TMI Blog2022 (1) TMI 1396X X X X Extracts X X X X X X X X Extracts X X X X ..... that there was no mention of Dhappu Ram. In the deposition of PW-3, there has been no mention of Dhappu Ram, Munna Ram and Mahendra Ram as also in the evidence of PW-2. Further, PW-4 who is an advocate and who is said to have prepared the written report, has not been categorical in his evidence. It is denied by PW-8 who is also an advocate and an attesting witness to the written report, that the bomb was thrown at the informant's shop and that it hit the informant's father who died as a result of the same. It is observed that the Fast Track Court has failed to appreciate the evidence of PWs-1, 3, 4 and 7 in their proper perspective and has further failed to recognise the fact that PW-7/the Appellant herein did not at all support the case of the prosecution although he was the informant and hence, erroneously convicted the Accused and sentenced two of them with death penalty and the third Accused with imprisonment for life. The High Court was, therefore, justified in reversing the judgment and order of conviction passed by the Fast-Track Court. The High Court was justified in reversing the judgment of conviction and sentencing the two of the Accused, namely Munna Ram a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt however acquitted the other Accused viz., Fantus Mandal, Dhappu Ram and Chandrabhanu Prasad. 3. It is the case of the prosecution that on Thursday, 10th March, 2005, at about 5.00 pm, Accused Mahendra Ram, Upendra Ram, Munna Ram, Dhappu Ram, all being sons of Kishori Ram and Chandrabhanu Prasad, with two other unknown persons proceeded towards the informant viz., Rajesh Prasad (PW-7) and protested that as the informant had opposed their illegal activities, his entire family would be blown off by a bomb. Accused Munna Ram threw a bomb at the informant's father Chhote Lal Mahto who was sitting in his betel (pan) shop. The rear portion 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 result thereof, his head was blown away and he died on the spot. Further, Upendra Ram hurled another bomb which missed injuring anyone else and exploded on the road. Then Accused Chandrabhanu and Dappu Ram stated that they would proceed from there as their job had been completed and they tried to flee from the spot, but the furious public caught hold of an unknown person and assaulted him as a result of which he wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly of the informant assaulted Ashok Yadav. As a result, some unknown persons became furious and hurled bombs and caused the alleged occurrence. That the associates of the informant had looted the tea shop of Accused Dhappu Ram and that the informant had falsely implicated the Accused. 8. We have heard Ms. Prerna Singh, learned Counsel for the Appellant; Sri Saket Singh, learned Counsel for the State and Sri Ranjan Mukherjee, learned Counsel for the Respondents-Accused and perused the material on record. 9. Appellant's counsel submitted that the High Court was not right in setting aside the judgment of conviction and sentence passed by the Fast-Track Court, thereby acquitting the Accused. She drew our attention to the evidence of PWs 3, 4, 5, 8, 9 and 10 and contended that the same would clearly establish the guilt of the Accused beyond reasonable doubt. However, the High Court has not appreciated the case of the Appellant herein in its proper perspective and has set aside the judgment of the Fast-Track Court. The Appellant-informant PW-7 who is one of the sons of the deceased Chhote Lal Mahto had clearly stated in the complaint and also in his deposition about the culpabi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Fast-Track Court, thereby acquitting all the Accused? (b) Whether the judgment of the High Court calls for any interference or modification by this Court? (c) What order? 15. The Fast-Track Court considered the case of the prosecution being that on 10th March, 2005 at about 5.00 pm, the Accused came to the informant and stated that since the informant and his family were objecting to his illegal sale of country made liquor, he along with his family would be eliminated. Then, Accused Munna Ram hurled a bomb that he was holding in his hand and the father of the informant, Chhote Lal Mahto, sitting at the betel shop died in the blast. Second bomb was hurled by Accused Mahendra Ram causing the death of a pedestrian named O.P. Verma and the third bomb was thrown by Accused Upendra Ram, 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 raised by the deceased Chhote Lal Mahto and his son PW-7 Rajesh Prasad-informant, Appellant herein, against the illegal liquor business of the Accused. 16. The Fast-Track Court also noted that the defence was unable to substantiate their case that the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he High Court, on considering the submissions made on behalf of the Accused as well as the State, noted at the outset as under: It is trite law that acquittal of a co-Accused cannot simpliciter be a ground for acquittal of other Accused. There may be factors distinguishing the two cases. Alternately, an erroneous acquittal and absence of any challenge to the same cannot be a ground to demand similar treatment by others. Likewise, the testimony of an interested witness cannot be discarded on that ground alone. It would only require the Court to be more cautious and scrutinize the evidence carefully. Evidence, otherwise cogent and convincing cannot be rejected on the ground that there was no independent witness, though