RAJESH PRASAD versus THE STATE OF BIHAR AND ANR. ETC. on 7 January 2022

[2022] 3 S.C.R. 1046

SUPREME COURT REPORTS

[2022] 3 S.C.R.

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RAJESH PRASAD

v.

THE STATE OF BIHAR AND ANR. ETC.

(Criminal Appeal Nos. 111-113 of 2015)

BJANUARY 7, 2022

[L. NAGESWARA RAO, B. R. GAVAI ANDB. V. NAGARATHNA, JJ.]

Penal Code, 1860: ss. 302/34, 120B – Explosive SubstancesAct, 1908 – ss. 3, 4 – In the instant case, the accused-respondentCcommitted offence u/s 302 r/w 34 and 120B IPC by causing deathof father of appellant-informant, and other deceased victim by useof explosive substance (bomb) and thereby was also charged u/s 3/4 of the Explosive Substances Act, 1908 – On trial, the accusedwas convicted and along with the term of imprisonment was alsoDawarded death sentence – High Court acquitted him of all chargeson the ground that there were flaws in the investigation and also inthe evidence of the prosecution witnesses – While acquitting theaccused, the High Court directed the appellant to be tried for theoffence of perjury – Hence the instant appeal against setting asidethe conviction of the respondent and also against the initiation ofEthe proceeding for perjury – Held: Trial Court failed to appreciatethe evidence of PWs-1, 3, 4 and 7 in proper perspective and furtherfailed to recognize the fact that PW-7 (the appellant) did not at allsupport the case of the prosecution although he was the informantand hence, erroneously convicted the accused – However, havingFregard to the facts and circumstances of these cases, and bearingin mind that there were two deaths in the incident which was notproved beyond reasonable doubt, only the direction to trial court toinitiate proceedings of perjury against the appellant is set aside –Rest of the impugned judgment of acquittal is affirmed.

GCode of Criminal Procedure, 1973 – s. 378 – Power andScope – Appellate court has full powers to review and to reversethe acquittal – For the High Court to take a different view on theevidence there must also be substantial and compelling reasons forholding that the trial court was wrong – The High Court in dealingwith an appeal against the acquittal ought to be cautious becauseH

the presumption of the innocence in the favour of the accused isnot weakened by the fact that he has been acquitted at his trial butif the court holds otherwise then it should assign reasons for differingwith the decision of the acquittal.

Appeal – Criminal Appellate Jurisdiction of Supreme Court –Extent and scope in cases of appeal against acquittal – The exerciseof such power is rare in cases the order of the acquittal has beenconfirmed by the High Court – Such power can be exercised onlywhen the High Court’s conclusion is absolutely wrong, legallyerroneous and perverse keeping in mind the facts of the case.

Partly allowing the appeals, the Court

HELD: 1. It is only in rarest of rare cases, where the HighCourt, on an absolutely wrong process of reasoning and a legallyerroneous and perverse approach to the facts of the case, ignoringsome of the most vital facts, has acquitted the accused, that thesame may be reversed by this Court, exercising jurisdiction underArticle 136 of the Constitution. Such fetters on the right toentertain an appeal are prompted by the reluctance to expose aperson, who has been acquitted by a competent court of a criminalcharge, to the anxiety and tension of a further examination of thecase, even though it is held by a superior court. An appeal cannotbe entertained against an order of acquittal which has, afterrecording valid and weighty reasons, has arrived at anunassailable, logical conclusion which justifies acquittal. [Para30][1063-D-G]

2. The circumstances under which this Court may entertainan appeal against an order of acquittal and pass an order of conviction,may be summarised as follows:(i)Where the approach or reasoningof the High Court is perverse:(a) where incontrovertible evidencehas been rejected by the High Court based on suspicion andsurmises, which are rather unrealistic.(b) Where the intrinsicmerits of the testimony of relatives, living in the same house asthe victim, were discounted on the ground that they were‘interested’ witnesses. (c) Where testimony of witnesses had beendisbelieved by the High Court, on an unrealistic conjecture ofpersonal motive on the part of witnesses to implicate the accused,when in fact, the witnesses had no axe to grind in the said matter.

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[2022] 3 S.C.R.

A(d) Where dying declaration of the deceased victim was rejectedby the High Court on an irrelevant ground that they did not explainthe injury found on one of the persons present at the site ofoccurrence of the crime. (e) Where the High Court applied anunrealistic standard of ‘implicit proof’ rather than that of ‘proofbeyond reasonable doubt’ and therefore evaluated the evidenceBin a flawed manner. (f) Where the High Court rejectedcircumstantial evidence, based on an exaggerated and capricioustheory, which were beyond the plea of the accused or whereacquittal rests merely in exaggerated devotion to the rule ofbenefit of doubt in favour of the accused. (g) Where the HighCCourt acquitted the accused on the ground that he had noadequate motive to commit the offence, although, in the said case,there was strong direct evidence establishing the guilt of theaccused, thereby making it unnecessary on the part of theprosecution to establish ‘motive.’ (ii) Where acquittal would resultis gross miscarriage of justice (a) Where the findings of the HighDCourt, disconnecting the accused persons with the crime, werebased on a perfunctory consideration of evidence or based onextenuating circumstances which were purely based inimagination and fantasy. (b) Where the accused had been acquittedon ground of delay in conducting trial, which delay was attributableEnot to the tardiness or indifference of the prosecuting agencies,but to the conduct of the accused himself; or where accused hadbeen acquitted on ground of delay in conducting trial relating toan offence which is not of a trivial nature. [Para 30][1064-A-H;1065-A-F]

FState of U.P. v. Sahai AIR 1981 SC 1442; Arunachalamv. Sadhananthan AIR 1979 (SC) 1284 : [1979] 3 SCR482; State of Haryana v. Lakhbir Singh (1990) CrLJ2274 (SC); State of Rajasthan v. Sukhpal Singh, AIR1984 SC 207 : [1983] 2 SCR 53; State of UP v. Shanker,AIR 1981 SC 879; State of UP v. Hakim Singh AIRG1980 SC 184; State of UP v. Ranjha Ram, AIR 1986SC 1959; State of Maharashtra v. Champalal PunjajiShah, AIR 1981 SC 1675; Gurbachan v. SatyapalSingh, AIR 1990 SC 209 : 1989 (1) Suppl SCR 292;State of AP v. Bogam Chandraiah, AIR 1986 SC 1899; H

State of UP v. Pheru Singh, AIR 1989 SC 1205 andState of Uttar Pradesh v. Pussu 1983 AIR 867 (SC) :[1983] 3 SCR 294 - relied on.

3. The High Court also noted flaws in the investigation ofthe case and in the evidence of the prosecution witnesses whichare culled out as under: (i) PW-7 said that PW-4 drew up thewritten report while PW-4 denied the same. (ii) While PW-1 andPW-3 were related to the deceased and signed the seizure listimmediately after the occurrence, yet PW-3 had stated that hewas not aware of the other signatory to the seizure list. (iii) Thestatement of PW-1, who was a witness to the seizure list as wellas an eye-witness , was recorded by the police one and half monthslater with no explanation either by the witness or by the police.(iv) Similarly, statement of PW-4 who is an eyewitness and a witnessto the inquest report of the deceased and who is stated to havedrawn up the written report given to the police, was recorded bythe police after two months and twenty days. The High Court hasnoted that there is no explanation for the delay, though he couldbe presumed to be present at the Police Station when the writtenreport was handed over to the Police. (v) PW-2, the shop ownerof the PCO booth adjoining the betel shop of the deceased, wasalso allegedly injured during the occurrence but there is no injuryreport. (vi) While the prosecution witnesses alleged throwing ofthree or more bombs, the Investigating Officer stated that hefound signs only of two explosions; first one being at the betelshop of the deceased and the second one near M/s AdityaElectronics, located 40-45 yards north of the site of the firstexplosion. [Para 52][1077-C-H; 1078-A-C]

4. The Fast Track Court has failed to appreciate theevidence of PWs-1, 3, 4 and 7 in their proper perspective andhas further failed to recognise the fact that PW-7/the appellantherein did not at all support the case of the prosecution althoughhe was the informant and hence, erroneously convicted theaccused and sentenced two of them with death penalty and thethird accused with imprisonment for life. The High Court was,therefore, justified in reversing the judgment and order ofconviction passed by the Fast-Track Court. Further, the High A

