Head Note:
Circumstantial Evidence - Last seen theory - in the
absence of first link in the chain , the question of Last seen theory does not
arise . Merely because the High Court disagreed (without giving reasons why
it did so) with the reasonable and possible
view of the Trial Court, on a
completely independent analysis of the evidence on record, is not a
sound basis to set aside the order of acquittal given by the Trial
Court. In the absence of perversity, stupidity, incompetence , distorted
conclusions, No appellant court should disturb the acquittal order of trial
court
REPORTABLE
IN
THE SUPREME COURT OF INDIA
CRIMINAL
APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1490 OF 2008
Shyamal Saha & Anr.
....Appellants
Versus
State of West Bengal ....Respondent
J
U D G M E N T: Madan B. Lokur, J.
1. This appeal questions
the limits of interference by the High Court in an appeal against the acquittal
of an accused by the Trial Court. In our opinion, the High Court ought not to
have interfered in the appeal before it with the acquittal of the appellants by
the Trial Court.
Facts:
2. The sequence of events, as it has unfolded
from the evidence of the witnesses, is that on 19th May, 1995 a thermal plant
of the Calcutta Electric Supply Company had opened across the river Ganges in
Mauza Bhabanipur Char, District Hooghly, West Bengal.
3. Paritosh Saha was with his mother Bidyutprava
Saha (PW-5) at about 5.00/5.30 p.m. on 19th May, 1995. Thereafter, he and his nephew
Animesh Saha (CW-1) aged about 10 years went for a walk on the banks of the
river Ganges where they met Gopal Saha, with whom they struck a conversation.
At that time, the appellants Shyamal Saha and Prosanta @ Kalu Kabiraj also came
there and called Paritosh to go across the river to see the Char (island).
Animesh also expressed his desire to go to the Char but Shyamal asked him to
return home.
4. When the three of them (Paritosh, Shyamal and
Prosanta) were about to board Asit Sarkar’s boat, they were joined by Dipak Saha
(PW-6) and Panchu Sarkar (PW-11). The five of them then went across the river
Ganges and, according to Animesh, when they reached the other side of the
river, Dipak and Panchu went towards the thermal plant while Paritosh, Shyamal
and Prosanta went in a different direction towards the jungle. Thereafter, Animesh
came back to his house.
5. According to Bidyutprava Saha, at about 8.00
or 8.30 p.m. Shyamal and Prosanta came to her house and asked the whereabouts
of Paritosh.
6. According to Paritosh’s brother Amaresh Saha
(PW-1) at about 10.00 p.m. Shyamal and Prosanta came to his house and enquired
about Paritosh.
7. Early next morning on 20th May, 1995
Bidyutprava Saha noticed that Paritosh had not eaten his dinner which she had
kept for him. She mentioned this to Amaresh and also informed him that Shyamal
and Prosanta had come and met her the previous evening at about 8.00 or 8.30
p.m. During the course of this conversation, Animesh revealed to his father
Amaresh that he had seen Paritosh cross the river Ganges the previous evening
in a boat along with Shyamal and Prosanta.
8. On receiving this information Amaresh enquired
from Shyamal and Prosanta the whereabouts of Paritosh but they informed him
that they had seen him across the river with some boys. Later in the day, Amaresh
was informed by Dipak and Panchu that they had crossed the river along with
Paritosh, Shyamal and Prosanta. After crossing the river, Dipak and Panchu had
gone to see the thermal plant and the others had gone in another direction
towards the jungle. Dipak and Panchu pleaded ignorance of the subsequent
movements of Paritosh.
9. Later in the evening at about 7.30 p.m.
Amaresh Saha lodged a First Information Report regarding the disappearance of Paritosh.
10. Sometime in the morning of 21st May, 1995 the
corpse of Paritosh was found in the river tied to two iron chairs with a napkin
around his neck. The police were informed about the recovery of the dead body
and an inquest was carried out and the iron chairs and napkin were seized in
the presence of some witnesses. It was noticed that a part of Paritosh’s skin
was burnt perhaps due to pouring of acid.