the occurrence had taken place on a busy road. But, there may be circumstances where the witnesses are interested and the manner of occurrence as described requires corroboration by independent witness also. Ultimately, therefore, it shall all depend on the facts and circumstances of the case. It has also to be kept in mind that it shall be those close to the deceased, who shall be most keen that the real culprits be booked. With the aforesaid observations, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a judgment of acquittal was discussed and it was observed that unless the appellate court comes to the conclusion that the judgment of the acquittal was perverse, it could not set aside the same. To a similar effect are the following observations of this Court speaking through Subba Rao J., (as His Lordship then was) in Sanwat Singh v. State of Rajasthan AIR 1961 SC 715: 9. The foregoing discussion yields the following results: (1) an appellate court has full power to review the evidence upon which the order of acquittal is founded; (2) the principles laid down in Sheo Swarup case afford a correct guide for the appellate court's approach to a case disposing of such an appeal; and (3) the different phraseology used in the judgments of this Court, such as, (i) 'substantial and compelling reasons', (ii) 'good and sufficiently cogent reasons', and (iii) 'strong reasons' are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion; but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. In another words, there should not be an acquittal of the guilty or a conviction of an innocent person. 25. In Ajit Savant Majagvai v. State of Karnataka, (1997) 7 SCC 110, this Court set out the following principles that would regulate and govern the hearing of an appeal by the High Court against an order of acquittal passed by the Trial Court: 16. This Court has thus explicitly and clearly laid down the principles which would govern and regulate the hearing of appeal by the High Court against an order of acquittal passed by the trial court. These principles have been set out in innumerable cases and may be reiterated as under: (1) In an appeal against an order of acquittal, the High Court possesses all the powers, and nothing less than the powers it possesses while hearing an appeal against an order of conviction. (2) The High Court has the power to reconsider the whole issue, reappraise the evidence and come to its own conclusion and findings in place of the findings recorded by the trial court, if the said findings are against the weight of the evidence on record, or in other words, perverse. (3) Before reversing the finding of acquittal, the High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l determine the fact that there is presumption in favour of the Accused and the Accused is entitled to get the benefit of doubt but if it decides to interfere it should assign reasons for differing with the decision of acquittal. 28. After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words: 42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, substantial and compelling reasons , good and sufficient grounds , very strong circumstances , distorted conclusions , gla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 84] An appeal cannot be entertained against an order of acquittal which has, after recording valid and weighty reasons, has arrived at an unassailable, logical conclusion which justifies acquittal. [State of Haryana v. Lakhbir Singh, (1990) CrLJ 2274 (SC)] B) However, this Court has on certain occasions, set aside the order of acquittal passed by a High Court. The circumstances under which this Court may entertain an appeal against an order of acquittal and pass an order of conviction, may be summarised as follows: i) Where the approach or reasoning of the High Court is perverse: a) Where incontrovertible evidence has been rejected by the High Court based on suspicion and surmises, which are rather unrealistic. [State of Rajasthan v. Sukhpal Singh AIR 1984 SC 207] For example, where direct, unanimous accounts of the eye-witnesses, were discounted without cogent reasoning; [State of UP v. Shanker AIR 1981 SC 879] b) Where the intrinsic merits of the testimony of relatives, living in the same house as the victim, were discounted on the ground that they were 'interested' witnesses; [State of U.P. v. Hakim Singh AIR 1980 SC 184] c) Where testi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Code of Criminal Procedure, 1973 Sixth Edition Vol. II Chapter XXIX] 31. Bearing in mind the aforesaid discussion, we shall consider the evidence on record. 32. PWs-1, 3, 4 and 7 are related to each other and they are the son-in-law, cousin and sons of the deceased Chhote Lal Mahto, respectively. PW-1 in his examination-in-chief has stated that on 10.03.2005 at about 05.00 p.m., he saw Munna Ram, Mahendra Ram, Upendra Ram, Dappu Ram and other persons come near his shop and started abusing Chhote Lal Mahto (deceased) and his son Rajesh Prasad, Appellant herein. That Munna Ram threw a bomb on Chhote Lal Mahto and as a result, he died. O.P. Verma also died as a result of Mahendra Ram throwing a bomb at him. The third bomb was thrown on the street and it did not injure anybody. At the same time, 20 to 25 people came to the spot, caught hold of a person, namely Ashok Yadav and started beating him, as a result of which, it was heard that he had died. However, in his cross-examination, PW-1 has stated that the Accused and other persons were abusing each other. He has also stated that he is not aware whether the