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ACourt stated that this is a fit case for initiating proceedings ofperjury against the appellant. No doubt, the appellant who wasthe informant did not at all support the case of the prosecutionduring trial and as a result, the High Court acquitted the accused.However, having regard to the facts and circumstances of thesecases and bearing in mind that there were two deaths in theBincident that occurred on 10th March, 2005 which has not beenproved beyond reasonable doubt, the portion of the impugnedjudgment and order directing the trial court to initiate proceedingsof perjury against the appellant is set aside. [Paras 54, 57,58][1080-A-B, D-F]CAtley vs. State of U.P. AIR 1955 SC 807; Sanwat Singhv. State of Rajasthan AIR 1961 SC 715 : [1961] 3 SCR120; Aher Raja Khima v. State of Saurashtra AIR 1956SC 217 : [1955] 2 SCR 1285; M.G. Agarwal v. State ofMaharashtra, AIR 1963 SC 200 : [1963] 2 SCR 405;DShivaji Sahabrao Bobade v. State of Maharashtra(1973) 2 SCC 793 : [1974] 1 SCR 489; Ramesh BabulalDoshi v. State of Gujarat (1996) 9 SCC 225 : [1996] 2Suppl. SCR 265; Ajit Savant Majagvai v. State ofKarnataka (1997) 7 SCC 110 : [1997] 3 Suppl. SCR444; Ramesh Babulal Doshi v. State of Gujarat, (1996)E9 SCC 225 : [1996] 2 Suppl. SCR 265; Chandrappa &Ors. v. State of Karnataka, (2007) 4 SCC 415 : [2007]2 SCR 630; Nepal Singh v. State of Haryana (2009) 12SCC 351 : [2009] 6 SCR 982 – relied on.

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNos. 111-113 of 2015.

From the Judgment and Order dated 05.08.2009 of the High Courtof Judicature at Patna in Criminal Appeal (DB) Nos.714, 747 and 814 of2008.

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Ms. Prerna Singh, T. Mahipal, Advs. for the Appellant.

Saket Singh, Mrs. Niranjana Singh, Ranjan Mukherjee, Advs. forthe Respondents.

1052SUPREME COURT REPORTS

AThe Judgment of the Court was delivered byNAGARATHNA J.

1. These appeals have been filed by the appellant - informant(PW-7 Rajesh Prasad) assailing the judgment and order dated 5[th] August,2009 passed by the High Court of Judicature at Patna in Criminal AppealBNos.714, 747 and 814 of 2008 by which the judgment of conviction dated26[th] June, 2008 and order of sentence dated 30[th] June, 2008 passed bythe Additional District & Sessions Judge, Fast Track Court-V, Munger,has been set aside by allowing the aforesaid appeals and by accordinglyanswering the Death Reference No.13/2008 and consequently acquittingCall the accused.

2. The Court of Additional District & Sessions Judge, Fast TrackCourt-V, Munger, (hereinafter referred to as the ‘Fast Track Court’)vide its judgment dated 26[th ]June, 2008 convicted the respondents hereinviz., Upendra Ram, Mahendra Ram and Munna Ram. By order datedD30[th] June, 2021, the Fast Track Court sentenced Upendra Ram to undergoimprisonment for life with fine of Rs.5000/- and in default of payment offine he was further to undergo rigorous imprisonment for one year forthe offence under section 302/34 read with section 120B of the IndianPenal Code (for short, the ‘IPC’) and also sentenced to undergo rigorousimprisonment for one year for offence under section 504 of IPC andEfurther sentenced to undergo rigorous imprisonment for ten years eachfor the offence under section 3/4 of the Explosive Substances Act, 1908and ordered that the sentences run concurrently. The Fast Track Courtsentenced the accused viz., Munna Ram and Mahendra Ram to deathunder sections 302/34 read with section 120B of IPC and sections 3/4 ofFExplosive Substances Act, 1908, subject to confirmation by the HighCourt. The Fast Track Court however acquitted the other accused viz.,Fantus Mandal, Dhappu Ram and Chandrabhanu Prasad.

3. It is the case of the prosecution that on Thursday, 10[th] March,2005, at about 5.00 pm, accused Mahendra Ram, Upendra Ram, MunnaGRam, Dhappu Ram, all being sons of Kishori Ram and ChandrabhanuPrasad, with two other unknown persons proceeded towards theinformant viz., Rajesh Prasad (PW-7) and protested that as the informanthad opposed their illegal activities, his entire family would be blown offby a bomb. Accused Munna Ram threw a bomb at the informant’s fatherChhote Lal Mahto who was sitting in his betel (pan) shop. The rearHportion of his father’s head was blown off leading to his death. Accused Mahendra Ram threw another bomb against O.P. Verma and as a resultthereof, his head was blown away and he died on the spot. Further,Upendra Ram hurled another bomb which missed injuring anyone elseand exploded on the road. Then accused Chandrabhanu and Dappu Ramstated that they would proceed from there as their job had been completedand they tried to flee from the spot, but the furious public caught hold ofan unknown person and assaulted him as a result of which he wasseriously injured and he died. The accused, while fleeing away, threatenedthat their action was a result of opposition by the informant against theillicit sale of liquor by them and if anyone again obstructed their business,they would face similar consequences. Accused-Chandrabhanu Prasadhelped the accused-Munna Ram to flee from the spot.

4. The informant had further stated that he was objecting to theillegal sale of liquor by the accused and on account of enmity and inpursuance of their common intention and object, they had hurled bombsand killed the father of the informant as well as others.

5. On receipt of the said information, a case was registered atKotawali PS being Case No.136/2005 dated 10[th]March, 2005 undersections 302/34, 120B of IPC and section 3/4 of the Explosive SubstancesAct, 1908 (hereinafter referred to as the ‘Act’) against the accused.The police investigated the case and submitted the chargesheet dated7[th]June, 2005 against the accused before the Court of Chief JudicialMagistrate, Munger, keeping investigation pending with regard to theother charges for offences under sections 302, 120B, 504, 225 of IPCand section 3/4 of the Act. On 8[th] June, 2005, the Chief JudicialMagistrate, Munger, took cognizance of the alleged offences against theaccused and committed the case to the Court of Sessions after complyingwith the provision of section 207 of the Code of Criminal Procedure (forshort, the ‘Cr.PC’) vide order dated 17[th] June, 2005.

6. The case was transferred to the Court of Additional DistrictJudge-I, Munger and later on, to the Fast Track Court on 9[th] December,2005. Thereafter, the charge for the concerned offences was read overand explained to the accused in Hindi to which they pleaded not guiltyand claimed to be tried.

7. The prosecution examined altogether ten witnesses and tooknote of Material Objects (MOs). Thereafter, statements of the accusedunder section 313 Cr.PC were recorded. All the accused denied thealleged occurrence and submitted that they were innocent and had been A

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Afalsely implicated. They contended that there were dues in respect ofliquor taken by Ashok Yadav from the informant who was running anillegal liquor shop. The said dues were demanded from Ashok Yadav forwhich there was a scuffle between them and the family of the informantassaulted Ashok Yadav. As a result, some unknown persons becamefurious and hurled bombs and caused the alleged occurrence. That theBassociates of the informant had looted the tea shop of accused DhappuRam and that the informant had falsely implicated the accused.

8. We have heard Ms. Prerna Singh, learned counsel for theappellant; Sri Saket Singh, learned counsel for the State and Sri RanjanMukherjee, learned counsel for the respondents-accused and perusedCthe material on record.

9. Appellant’s counsel submitted that the High Court was not rightin setting aside the judgment of conviction and sentence passed by theFast-Track Court, thereby acquitting the accused. She drew our attentionto the evidence of PWs 3, 4, 5, 8, 9 and 10 and contended that the sameDwould clearly establish the guilt of the accused beyond reasonable doubt.However, the High Court has not appreciated the case of the appellantherein in its proper perspective and has set aside the judgment of theFast-Track Court. The appellant-informant PW-7 who is one of the sonsof the deceased Chhote Lal Mahto had clearly stated in the complaintEand also in his deposition about the culpability of the accused which hasnot been properly appreciated by the High Court.