11. On these broad facts, investigations were
carried out and Shyamal and Prosanta were charged with having abducted Paritosh
and thereafter having murdered him.
Decision
of the Trial Court:
12. In its judgment and order dated 29th July,
1998 the Trial Court held that neither the charge of abduction nor the charge
of murder was proved against Shyamal and Prosanta and therefore they were
acquitted. As far as the charge of abduction is concerned, that is not in issue
before us and need not detain us any further.
13. The acquittal by the Trial Court was primarily
in view of the absence of consistency in the testimony of Amaresh, Bidyutprava Saha,
Animesh, Dipak and Panchu. For example, it was observed that if Animesh had in
fact informed Amaresh and Bidyutprava Saha that he had gone to the banks of the
river with Paritosh, it would have been reflected in their testimony.
Similarly, Bidyutprava Saha did not say anything about Paritosh going to the
river although she saw him at about 5.00 or 5.30 p.m. on 19th May,
1995. The Investigating Officer, Sub-Inspector Debabrata Dubey (PW-16) had yet
another version of the events. His testimony indicated that many of the facts
stated in the oral testimony of the witnesses were not put across to him at any
time, suggesting considerable padding and embellishments in their testimony. As
such, it was not possible to lend credence to the testimony of the prosecution
witnesses and the accused were entitled to the benefit of doubt. Additionally,
the Trial Court noted that it was a case of circumstantial evidence and also
that there was no motive for Shyamal and Prosanta to have murdered Paritosh.
Decision
of the High Court:
14. Feeling aggrieved by their acquittal, the
State preferred an appeal before the Calcutta High Court against Shyamal and Prosanta.
The appeal was allowed by a judgment and order dated 11th March, 2008. The
decision of the Trial Court was reversed and they were convicted for the murder
of Paritosh and sentenced to imprisonment for life and a fine of Rs.5000/- each
and in default of payment to undergo rigorous imprisonment of one year each.
15. According to the High Court, the case of the
prosecution hinged, essentially, on the evidence of Dipak and Panchu, as well as
of Animesh. The High Court considered their evidence and held that all five
(Dipak, Panchu, Paritosh, Shyamal and Prosanta) crossed the river in a boat in
the evening at about 5.30 p.m. on 19th May, 1995. This was supported by the
testimony of Animesh who also wanted to go along with all of them but was
prohibited from doing so by Shyamal.
16. It was also held, on the basis of the post
mortem report given by Dr. P.G. Bhattacharya (PW-15) and his testimony that Paritosh
died soon after 5.30 p.m. on 19th May, 1995. The High Court came to this
conclusion on the basis of the doctor’s statement that the death took place
between 65 and 70 hours before he conducted the post mortem examination. Since
the post mortem examination was conducted at about 12.00 noon on 22nd May, 1995
working backwards, it appeared that Paritosh died soon after 5.30 p.m. on 19th
May, 1995.
17. Finally, the High Court held that Paritosh was
last seen with Shyamal and Prosanta and therefore they had to explain the events
that had occurred after they were last seen together. In the absence of any
explanation offered by them, the last seen theory would apply and it must be
held that Shyamal and Prosanta had murdered Paritosh.
Discussion
on the law:
18. Aggrieved by their conviction and sentence,
Shyamal and Prosanta have preferred this appeal. The primary submission made on
their behalf was to the effect that the High Court ought not to have interfered
in the acquittal by the Trial Court particularly, in a case of circumstantial
evidence. It was also submitted that the evidence on record points to the fact
that they were made scapegoats by the prosecution. Of course, this was opposed
by learned counsel for the State.
19. The crucial issue for consideration,
therefore, relates to interference by the High Court in an acquittal given by
the Trial Court. Recently, in Joginder
Singh v. State of Haryana (MANU/SC/1096/2013) it
was held, after referring to Sheo
Swarup v. King Emperor (AIR 1934 PC 227) that
“Before
we proceed to consider the rivalised contentions raised at the bar and
independently scrutinize the relevant evidence brought on record, it is
fruitful to recapitulate the law enunciated by this Court pertaining to an
appeal against acquittal. In Sheo
Swarup (supra), it has been stated that the High
Court can exercise the power or jurisdiction to reverse an order of acquittal
in cases where it finds that the lower court has "obstinately
blundered" or has "through incompetence, stupidity or
perversity" reached such "distorted conclusions as to produce a positive
miscarriage of justice" or has in some other way so conducted or
misconducted himself as to produce a glaring miscarriage of justice or has been
tricked by the defence so as to produce a similar result.”
