all human probability it were the accused persons andno one else who committed the crime. In such a situation, there was nooption for the trial court but to extend the benefit of doubt to the accused.

33. At this stage, we may put on record that the learned ASGcould not point out that the Trial Court ignored or misread any relevantevidence.

34. For all the reasons as stated above, we do not find it to be a fitcase to interfere with the order passed by the High Court and remit thematter only for the High Court to rewrite the judgment as the same, inour view, would be an exercise in futility. The appeal is dismissed.

Nidhi Jain

Appeal dismissed.

(Assisted by : Tamana, LCRA)

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