police lodged a case before Rajesh Prasad (PW-7) or not. He has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after the altercation amongst them ended. He has stated that after the occurrence, an associate of Munna Ram had caught hold of him. That Chandrabhanu Prasad's family helped Munna Ram flee from the spot. 35. PW-3/Naresh Prasad @ Naresh Mahto has stated that on 10.03.2005, he saw Munna Rai (to be read as Munna Ram ) along with unknown persons hurling abuses in front of his betel shop, stating that he would destroy anyone who interfered with his business. His brother Rajesh Prasad (PW-7) came out of his house and tried to pacify Munna Rai but he threatened that he would blow off his entire family with the bomb. After such threat, he left the spot only to return after ten minutes along with Mahendra Rai, Upendra Rai (to be read as Upendra Ram ) and Happu Rai (to be read as Dhappu Ram ). That Munna Rai threw a bomb at the betel shop in which his father was sitting, as a result of which his father's head was blown away and he died on the spot. Another bomb was blasted by Munna Rai and a pedestrian, namely, O.P. Verma died. That he went near his father and started crying. He does not know what happened thereafter. He is also not aware as to who else signed the seizure list ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made before him and he had signed it. 38. In his cross-examination, he has stated that Chhote Lal Mahto was his uncle. He has stated that before the occurrence abuses were hurled but he has no knowledge of any preexisting scuffle between the Accused and his brothers Rajesh and Naresh (sons of the deceased). That he had not informed the nearby police station after seeing the incident, but information was sent by someone else to the Police officers who arrived after ten minutes. The police did not record his statement on the day of the occurrence. He has also admitted that his Fardbeyan was not in his handwriting and that though he is an advocate, before signing the Fardbeyan he did not read it. He has stated that there was no dispute between Rajesh and Ashok relating to illicit liquor and it is not true that it was in the course of such dispute that there was a scuffle and unknown persons blasted bombs in which his uncle and another person died. He has stated that no bomb was thrown at the residence of Naresh and Rajesh or at his house. That after two months and twenty days after the occurrence, he went to get his statement recorded because no officer came to record his statemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentioned in the protest petition. That his lawyer had given him the first information report, so written and he had just signed the protest petition and he had not gone through it and understood it. That none of his brothers or relatives have ever read the case diary, supervision note and protest petition. 41. He has also admitted that there was no dispute or litigation between the family of Mahendra, Upendra, Munna, and his family. That on the date of the alleged incident, some heated exchanges between his father and Munna took place, but he does not know whether he has stated the said fact in the first information report or in his protest petition or before the Police. He has also denied that there were any disputes between them before the incident. He also does not know whether the police was informed immediately after the incident. That the police came at the scene of the crime at about 05.00 and 05.30 p.m., but he does not know which particular police officer came there. He has also no knowledge as to whether the inspector recorded the Fardbeyan or whether the statements of Upendra, his brother or his family members were recorded by the police on the same day or not, but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nics and we succeeded in escaping from there and closed ourselves inside the house and when they could not find us, unknown criminals exploded the bomb on our father in our Pan Shop. It is not like that when the Accused persons after exploding the bomb started running away, people of the village raised the alarm and then all people gathered and managed to catch one of the criminals and beat up him to death. It is not like that when we heard the noise of the villagers that---illegible---, we came out after opening the door and we together beat up the unknown criminal. It is not like that we did not say in the loud voice before the people of the village 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 Rai and destroyed it. Tappu Rai has no shop. 26. Tappu Rai has the tea shop at crossing in front of the Court of CJM, which has now destroyed. It is not like that when we asked the people to rob and damage the shop of Tappu Rai and Munna Rai, Mahendra and Upendra of his family and other members of his family came and they opposed our above intention and then we hatched the conspiracy and prepared a new application and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7.15 hours and he, along with Sub-Inspector Md. Azhar and K.K. Gupta, along with an armed force left for Bhadeopur Gola Road and reached there at 17.20 hours. On arriving there, Rajesh Prasad, S/o. Late Chhote Lal Mahto gave a written application (Exhibit 3/3) about the cognizable offence. On the basis of the said application, he took up the investigation of the case at the place of occurrence and during the course of investigation, the statement of the informant was taken again and a case was registered. Thereafter, the inquest report of Chhote Lal Mahto was