Unfortunately, the paraphrasing of the
concerned passage from Sheo Swarup
gave us an impression that the High Court can reverse an acquittal
by a lower court only in limited circumstances. Therefore, we referred to the
passage in Sheo Swarup and
find that what was stated was as follows:
“There
is in their opinion no foundation for the view, apparently supported by the
judgments of some Courts in India, that the High Court has no power or jurisdiction
to reverse an order of acquittal on a matter of fact, except in cases in which
the lower Court has "obstinately blundered," or has "through incompetence,
stupidity or perversity" reached such "distorted conclusions as to
produce a positive miscarriage of justice," or has in some other way so conducted
itself as to produce a glaring miscarriage of justice, or has been tricked by
the defence so as to produce a similar result.”
The
legal position was reiterated in Nur
Mohammad v. Emperor (AIR 1945 PC 151)
after
citing Sheo Swarup and
it was held:
“Their
Lordships do not think it necessary to read it all again, but would like to
observe that there really is only one principle, in the strict use of the word,
laid down there; that is, that the High Court has full power to review at large
all the evidence upon which the order of acquittal was founded, and to reach
the conclusion that upon that evidence the order of acquittal should be
reversed.”
We are mentioning this only to dispel the
possibility of anyone else getting an impression similar to the one that we
got, though nothing much turns on this as far as this case is concerned.
20. The entire case law on the subject was
discussed in Chandrappa v. State of Karnataka
(2007) 4 SCC 415 beginning with perhaps the first case decided by this Court on
the subject being Prandas v. State.
AIR 1954 SC 36 It was held in Chandrappa as follows:
“(1) An appellate court has full power
to review, reappreciate and reconsider the evidence upon which the order of
acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no
limitation, restriction or condition on exercise of such power and an appellate
court on the evidence before it may reach its own conclusion, both on questions
of fact and of law.
(3) Various expressions, such as, ‘substantial
and compelling reasons’, ‘good and sufficient grounds’, ‘very strong
circumstances’, ‘distorted conclusions’, ‘glaring mistakes’, etc. are not
intended to curtail extensive powers of an appellate court in an appeal against
acquittal. Such phraseologies are more in the nature of ‘flourishes of
language’ to emphasise the reluctance of an appellate court to interfere with acquittal
than to curtail the power of the court to review the evidence and to come to
its own conclusion.
(4) An appellate court, however, must bear in
mind that in case of acquittal, there is double presumption in favour of the
accused. Firstly,
the presumption of innocence is available to him under the fundamental principle
of criminal jurisprudence that every person shall be presumed to be innocent
unless he is proved guilty by a competent court of law. Secondly, the accused having
secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed
and strengthened by the trial court. (5)
If two reasonable conclusions are possible on the basis of the evidence on
record, the appellate court should not disturb the finding of acquittal
recorded by the trial court.”
21. The principles laid down in Chandrappa were generally reiterated
but mainly reformulated in Ganpat
v. State of Haryana (2010) 12 SCC 59 though without reference to Chandrappa and by referring to
decisions not considered therein. The reformulation of the principles in Ganpat is as follows:
“(i) There is no limitation on the part of the
appellate court to review the evidence upon which the order of acquittal is
founded and to come to its own conclusion.
(ii) The appellate court can also
review the trial court’s conclusion with respect to both facts and law.
(iii) While dealing with the appeal
preferred by the State, it is the duty of the appellate court to marshal the entire
evidence on record and by giving cogent and adequate reasons may set aside the
judgment of acquittal.
(iv) An order of acquittal is to be
interfered with only when there are “compelling and substantial reasons” for doing
so. If the order is “clearly unreasonable”, it is a compelling reason for
interference.