10. While drawing our attention to the evidence on record, learnedcounsel for the appellant submitted that the High Court has arrived atincorrect conclusions and thereby reversing the judgment of the Fast-Track Court.F

11. Learned counsel for the appellant further contended that whileacquitting the accused, the High Court has directed that proceedings ofperjury be initiated against the appellant herein which was whollyunnecessary having regard to the fact that the Fast Track Court hadGaccepted the case of the prosecution and on the basis of the evidence ofthe appellant herein as well as other eyewitnesses had convicted theaccused.

12. Learned counsel for the appellant finally contended that theimpugned judgment of acquittal may be set aside and the judgment ofthe Fast Track Court be restored as the accused have committed seriousH

offences under section 302/34 read with section 120B of IPC as well asother sections resulting in death of two persons, one being the father ofthe appellant as well as another, on account of the bombs hurled by theaccused against the deceased. She submitted that the third bomb whichwas hurled by an accused missed injuring any person but that would notin any way lead to his acquittal.

13. Per contra, learned counsel appearing for the respondents-accused supported the judgment of the High Court and contended thatthe High Court has rightly perceived and assessed the evidence on recordand as a result reversed the erroneous judgment of the Fast-Track Court.It was submitted that the Fast-Track Court failed to note that the evidenceon record did not prove the case of the prosecution beyond reasonabledoubt vis-à-vis the accused and despite that death penalty had beenimposed on two of the accused and life imprisonment on another accusedwhich has been rightly reversed by the High Court by a reasonedjudgment. Therefore, the impugned judgment would not call for anyinterference at the hands of this Court as there is no merit in theseappeals. Hence, the appeals may be dismissed.

14. Having heard the learned counsel appearing for the respectiveparties, the following points would arise for our consideration:

(a) Whether the High Court was justified in reversing thejudgment of conviction and sentence awarded by the Fast-Track Court, thereby acquitting all the accused?

(b) Whether the judgment of the High Court calls for anyinterference or modification by this Court?

(c) What order?

15. The Fast-Track Court considered the case of the prosecutionbeing that on 10[th ]March, 2005 at about 5.00 pm, the accused came tothe informant and stated that since the informant and his family wereobjecting to his illegal sale of country made liquor, he along with hisfamily would be eliminated. Then, accused Munna Ram hurled a bombthat he was holding in his hand and the father of the informant, ChhoteLal Mahto, sitting at the betel shop died in the blast. Second bomb washurled by accused Mahendra Ram causing the death of a pedestriannamed O.P. Verma and the third bomb was thrown by accused UpendraRam, which exploded on the road. The accused then fled from the spot.That the offences were committed by the accused as a result of objection A

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Araised by the deceased Chhote Lal Mahto and his son PW-7 RajeshPrasad-informant, appellant herein, against the illegal liquor business ofthe accused.

16. The Fast-Track Court also noted that the defence was unableto substantiate their case that the tea shop of accused Dhappu Ram hadBbeen looted by the informant and his associates. They further stated thatthere were disputes in respect of payment of prices of liquor by AshokYadav and as a result the latter and his associates had exploded thebombs.

17. The versions of PWs 1, 2, 3 and 4 who were eyewitnesses asCwell as that of PW-7 i.e. the informant were accepted by the Fast TrackCourt as being consistent with each other as their ocular testimony provedthe prosecution case beyond any reasonable doubt. Accordingly, threeof the accused were convicted and sentenced as noted above.

18. The Fast Track Court on considering the evidence on recordDheld as under and came to the following conclusion:

(i) That PW-1, PW-3, PW-4 and PW-7 are related to eachother, they being the son-in-law, cousin and sons of thedeceased, Chhote Lal Mahto respectively. PW-2 is theshopkeeper of the PCO booth which is the shop adjoiningEthe betel shop of the informant. PW-2 was also injured by asplinter of the bomb which was hurled on the deceasedChhote Lal Mahto who was in his betel shop. PW-8 alsowitnessed the occurrence. As such, PW-2 and PW-8 areindependent witnesses. PW-5 is the doctor who performedthe post-mortem examination of the deceased and PWs-9Fand 10 are the Investigating Officers (IOs) of the case.

(ii) That totally three bombs were hurled resulting in the deathof Chhotey Lal Mahto and another person and the thirdbomb exploded on the road. As a result, the public becamefurious and caught hold of an unknown person and assaultedGhim, which resulted in his death. It had come in the evidencethat the said person was Ashok Yadav.

(iii) That the name of Fantus alias Udai Prakash Mandal hadnot been found in the FIR and the witnesses had not testifiedagainst his involvement in the occurrence nor has there beenHany overt act alleged against him.

(iv) No overt act had been alleged against Dhappu Ram andAChandrabhanu Prasad.

(v) Consequently, Fantus Mandal, Dhappu Ram andChandrabhanu Prasad were not found guilty of any offencesalleged and they were acquitted.

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(vi) Considering the evidence on record, it was found thatUpendra Ram, Munna Ram and Mahendra Ram were guiltyand they were convicted and sentenced as stated above bythe Fast Track Court.

19. In the appeals filed by the accused and in the Death ReferenceNo.13/2008, the High Court, on considering the submissions made onbehalf of the accused as well as the State, noted at the outset as under:

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“It is trite law that acquittal of a co-accused cannot simpliciter bea ground for acquittal of other accused. There may be factorsdistinguishing the two cases. Alternately, an erroneous acquittaland absence of any challenge to the same cannot be a ground todemand similar treatment by others. Likewise, the testimony ofan interested witness cannot be discarded on that ground alone. Itwould only require the Court to be more cautious and scrutinizethe evidence carefully. Evidence, otherwise cogent and convincingcannot be rejected on the ground that there was no independentwitness, though the occurrence had taken place on a busy road.But, there may be circumstances where the witnesses areinterested and the manner of occurrence as described requirescorroboration by independent witness also. Ultimately, therefore,it shall all depend on the facts and circumstances of the case. Ithas also to be kept in mind that it shall be those close to thedeceased, who shall be most keen that the real culprits be booked.”

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With the aforesaid observations, the High Court set aside thejudgment of conviction of the accused who were convicted by the Fast-Track Court as well as sentence imposed upon them and accordingly,allowed the appeals by acquitting all the accused.

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20. Before proceeding further, it would be useful to review theapproach to be adopted while deciding an appeal against acquittal by thetrial court as well as by the High Court. Section 378 of the Cr.P.C dealswith appeals in case of acquittal. In one of the earliest cases on the H

Apowers of the High Court in dealing with an appeal against an order ofacquittal the Judicial Committee of the Privy Council in Sheo Swarupvs. R. Emperor, AIR 1934 PC 227(2) considered the provisions relatingto the power of an appellate court in dealing with an appeal against anorder of acquittal and observed as under:

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B“16. It cannot, however, be forgotten that in case of acquittal,there is a double presumption in favour of the accused. Firstly, thepresumption of innocence is available to him under the fundamentalprinciple of criminal jurisprudence that every person should bepresumed to be innocent unless he is proved to be guilty by aCcompetent court of law. Secondly, the accused having secured anacquittal, the presumption of his innocence is certainly notweakened but reinforced, reaffirmed and strengthened by the trialcourt.

But in exercising the power conferred by the Code and beforeDreaching its conclusions upon fact, the High Court should and willalways 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, apresumption certainly not weakened by the fact that he has beenacquitted at his trial; (3) the right of the accused to the benefit ofEany doubt; and (4) the slowness of an appellate court in disturbinga finding of fact arrived at by a judge who had the advantage ofseeing the witnesses. To state this, however, is only to say thatthe High Court in its conduct of the appeal should and will act inaccordance with rules and principles well known and recognisedFin the administration of justice.”

It was stated that the appellate court has full powers to reviewand to reverse the acquittal.

21. In Atley vs. State of U.P., AIR 1955 SC 807, the approachof the appellate court while considering a judgment of acquittal wasGdiscussed and it was observed that unless the appellate court comes tothe conclusion that the judgment of the acquittal was perverse, it couldnot set aside the same. To a similar effect are the following observationsof this Court speaking through Subba Rao J., (as His Lordship then was)in Sanwat Singh vs. State of Rajasthan, AIR 1961 SC 715:H

“9. The foregoing discussion yields the following results: (1) anappellate court has full power to review the evidence upon whichthe order of acquittal is founded; (2) the principles laid down inSheo Swarup case afford a correct guide for the appellate court’sapproach to a case disposing of such an appeal; and (3) the differentphraseology used in the judgments of this Court, such as, (i)‘substantial and compelling reasons’, (ii) ‘good and sufficientlycogent reasons’, and (iii) ‘strong reasons’ are not intended to curtailthe undoubted power of an appellate court in an appeal againstacquittal to review the entire evidence and to come to its ownconclusion; but in doing so it should not only consider every matteron record having a bearing on the questions of fact and the reasonsgiven by the court below in support of its order of acquittal in itsarriving at a conclusion on those facts, but should also expressthose reasons in its judgment, which lead it to hold that the acquittalwas not justified.”

