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2016 (11) TMI 1755 - SUPREME COURTMurder - Reversal of acquittal - Manipulated FIR - Ante-timing of the FIR and delayed dispatch of the FIR to the court of the Magistrate - reliability on eye-witnesses - HELD THAT:- The present is the case, where recording of the FIR on 16th June, 2000 itself has been proved, accepted by the trial court also, thus mere dispatch of the FIR on 22nd June, 2000 from the police station to the Magistrates' Court has no bearing on the basis of which any adverse presumption can be drawn. From the above discussion, it is clear that the FIR was genuine FIR and trial court committed an error in drawing adverse inference against the prosecution and refusing to attach value to the FIR - The conclusion of the learned Sessions Judge that the FIR was manipulated is thus found to be erroneous. FIR has been proved by the evidence. Thus, one of the basis of the decision of the Sessions Judge for discarding the prosecution case is knocked out. The mere fact that the witness did not name the person whom he tried to catch does not lead to any contradiction since all eye-witness have stated that four persons came by 2 bicycles one of whom shoot Debol Ghosh. PW 2 stated that he tried to catch one person of the aforesaid and omission not to name the person does not lead to any contradiction nor can result in discarding the evidence. The observation of learned Sessions Judge that the evidence suffers from the improbability and cannot be relied is also not based on any valid reason. High Court was conscious that the case where acquittal has been made, while entertaining an appeal over an order of acquittal if two views are possible on making proper appreciation of available evidence the view going in favour of accused have to given importance. It is well settled that in case where an order of acquittal has been made on improper and erroneous appreciation of evidence, it is always open to the court of appeal to make proper and reasonable appreciation evidence and differ from the order of acquittal and in such event, it shall never hesitate in reversing the same. The findings and conclusion recorded by the High Court are based on the correct appreciation of evidence and do not suffer from any error. The judgment of the High Court reversing the acquittal recorded by learned Sessions Judge needs no interference. There are no merits in this appeal. The appeal is dismissed.
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