prepared (Exhibit 4/2), so also the inquest report of the deceased O.P. Verma was prepared. Their bodies were sent for post mortem at 19.30 hours to Sadar Hospital, Munger along with a constable. The remains of the bomb were collected and seizure list was prepared (Exhibit 1/2), so also the blood stained soil was collected and the seizure list is at Exhibit No. 8. That the dead body of Chhote Lal Mahto was brought out of 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 the deceased Chhote Lal Mahto was blown away. The occurrence of second ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n another bomb attack. But in his cross examination, he has stated that he could not have seen the occurrence of the incident from his house which is 100 yards away. He has further stated that his statement was recorded by the police at the place of occurrence and on the day of occurrence at 08.00 in the night. But he had not told the police that the third bomb was thrown on the road which did not hit anyone. Soon thereafter, the people of the area gathered and the people got aggressive and tried to catch hold of both the miscreants. He has further admitted that he did not state that the bomb was thrown at Rajesh's shop where his father was sitting and the bomb hit him. 48. On a consideration of the aforesaid evidence, we find that PW-7, who is the informant in his evidence, has resiled from what he had initially stated to the Police even though he claims to be an eye-witness to the occurrence. It has been established that Chandra Bhanu Prasad, though a resident of the locality, was not present during the occurrence of the incident. Similarly, the presence of Dhappu Ram and Fantush Mandal is doubted by PW-8. In fact, the Investigating Officer/PW-9 has also corroborated the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ram, Mahendra Ram, Upendra Ram and Dhappu Ram had come to the shop of his father and indulged in abuse. h) Likewise, PW-8 had also not made any statement, as was being deposed in Court. In view of the above, the High Court held as under: The contradiction in the statement of the prosecution witnesses as stated during investigation and in the trial having been pointed out to them in the manner provided for in Section 145 of the Evidence Act, and corroborated by the Investigating Officer, Under Section 157 of the Evidence Act lends credence to the allegation of the defence that an entirely new case was sought to be made out by the prosecution for what was essentially a different manner and sequence of events. i) The police stated that they had arrived at the place of occurrence within 20 minutes of the incident i.e. at 5.20 pm which fact has been corroborated by PW-7, the informant and other prosecution witnesses. PW-7 denied any written report given to the police station at 9.00 pm. He stated that he had signed the written report prepared by PW-4 but was not aware of its contents. j) According to PW-7, PW-4, who is an advocate and is a cousin of PW-7, prepar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 gave written report to the police at 9 p.m., that he was sleeping at that time and unaware about it yet he stated that the report may have been given at 8.30 p.m. PW-7 on the other hand has stated that the written report was given to the police at 6 p.m., at the police station and had denied of having given any report to the police at 9 p.m. On the other hand, PW-9 who is IO in the matter stated that PW-7 gave him the written report immediately after he reached the place of occurrence. (vii) While the prosecution witnesses alleged throwing of three or more bombs, the Investigating Officer stated that he found signs only of two explosions; first one being at the betel shop of the deceased and the second one near M/s. Aditya Electronics, located 40-45 yards north of the site of the first explosion. 53. With regard to explosions which took place on the date of incident, the High Court has considered the evidence of PW-7, PW-1, and PW-9 and observed as under: This Court on consideration of the aforesaid material and nature of evidence is satisfied that the allegations against the Accused cannot be stated to have been proved beyond all reasonable doubts. The several incon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trial court assumed the role of a referee forgetting the important role that it had to play in the dispensation of justice dealing with the serious issue of a death sentence and life imprisonment affecting not only the liberty but also the life of a citizen. The subversion of the legal maxim presumed innocent till proved guilty to say the least was unfortunate. We are satisfied that the present case is a fit case for initiating proceedings of perjury against P.W. 7, Rajesh Prasad son of Late Chhote Lal Prasad. We, accordingly direct the trial court to initiate proceedings, hold inquiry in accordance with law and pass appropriate orders. 54. We have extracted the observations made by the High Court while reversing the judgment of conviction giving categorical reasons for doing so. We also observe that the Fast Track Court has failed to appreciate the evidence of PWs-1, 3, 4 and 7 in their proper perspective and has further failed to recognise the fact that PW-7/the Appellant herein did not at all support the case of the prosecution although he was the informant and hence, erroneously convicted the Accused and sentenced two of them with death penalty and the third Accus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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