The need for the aforesaid observations arose on account ofobservations of the majority in Aher Raja Khimavs. State of Saurashtra,AIR 1956 SC 217 which stated that for the High Court to take a differentview on the evidence “there must also be substantial and compellingreasons for holding that the trial court was wrong.”

22. M.G. Agarwal vs. State of Maharashtra, AIR 1963 SC200 is the judgment of the Constitution Bench of this Court, speakingthrough Gajendragadkar, J. (as His Lordship then was). This Courtobserved that the approach of the High Court (appellate court) in dealingwith an appeal against acquittal ought to be cautious because thepresumption of innocence in favour of the accused “is not certainlyweakened by the fact that he has been acquitted at his trial.”

23. In Shivaji Sahabrao Bobade vs. State of Maharashtra,(1973) 2 SCC 793, Krishna Iyer, J., observed as follows:

“In short, our jurisprudential enthusiasm for presumed innocencemust be moderated by the pragmatic need to make criminal justicepotent and realistic. A balance has to be struck between chasingchance possibilities as good enough to set the delinquent free andchopping the logic of preponderant probability to punish marginalinnocents.”

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A24. This Court in Ramesh Babulal Doshi vs. State of Gujarat,(1996) 9 SCC 225, spoke about the approach of the appellate courtwhile considering an appeal against an order acquitting the accused andstated as follows:

“While sitting in judgment over an acquittal the appellate court isBfirst required to seek an answer to the question whether thefindings of the trial court are palpably wrong, manifestly erroneousor demonstrably unsustainable. If the appellate court answers theabove question in the negative the order of acquittal is not to bedisturbed. Conversely, if the appellate court holds, for reasons tobe recorded, that the order of acquittal cannot at all be sustainedCin view of any of the above infirmities it can then-and then only-reappraise the evidence to arrive at its own conclusions.”

The object and the purpose of the aforesaid approach is to ensurethat there is no miscarriage of justice. In another words, there should notbe an acquittal of the guilty or a conviction of an innocent person.D

25. In Ajit Savant Majagvai vs. State of Karnataka, (1997) 7SCC 110, this Court set out the following principles that would regulateand govern the hearing of an appeal by the High Court against an orderof acquittal passed by the Trial Court:

E“16. This Court has thus explicitly and clearly laid down theprinciples which would govern and regulate the hearing of appealby the High Court against an order of acquittal passed by the trialcourt. These principles have been set out in innumerable casesand may be reiterated as under:

F(1)In an appeal against an order of acquittal, the High Courtpossesses all the powers, and nothing less than the powersit possesses while hearing an appeal against an order ofconviction.

(2) The High Court has the power to reconsider the whole issue,reappraise the evidence and come to its own conclusionGand findings in place of the findings recorded by the trialcourt, if the said findings are against the weight of theevidence on record, or in other words, perverse.

(3) Before reversing the finding of acquittal, the High Courthas to consider each ground on which the order of acquittalH

was based and to record its own reasons for not acceptingthose grounds and not subscribing to the view expressedby the trial court that the accused is entitled to acquittal.

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(4) In reversing the finding of acquittal, the High Court has tokeep in view the fact that the presumption of innocence isstill available in favour of the accused and the same standsBfortified and strengthened by the order of acquittal passedin his favour by the trial court.

(5) If the High Court, on a fresh scrutiny and reappraisal of theevidence and other material on record, is of the opinion thatthere is another view which can be reasonably taken, thenthe view which favours the accused should be adopted.

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(6) The High Court has also to keep in mind that the trial courthad the advantage of looking at the demeanour of witnessesand observing their conduct in the Court especially in thewitness-box.

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(7) The High Court has also to keep in mind that even at thatstage, the accused was entitled to benefit of doubt. Thedoubt should be such as a reasonable person would honestlyand conscientiously entertain as to the guilt of the accused.”

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26. This Court in Ramesh Babulal Doshi vs. State of Gujarat,(1996) 9 SCC 225 observed vis-à-vis the powers of an appellate courtwhile dealing with a judgment of acquittal, as under:

“7. … While sitting in judgment over an acquittal the appellatecourt is first required to seek an answer to the question whetherthe findings of the trial court are palpably wrong, manifestlyerroneous or demonstrably unsustainable. If the appellate courtanswers the above question in the negative the order of acquittalis not to be disturbed. Conversely, if the appellate court holds, forreasons to be recorded, that the order of acquittal cannot at all besustained in view of any of the above infirmities it can then—andthen only—reappraise the evidence to arrive at its ownconclusions.”

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27. This Court in Chandrappa & Ors. vs. State of Karnataka,(2007) 4 SCC 415, highlighted that there is one significant difference inexercising power while hearing an appeal against acquittal by the appellate H

Acourt. The appellate court would not interfere where the judgmentimpugned is based on evidence and the view taken was reasonable andplausible. This is because the appellate court will determine the fact thatthere is presumption in favour of the accused and the accused is entitledto get the benefit of doubt but if it decides to interfere it should assignreasons for differing with the decision of acquittal.B

28. After referring to a catena of judgments, this Court culled outthe following general principles regarding the powers of the appellatecourt while dealing with an appeal against an order of acquittal in thefollowing words:

C“42. From the above decisions, in our considered view, the followinggeneral principles regarding powers of the appellate court whiledealing with an appeal against an order of acquittal emerge:

(1) An appellate court has full power to review, reappreciateand reconsider the evidence upon which the order ofDacquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation,restriction or condition on exercise of such power and anappellate court on the evidence before it may reach its ownconclusion, both on questions of fact and of law.

E(3)Various expressions, such as, “substantial and compellingreasons”, “good and sufficient grounds”, “very strongcircumstances”, “distorted conclusions”, “glaring mistakes”,etc. are not intended to curtail extensive powers of anappellate court in an appeal against acquittal. SuchFphraseologies are more in the nature of “flourishes oflanguage” to emphasise the reluctance of an appellate courtto interfere with acquittal than to curtail the power of thecourt to review the evidence and to come to its ownconclusion.

(4) An appellate court, however, must bear in mind that in caseGof acquittal, there is double presumption in favour of theaccused. Firstly, the presumption of innocence is availableto him under the fundamental principle of criminaljurisprudence that every person shall be presumed to beinnocent unless he is proved guilty by a competent court ofHlaw. 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 ofthe evidence on record, the appellate court should not disturbthe finding of acquittal recorded by the trial court.”

29. In Nepal Singh vs. State of Haryana– (2009) 12 SCC 351,this Court reversed the judgment of the High Court which had set asidethe judgment of acquittal pronounced by the trial court and restored thejudgment of the trial court acquitting the accused on reappreciation ofthe evidence.

30. The circumstances under which an appeal would be entertainedby this Court from an order of acquittal passed by a High Court may besummarized as follows:

A) Ordinarily, this Court is cautious in interfering with an order ofacquittal, especially when the order of acquittal has been confirmedupto the High Court. It is only in rarest of rare cases, where theHigh Court, on an absolutely wrong process of reasoning and alegally erroneous and perverse approach to the facts of the case,ignoring some of the most vital facts, has acquitted the accused,that the same may be reversed by this Court, exercising jurisdictionunder Article 136 of the Constitution. [State of U.P. v. Sahai,AIR 1981 SC 1442]

Such fetters on the right to entertain an appeal are promptedby the reluctance to expose a person, who has been acquitted bya competent court of a criminal charge, to the anxiety and tensionof a further examination of the case, even though it is held by asuperior court. [Arunachalam v. Sadhananthan, AIR 1979 (SC)1284]

An appeal cannot be entertained against an order of acquittalwhich has, after recording valid and weighty reasons, has arrivedat an unassailable, logical conclusion which justifies acquittal. [Stateof Haryana v. Lakhbir Singh, (1990) CrLJ 2274 (SC)]

B) However, this Court has on certain occasions, set aside theorder of acquittal passed by a High Court. The circumstancesunder which this Court may entertain an appeal against an orderof acquittal and pass an order of conviction, may be summarisedas follows:

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Ai)Where the approach or reasoning of the High Court isperverse:

a)Where incontrovertible evidence has been rejectedby the High Court based on suspicion and surmises,which are rather unrealistic. [State of Rajasthan v.BSukhpal Singh, AIR 1984 SC 207]

For example, where direct, unanimous accounts ofthe eye-witnesses, were discounted without cogentreasoning; [State of UP v. Shanker, AIR 1981 SC879]

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b)Where the intrinsic merits of the testimony ofrelatives, living in the same house as the victim, werediscounted on the ground that they were ‘interested’witnesses; [State of UP v. Hakim Singh, AIR 1980SC 184]

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c)Where testimony of witnesses had been disbelievedby the High Court, on an unrealistic conjecture ofpersonal motive on the part of witnesses to implicatethe accused, when in fact, the witnesses had no axeto grind in the said matter. [State of Rajasthan v.Sukhpal Singh, AIR 1984 SC 207]

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d)Where dying declaration of the deceased victim wasrejected by the High Court on an irrelevant groundthat they did not explain the injury found on one ofthe persons present at the site of occurrence of thecrime. [Arunachalam v. Sadhanantham, AIR1979 SC 1284]

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e)Where the High Court applied an unrealistic standardof ‘implicit proof’ rather than that of ‘proof beyondreasonable doubt’ and therefore evaluated theevidence in a flawed manner. [State of UP v. RanjhaRam, AIR 1986 SC 1959]

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f)Where the High Court rejected circumstantialevidence, based on an exaggerated and capricioustheory, which were beyond the plea of the accused;[State of Maharashtra v. Champalal Punjaji Shah, H

RAJESH PRASAD v. THE STATE OF BIHAR AND ANR. ETC.[NAGARATHNA, J.]

AIR 1981 SC 1675] or where acquittal rests merelyin exaggerated devotion to the rule of benefit of doubtin favour of the accused. [Gurbachan v. SatpalSingh, AIR 1990 SC 209].

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g)Where the High Court acquitted the accused on theground that he had no adequate motive to commitBthe offence, although, in the said case, there wasstrong direct evidence establishing the guilt of theaccused, thereby making it unnecessary on the partof the prosecution to establish ‘motive.’ [State of APv. Bogam Chandraiah, AIR 1986 SC 1899]

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ii)Where acquittal would result is gross miscarriage of justice:

a)Where the findings of the High Court, disconnectingthe accused persons with the crime, were based ona perfunctory consideration of evidence, [State ofUP v. Pheru Singh, AIR 1989 SC 1205] or basedon extenuating circumstances which were purelybased in imagination and fantasy. [State of UttarPradesh v. Pussu 1983 AIR 867 (SC)]

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b)Where the accused had been acquitted on ground ofdelay in conducting trial, which delay was attributablenot to the tardiness or indifference of the prosecutingagencies, but to the conduct of the accused himself;or where accused had been acquitted on ground ofdelay in conducting trial relating to an offence whichis not of a trivial nature. [State of Maharashtra v.Champalal Punjaji Shah, AIR 1981 SC 1675]

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[Source : Durga Das Basu – “The Criminal Procedure Code,1973” Sixth Edition Vol.II Chapter XXIX]

31. Bearing in mind the aforesaid discussion, we shall considerthe evidence on record.

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32. PWs-1, 3, 4 and 7 are related to each other and they are theson-in-law, cousin and sons of the deceased Chhote Lal Mahto,respectively. PW-1 in his examination-in-chief has stated that on10.03.2005 at about 05.00 p.m., he saw Munna Ram, Mahendra Ram,Upendra Ram, Dappu Ram and other persons come near his shop and H

Astarted abusing Chhote Lal Mahto (deceased) and his son Rajesh Prasad,appellant herein. That Munna Ram threw a bomb on Chhote Lal Mahtoand as a result, he died. O.P. Verma also died as a result of MahendraRam throwing a bomb at him. The third bomb was thrown on the streetand it did not injure anybody. At the same time, 20 to 25 people came tothe spot, caught hold of a person, namely Ashok Yadav and started beatingBhim, as a result of which, it was “heard” that he had died. However, inhis cross-examination, PW-1 has stated that the accused and otherpersons were abusing each other. He has also stated that he is not awarewhether the police lodged a case before Rajesh Prasad (PW-7) or not.He has feigned ignorance about anything that happened before theCincident. He has also stated that the deceased Chhote Lal Mahto is hisfather-in-law. He has deposed that due to the explosion of the bomb, thearea was covered with smoke and the Betel shop was not visible. Hehas also admitted that in his statement to the Police, he had stated thatMahendra Ram, Upendra Ram and Dhappu Ram came to his shop andstarted abusing his father-in-law. Chhote Lal Mahto pleaded not to do soDand also not to sell illicit liquor. That after abusing, they went away andreturned ten minutes later. However, he has admitted that he does notremember whether he has stated before the Police that Upendra Ramstarted shouting and directed Mahendra Ram to get hold of the deceasedand after that, Mahendra Ram threw a bomb. He has further stated that Eit is wrong to suggest that his father-in-law and other persons died dueto hurling of bombs by Ashok Yadav and other unknown persons.

33. PW-2/Prabhat Kumar Singh has stated that he runs a PCO(Public Call Office) booth and on 10.03.2005 at about 05.00 p.m., hewas at the booth. That there was an altercation between Rajesh PrasadF(PW-7) and Mahendra Ram, Upendra Ram and Dhappu Ram. ThatMunna Ram threw a bomb at Chhote Lal Mahto’s betel shop which hithim on his head and as a result of which his head was blown off. ThatPW-2 also came in contact with the splinters of the bomb and was injuredas a result of the same. That he was baffled after seeing the dead bodyof Chhote Lal Mahto and left the spot after closing his shop. However,Gduring cross examination he has stated that he left the spot thirty minutesafter the explosion.

34. He has also admitted that he is under police security as he hasbeen threatened by the accused that if he deposes against them, he mustbe ready to face the consequences. That is why he went to the policeH

station the previous evening and has deposed under police security. Hehas stated that he does not recognise Uday Prakash Mandal who waspresent in the Court. PW-2 has stated that he is a tenant in the house ofRajesh, the informant and that he signed the affidavit that was preparedbased on his statements which he had made as “advised” by his advocate.He has also admitted that he had not seen Rajesh, Naresh or any of theirfamily members beating Ashok Yadav. That the people left the scene ofoccurrence after the altercation amongst them ended. He has statedthat after the occurrence, an associate of Munna Ram had caught holdof him. That Chandrabhanu Prasad’s family helped Munna Ram fleefrom the spot.

35. PW-3 / Naresh Prasad @ Naresh Mahto has stated that on10.03.2005, he saw Munna Rai (to be read as “Munna Ram”) alongwith unknown persons hurling abuses in front of his betel shop, statingthat he would destroy anyone who interfered with his business. His brotherRajesh Prasad (PW-7) came out of his house and tried to pacify MunnaRai but he threatened that he would blow off his entire family with thebomb. After such threat, he left the spot only to return after ten minutesalong with Mahendra Rai, Upendra Rai (to be read as “Upendra Ram”)and Happu Rai (to be read as “Dhappu Ram”). That Munna Rai threwa bomb at the betel shop in which his father was sitting, as a result ofwhich his father’s head was blown away and he died on the spot. Anotherbomb was blasted by Munna Rai and a pedestrian, namely, O.P. Vermadied. That he went near his father and started crying. He does not knowwhat happened thereafter. He is also not aware as to who else signedthe seizure list on which his signature was found. While he identified theaccused Munna Rai, Mahendra Rai, Upendra Rai, Happu Rai, Bhanu Ji(Chandrabhanu Prasad), he did not recognise another person, who wasone among the accused. He had already stated that he did not seeChandrabhanu Prasad at the place of the occurrence.

36. In his cross-examination, he has stated that there is no personalenmity with the accused and his family members. In fact, there was“Nyota Pehani” (invites exchanged) between their families. He hasalso denied that there was any quarrel between him and Ashok Yadavand others such as Munna Rai. He has also denied that he and his familymembers beat up Ashok Yadav and others, as a result of which theycame and threw a bomb in anger. He has also denied Happu’s tea shopwas looted on the day of occurrence. He has also denied that the police A

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Acame at the place of occurrence within five minutes. That the StationHouse Officer, Kotwali P.S. did not record his Fardbayan at that time,but he took statement of Rajesh, Umesh, other villagers and PW-3. Thatthe Daroga did not write Fardbayan in his presence, but took his signatureon a plain paper and he does not know what was written in the applicationon the same. He has also stated that he is not aware of what was writtenBin the application to register FIR given by his brother as he was asleepwhen such an application was made.

That, in his statement to the police, he has stated that Munna Raiand unknown persons came to his betel shop and started hurling abuses.That he does not remember whether he had told the Police that bombsCwere blasted by the accused.

37. Umesh Prasad Rai is PW-4 who has spoken about the abusesof Mahendra Rai, Upendra Rai, Munna Rai, Dhappu Rai to the effectthat whoever interfered with or obstructed their illegal work would beblown away by a bomb. Munna Rai then threw a bomb at the betel shopDin which Chota Lal Mahto was sitting and as a result of which, his headblew up. Mahendra Rai then threw a second bomb which hit a passerby,O.P. Verma who was standing near M/s. Aditya Electronics and thethird bomb was blasted by Upendra Rai which fell on the road andexploded. Thereafter, he went near the body of Chhote Lal Mahto andEkept crying. On hearing the sound of the bombs, several people gatheredat the place of occurrence. That the inquest report of Chhote Lal Mahtowas made before him and he had signed it.

38. In his cross-examination, he has stated that Chhote Lal Mahtowas his uncle. He has stated that before the occurrence abuses wereFhurled but he has no knowledge of any pre-existing scuffle between theaccused and his brothers Rajesh and Naresh (sons of the deceased).That he had not informed the nearby police station after seeing theincident, but information was sent by someone else to the Police officerswho arrived after ten minutes. The police did not record his statementon the day of the occurrence. He has also admitted that his FardbayanGwas not in his handwriting and that though he is an advocate, beforesigning the Fardbayan he did not read it. He has stated that there wasno dispute between Rajesh and Ashok relating to illicit liquor and it is nottrue that it was in the course of such dispute that there was a scuffle andunknown persons blasted bombs in which his uncle and another persondied. He has stated that no bomb was thrown at the residence of NareshH

and Rajesh or at his house. That after two months and twenty days afterthe occurrence, he went to get his statement recorded because no officercame to record his statement. That, when the first bomb was blastedthere was a stampede and he does not remember whether the shopkeepers started shutting down their shops as there was much darkness.That he has not read the supervision note of SP and DSP. He has noknowledge that SP had given directions for recovering illicit liquor fromthe house of Rajesh, etc.

39. PW-7/Rajesh Prasad is the informant who is the son of thedeceased Chhote Lal Mahto and the appellant herein. In his examination-in-chief, he has stated that on 10.03.2005 at about 05.00 p.m., he was atthe door of his house and he saw Mahendra Rai, Upendra Rai and MunnaRai and other unknown persons come near his house, threatening thatthey would blow up his entire family with a bomb. Immediately, MunnaRai threw a bomb carried by him on his father Chhote Lal Mahto whowas sitting in his betel shop and the back portion of his father’s headblew away resulting in his instant death. Thereafter, Mahendra Rai threwanother bomb near M/s. Aditi Electronics which hit O.P.Verma, apasserby, as a result of which his head blew away and he also died onthe spot. Then Upendra Rai threw the bomb which fell on the road andexploded. The accused threatened them once again and fled the scene.That the reason behind the incident is that the accused were carrying on

illegal business of liquor and he and his family members opposed thesame and hence, there was a conspiracy and a common intention inpursuance of which his father was killed. That he filed a written complaintunder his signature at the police station (Exhibit No.2/2). The DeathReview Report of the dead body of his father was prepared in his presenceand he had signed it (Exhibit No.4/1). He also identified six accusedpersons present in the Court.

40. In his cross-examination, he has stated that he did not seeChandrabhanu Prasad at the place of the incident. He did not see DhappuRai from the start to the end of the incident. That the written complaintwhich he had prepared was read over and some of it was heard. He didnot read it completely. The complaint was made in the police station inthe evening at 06.00 p.m. That he had engaged a private lawyer topresent his case. That the first information report was not read over tohim. That he does not know completely as to what is written in the firstinformation report. He also does not know as to what he had mentioned A

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Ain the protest petition. That his lawyer had given him the first informationreport, so written and he had just signed the protest petition and he hadnot gone through it and understood it. That none of his brothers or relativeshave ever read the case diary, supervision note and protest petition.

41. He has also admitted that there was no dispute or litigationBbetween the family of Mahendra, Upendra, Munna, and his family. Thaton the date of the alleged incident, some heated exchanges between hisfather and Munna took place, but he does not know whether he hasstated the said fact in the first information report or in his protest petitionor before the Police. He has also denied that there were any disputesbetween them before the incident. He also does not know whether theCpolice was informed immediately after the incident. That the police cameat the scene of the crime at about 05.00 and 05.30 p.m., but he does notknow which particular police officer came there. He has also noknowledge as to whether the inspector recorded the Fardbayan orwhether the statements of Upendra, his brother or his family membersDwere recorded by the police on the same day or not, but his statementwas recorded.

42. Further, in his cross-examination, PW-7 has further deniedthat he had made any statement before the inspector, SP or DSP thatbefore the incident at about 04.00 to 04.30 p.m., the accused abused theEvillagers in un-parliamentary language and when they could not tolerateit any more, they came out of the house and abused them. The accusedthreatened and went away. He also denied making any statement to theeffect that Upendra Rai exploded the bomb which blew up after strikingthe road. He has confirmed the statement he made before the Inspector,SP and DSP that a bomb was exploded by Mahendra Rai near M/s.FAditi Electronics, which hit O.P. Verma, a passerby and he died on thespot. He had also admitted that he does not recall whether he had gotrecorded in his Fardbayan with the police that while running away, oneof the accused was caught hold of by the people and was nearly beatento death. He has further stated that he does not recall any other aspectGof the case. For better appreciation of the same, it would be useful toextract paragraph 21 of his deposition as under:

“21. I do not recall that whether I had got recorded in my FardBeyan with the Police that while running away, one accused wascaught by the people and after giving him beatings put him almostHto death. I do not recall that I gave the statement to the Police that I pulled up my sock and caught the hold of Munna Rai, whowas freed by Chandrabhan and brother of Munna Rai and he ranaway. I do not recall that I had stated that then Chandrabhan andTappu said that our work is finished now and they ran away fromthere. It is not like that Mahendra, Upendra and Munna have notcommitted the incident and therefore, I am saying every time thatI do not know.”

Further, in paragraph Nos.25 and 26, PW-7 the informant (theappellant) has stated as under:

“25. It is not like that my brother, brother-in-law, Umesh and Itogether beat up the unknown criminals very badly near junctionturn and they got annoyed and one of them said that just stay herewe are coming back in few minutes and then they exploded thebombs. It is not like that just minutes after, criminals came therewith bombs and while abusing to kill me, my brother, Umesh andbrother-in-law and then we ran towards our house to save our lifeand then they threw the bomb, which fell near Aditi Electronicsand we succeeded in escaping from there and closed ourselvesinside the house and when they could not find us, unknowncriminals exploded the bomb on our father in our Pan Shop. It isnot like that when the accused persons after exploding the bombstarted running away, people of the village raised the alarm andthen all people gathered and managed to catch one of the criminalsand beat up him to death. It is not like that when we heard thenoise of the villagers that — illegible —, we came out after openingthe door and we together beat up the unknown criminal. It is notlike that we did not say in the loud voice before the people of thevillage that he works on the shop of Tappu Rai and Munna Rai,rob him and then we looted the shop of Tappu Rai and Munna Raiand destroyed it. Tappu Rai has no shop.

26. Tappu Rai has the tea shop at crossing in front of the Court ofCJM, which has now destroyed. It is not like that when we askedthe people to rob and damage the shop of Tappu Rai and MunnaRai, Mahendra and Upendra of his family and other members ofhis family came and they opposed our above intention and thenwe hatched the conspiracy and prepared a new application andsubmitted it with the Police Station in night at 9.00 pm in order toimplicate them.”

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In his further cross-examination, in paragraph 29, PW-7 he hasstated as under:

“29. …… I could not say that any pellet of the bomb hit anypasserby and person in traffic. It just hurt O. P. Verma only. I didnot make any such statement before the Police and DCP that inBtotal five bombs were exploded. It is not like that I said that intotal five bombs were exploded.”

With regard to his statements before the DSP, PW-7 hascategorically stated as under:

“31. My statement was not recorded before the DSP Sahab. Againstated that I do not know whether I made the statement beforethe DSP Sahab or not. I do not know that I request the SP in theprotest petition to handover the investigation to some SuperiorOfficer. SP had gone for supervision or not, I cannot tell anythingin this regard.

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32. It is not like that on the order of DIG, SP had carried out theinspection of the scene of crime personally. I cannot tell anythingin this regard. It is not like that in order to conceal the truth of theincident, I am stating that I am illiterate and concealing the factregarding inspection carried out by SP Sahab.

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33. It is not like that I made the statement to the SP that Naresh,Bablu, Aatish and I beat up Ashok Yadav very badly and whenMunna came for his rescue, we also beat up him and then he ranaway from there to save his life. (Objected to).”

With regard to the aspect of bombs being hurled, PW-7 atFparagraphs 35 and 36 has stated as under:

“35. It is incorrect to state that when first bomb exploded, stampedetook place in the traffic and people started concealing themselvesin order to save their life and shop started closing and we aftersaving our life ran away from there. It is incorrect to state thatGthereafter Ashok Yadav threw the bomb on my Pan Shop in itsexplosion my father had died and thereafter people of the villagecaught the hold of Ashok Yadav and beat up him till he died.

36. It is incorrect to state that quarrel took place with Ashok Yadavon demanding balance amount from him and he was beaten upand due to above reason, he exploded the bombs.”

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43. PW-9/Mani Lal Sahwas was the Sub-Inspector posted at P.S.Kotwali, Munger, on 10.03.2005. He has stated that he receivedinformation through telephone about the incident at about 17.15 hoursand he, along with Sub-Inspector Md. Azhar and K.K. Gupta, alongwith an armed force left for Bhadeopur Gola Road and reached there at17.20 hours. On arriving there, Rajesh Prasad, S/o. Late Chhote LalMahto gave a written application (Exhibit 3/3) about the cognizableoffence. On the basis of the said application, he took up the investigationof the case at the place of occurrence and during the course ofinvestigation, the statement of the informant was taken again and a casewas registered. Thereafter, the inquest report of Chhote Lal Mahto wasprepared (Exhibit 4/2), so also the inquest report of the deceasedO.P.Verma was prepared. Their bodies were sent for post mortem at19.30 hours to Sadar Hospital, Munger along with a constable. Theremains of the bomb were collected and seizure list was prepared (Exhibit1/2), so also the blood stained soil was collected and the seizure list is atExhibit No.8. That the dead body of Chhote Lal Mahto was brought outof the betel shop by the relatives of the deceased. Inside the Betel shop,there was blood and flesh scattered as the head and upper neck of thedeceased Chhote Lal Mahto was blown away. The occurrence of secondblast was approximately 40 to 45 yards towards the north of the betelshop of the deceased, near M/s. Aditya Electronics on the footpath. Thedeceased was identified as Om Prakash Verma, a tea seller. Similarseizures were made at the scene of occurrence.

44. He further stated that Santosh Kumar Patil and Anil Mahtogave their statements on the same day. The accused were absconding.On the same day, the statements of other persons were recorded and on12.03.2005 at about 06.40 a.m., the accused Munna Rai and DhappuRai were arrested. Subsequently, on 18.04.2005, the investigation wastransferred to another officer.

45. In his cross-examination, the said witness has stated that RajeshPrasad, the informant, did not state about Mahendra Rai and UppendraRai blasting bombs. Referring to the Fardbayan that was recorded atthe place of occurrence, PW-9 has stated as follows: That the informant’sstatement does not record that Mahendra Rai, Uppendra Rai, DhappuRai were present; Instead, he has stated that Munna Rai went home tobring bombs and at that time, his brother was also there. That UmeshPrasad did not say that he was at his gate at the time when Munna Rai, A

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AMahendra Rai, Uppendra Rai and Dhappu Rai were abusing and sayingthat whoever objects to their illegal activity would be blown up. ThatUmesh Prasad did not mention in his statement that the second bombwas blown by Mahendra Rai which hit a passerby by name O.P.Vermawho was standing near M/s. Aditya Electronics and his head was blownaway. Similarly, there was no statement that third bomb was blasted byBMahendra Rai, which fell on the street and made a loud noise.

46. Also, in the Fardbayan as well as in his statement, RajeshPrasad, the appellant herein, had not stated that Munna Rai, UppendraRai, Mahendra Rai and Dhappu Rai came near his father’s betel shopand started abusing and upon retaliation by his father, there was heatedCargument and they threatened to blow him up with a bomb.

47. PW-8 /Santosh Kumar Patel, in his examination-in-chief hasstated that on 10.03.2005 at about 05.00 p.m. he was standing near hisgate and he saw the accused and Chhote Lal Mahto engaged in indecentand foul abuses and heard threats of the accused to blow up the familyDof Chhote Lal Mahto with bombs and further, that Chhote Lal Mahto’shead was blown up by Munna Rai. That O.P. Verma died in anotherbomb attack. But in his cross examination, he has stated that he couldnot have seen the occurrence of the incident from his house which is100 yards away. He has further stated that his statement was recordedEby the police at the place of occurrence and on the day of occurrence at08.00 in the night. But he had not told the police that the third bomb wasthrown on the road which did not hit anyone. Soon thereafter, the peopleof the area gathered and the people got aggressive and tried to catchhold of both the miscreants. He has further admitted that he did not statethat the bomb was thrown at Rajesh’s shop where his father was sittingFand the bomb hit him.

48. On a consideration of the aforesaid evidence, we find thatPW-7, who is the informant in his evidence, has resiled from what hehad initially stated to the Police even though he claims to be an eye-witness to the occurrence. It has been established that Chandra BhanuGPrasad, though a resident of the locality, was not present during theoccurrence of the incident. Similarly, the presence of Dhappu Ram andFantush Mandal is doubted by PW-8. In fact, the Investigating Officer /PW-9 has also corroborated the fact that PW-7 had not stated anythingabout the bombs being thrown by Mahendra Ram, Upendra Ram andHthat there was no mention of Dhappu Ram. In the deposition of PW-3, RAJESH PRASAD v. THE STATE OF BIHAR AND ANR. ETC.[NAGARATHNA, J.]

there has been no mention of Dhappu Ram, Munna Ram and MahendraRam as also in the evidence of PW-2. Further, PW-4 who is an advocateand who is said to have prepared the written report, has not beencategorical in his evidence. It is denied by PW-8 who is also an advocateand an attesting witness to the written report, that the bomb was thrownat the informant’s shop and that it hit the informant’s father who died asa result of the same.

49. On the basis of the aforesaid evidence, the High Court, duringthe course of its reasoning, has come to the following conclusions:

a)The written report is specific but it attributes a trivial role toChandrabhanu Prasad who was accompanied by DhappuRam and others. On the orders of Chandrabhanu Prasad,three bombs were thrown. Chandrabhanu Prasad freed co-accused Munna Ram when he was apprehended.

b)PW-7, the informant, was an eyewitness to the occurrence.In his cross examination, he stated that he had never seenChandrabhanu Prasad and Dhappu Ram, who wereresidents of the same locality and were well known to him,present at any time throughout the occurrence. He alsorefused to identify Fantus Mandal whose name arose duringinvestigation.

c)PW-2 stated that Chandrabhanu Prasad was a resident ofthe locality and was known to him but was not present duringthe entire occurrence. To the same effect is the statementof PW-3 and PW-4. PW-8 also stated that Dhappu Ramand Fantus Mandal were not present.

d)However, PWs 1, 2, 3 and 4 spoke about the presence ofDhappu Ram and gave his name in their statements undersection 161 of Cr.PC.

e)PW-9, the Investigating Officer, has stated that the informantin his statement under section 161 Cr.PC had not statedanything about throwing of bombs by Mahendra Ram andUpendra Ram and neither had he named Dhappu Ram.

f)That during the course of the trial, PW-3 had not namedDhappu Ram, Munna Ram and Mahendra Ram and PW-2had likewise not named Munna Ram, Mahendra Ram,Upendra Ram and Dhappu Ram.

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Ag)PW-7 had not stated anything about any accused beingapprehended and beaten up. In his restatement also, he didnot state that Munna Ram, Mahendra Ram, Upendra Ramand Dhappu Ram had come to the shop of his father andindulged in abuse.

Bh)Likewise, PW-8 had also not made any statement, as wasbeing deposed in Court.

In view of the above, the High Court held as under :

“The contradiction in the statement of the prosecutionwitnesses as stated during investigation and in the trialChaving been pointed out to them in the manner provided forin section 145 of the Evidence Act, and corroborated bythe Investigating Officer, under section 157 of the EvidenceAct lends credence to the allegation of the defence that anentirely new case was sought to be made out by theDprosecution for what was essentially a different mannerand sequence of events.”

i)The police stated that they had arrived at the place ofoccurrence within 20 minutes of the incident i.e. at 5.20 pmwhich fact has been corroborated by PW-7, the informantEand other prosecution witnesses. PW-7 denied any writtenreport given to the police station at 9.00 pm. He stated thathe had signed the written report prepared by PW-4 but wasnot aware of its contents.

Fj)According to PW-7, PW-4, who is an advocate and is acousin of PW-7, prepared a written report. PW-7 admittedthat he is an attesting witness to the FIR but denied fullknowledge or reading of the same before signing.

k)Similar is the denial by PW-8, a relative of PW-7. PW-8 isalso an advocate and an attesting witness to the writtenGreport.

50. On the aforesaid evidence the High Court observed as under:

“They were not rustic witnesses but were practicing advocatesfully aware of the nature and importance of the documents theyHwere signing. It is not possible to accept their contention that they signed it unaware of the full contents. It raises serious doubts thatthey were attempting to conceal something.”

51. With regard to the written report, the High Court has notedfrom the evidence as under :

“There is no explanation for this delay, though he could be presumedto be present at the Police Station when the written report washanded over to the police.”

52. The High Court has also noted flaws in the investigation ofthe case and in the evidence of the prosecution witnesses which areculled out as under:

(i) PW-7 said that PW-4 drew up the written report while PW-4 denied the same.

(ii) While PW-1 and PW-3 were related to the deceased andsigned the seizure list immediately after the occurrence,yet PW-3 had stated that he was not aware of the othersignatory to the seizure list.

(iii) The statement of PW-1, who was a witness to the seizurelist as well as an eyewitness , was recorded by the policeone and half months later with no explanation either by thewitness or by the police.

(iv) Similarly, statement of PW-4 who is an eyewitness and awitness to the inquest report of the deceased and who isstated to have drawn up the written report given to thepolice, was recorded by the police after two months andtwenty days. The High Court has noted that there is noexplanation for the delay, though he could be presumed tobe present at the Police Station when the written reportwas handed over to the Police.

(v) PW-2, the shop owner of the PCO booth adjoining the betelshop of the deceased, was also allegedly injured during theoccurrence but there is no injury report.

(vi) The contradiction in the evidence of PW-3 is noted as under:

“That PW-3 has stated that the police came within 20 to 25minutes and took the statement of the informant, PW3 andothers, but he has stated that PW-7 gave written report to A

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the police at 9 p.m., that he was sleeping at that time andunaware about it yet he stated that the report may havebeen given at 8.30 p.m. PW-7 on the other hand has statedthat the written report was given to the police at 6 p.m., atthe police station and had denied of having given any reportto the police at 9 p.m. On the other hand, PW-9 who is IOin the matter stated that PW-7 gave him the written reportimmediately after he reached the place of occurrence.”

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(vii) While the prosecution witnesses alleged throwing of threeor more bombs, the Investigating Officer stated that hefound signs only of two explosions; first one being at thebetel shop of the deceased and the second one near M/sAditya Electronics, located 40-45 yards north of the site ofthe first explosion.

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53. With regard to explosions which took place on the date ofincident, the High Court has considered the evidence of PW-7, PW-1,Dand PW-9 and observed as under:

“This Court on consideration of the aforesaid material and natureof evidence is satisfied that the allegations against the accusedcannot be stated to have been proved beyond all reasonable doubts.The several inconsistencies, contradictions in the statement ofthe witnesses and other necessary materials leave this Courtsatisfied that they have attempted to conceal more than they havesought to reveal of the occurrence. A different manner andsequence of the occurrence appears to have been presented bythe prosecution for their convenience in a truncated mannerimplicating those desired and exonerating those against whom theallegations were originally made also. There is not a semblanceof an explanation for exonerating those earlier accused with aprimal role and those with regard to whom no statement wasmade before the Police. All these factors cast a serious doubt onthe prosecution case.

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The informant, in Court, has given up the entire genesis and themanner of occurrence when the two co-accused have beenexonerated. The informant having implicitly accepted falseimplication, cannot be trusted of telling the truth. The principle offalsus in uno, falsus in omnibus has no application in the facts H

of the case, when the prosecution has itself knocked out the basisedifice of its own case as distinct from peripheral issues.

The prosecution despite the nature of evidence given by itswitnesses, did not consider it necessary to re-examine them underSection 137 of the Evidence Act or cross-examine them underSection 154 of the same.

The illicit liquor trade rivalry revealed during trial between thetwo sides, leaves this Court satisfied that in the facts andcircumstances of the case, the charge cannot be stated to havebeen proved beyond all reasonable doubt. On the contrary, theprosecution has created a cobweb for itself and enmeshed itself,the benefit of which has to go to the accused.

Unfortunately, the trial court ignoring all these crucial issuesinverted the law to hold that the defence was based on surmisesand conjectures to hold the appellants guilty and there could notbe two views of the occurrence to grant any benefit to the accused.And all this, while unquestionably granting acquittal to ChandraBhanu, Dhappu Ram and Fantus as a case of no evidence. ThisCourt finds it difficult to uphold the conviction let alone the deathsentence.

The manner in which the trial proceeded as noticed above, leavesthe impression that the prosecution witnesses considered the courtroom as a playing field for a friendly match. Unfortunately, thetrial court assumed the role of a referee forgetting the importantrole that it had to play in the dispensation of justice dealing withthe serious issue of a death sentence and life imprisonmentaffecting not only the liberty but also the life of a citizen.

The subversion of the legal maxim presumed innocent till provedguilty to say the least was unfortunate.

We are satisfied that the present case is a fit case for initiatingproceedings of perjury against P.W.7, Rajesh Prasad son of LateChhote Lal Prasad. We, accordingly direct the trial court to initiateproceedings, hold inquiry in accordance with law and passappropriate orders.”

54. We have extracted the observations made by the High Courtwhile reversing the judgment of conviction giving categorical reasons A

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Afor doing so. We also observe that the Fast Track Court has failed toappreciate the evidence of PWs-1, 3, 4 and 7 in their proper perspectiveand has further failed to recognise the fact that PW-7/the appellant hereindid not at all support the case of the prosecution although he was theinformant and hence, erroneously convicted the accused and sentencedtwo of them with death penalty and the third accused with imprisonmentBfor life. In our view, the High Court was, therefore, justified in reversingthe judgment and order of conviction passed by the Fast-Track Court.

55. It is also noted that the State has not filed any appeal againstthe judgment and order of acquittal passed by the High Court.

C56. Having re-appreciated the evidence of the witnesses, we findthat the High Court was justified in reversing the judgment of convictionand sentencing the two of the accused, namely Munna Ram andMahendra Ram with death penalty and imposing Upendra Ram toundergo life imprisonment and instead acquitting all the accused.

D57. Further, the High Court has stated that this is a fit case forinitiating proceedings of perjury against the appellant (PW-7) herein. Nodoubt, the appellant herein who was the informant did not at all supportthe case of the prosecution during trial and as a result, the High Courtacquitted the accused. However, having regard to the facts andcircumstances of these cases and bearing in mind that there were twoEdeaths in the incident that occurred on 10[th] March, 2005 which has notbeen proved beyond reasonable doubt, we set aside only that portion ofthe impugned judgment and order directing the trial court to initiateproceedings of perjury against the appellant herein. We affirm the restof the judgment and order of acquittal passed by the High Court.F58. The appeals are allowed in part to the aforesaid extent only.

Devika Gujral(Assisted by : Mahendra Yadav, LCRA)

Appeals partly allowed.

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