(v) When the trial court has ignored the
evidence or misread the material evidence or has ignored material documents
like dying declaration/report of ballistic experts, etc. the appellate court is
competent to reverse the decision of the trial court depending on the materials
placed. (Vide Madan Lal v.
State of J&K
(1997) 7 SCC 677, Ghurey Lal v.
State of U.P.
(2008) 10 SCC 450, Chandra Mohan Tiwari v.
State of M.P.
(1992) 2 SCC 105 and Jaswant Singh v.
State of Haryana(2000)
4 SCC 484.)”
22. Undoubtedly, we are suffering from an overdose
of precedents but be that as it may, from the principles laid down, it appears
at first blush that the High Court is entitled to virtually step into the shoes
of the Trial Court hearing submissions of learned counsel and then decide the
case as a court of first instance. Perhaps this is not what is intended,
notwithstanding the broad language used in Chandrappa
and Ganpat.
Otherwise, the decision of the Trial Court would be a meaningless exercise and
this Court would become a first appellate court from a decision of the High
Court in a case of acquittal by the Trial Court. Realistically speaking,
although the principles stated are broad, it is the obligation of the High
Court to consider and identify the error in the decision of the Trial Court and
then decide whether the error is gross enough to warrant interference. The High
Court is not expected to merely substitute its opinion for that of the Trial
Court only because the first two principles in Chandrappa and Ganpat permit it to do so and
because it has the power to do so – it has to correct an error of law or fact significant
enough to necessitate overturning the verdict of the Trial Court. This is where
the High Court has to exercise its discretion very cautiously, keeping in mind
the acquittal of the accused and the rights of the victim (who may or may not
be before it). This is also where the fifth principle laid down in Chandrappa and Ganpat comes into operation.
Discussion
on facts:
23. Looked at from this perspective, it was
submitted by learned counsel for the State that there cannot be two reasonable
views of the events that took place. It was submitted that there was no doubt
that Paritosh crossed the river Ganges with Shyamal and Prosanta and they went
to a secluded and uninhabited place across the river. This was witnessed by
Dipak, Panchu and Animesh. Paritosh then went missing and his corpse was found
a couple of days later. It was submitted that on these facts there can be only
one conclusion, namely that Shyamal and Prosanta caused the death of Paritosh.
24. In this context, the evidence of Dipak,
Panchu, Animesh and the Investigating Officer assumes significance. Disputing
the testimony given by Dipak and Panchu in Court, the Investigating Officer
stated that when they were examined under Section 161 of the Criminal Procedure
Code they neither told him that they had gone to the opposite side of the river
nor that Shyamal and Prosanta had gone with Paritosh towards the jungle. There
was also no mention of the attendance of Animesh or the dress worn by Paritosh.
In other words, they did not mention any of the events said to have taken place
in their presence on the evening of 19th May, 1995. From this, it is quite
clear that the subsequent statements made by them on oath appear to be add-ons
and make believe. This casts serious doubt on their credibility.
25. An independent witness Swapan Kabiraj (PW-8)
who is supposed to have seen Dipak, Panchu, Paritosh, Shyamal and Prosanta
board the boat to cross the river, turned hostile and denied having made any
statement before the Investigating Officer. Snehalata Sarkar (PW-7), wife of
the boat owner Asit Sarkar also turned hostile and stated that their boat was,
as usual, tied to the ghat and she could not say whether it was taken by any
person on that date.
26. However, what is even more important is that
Animesh stated in Court that on the morning of 20th May, 1995 he had told his
father Amaresh and Bidyutprava Saha that he had seen the abovementioned five
persons cross the river in a boat the previous evening. He also stated that he
was taken by Amaresh to the police station and he had even mentioned this to
the police. However, Amaresh does not depose anything about having taken
Animesh to the police station. The Investigating Officer deposed that Animesh
had not been cited as a witness and “had it been known to me that Animesh is a
material witness who saw the victim together with the accused, during
investigation, he would have been cited as a witness in the charge sheet”. Therefore,
the possibility of Animesh having been tutored cannot be completely ruled out.
27. It is clear that there is considerable padding
in the testimony of the three crucial witnesses namely, Dipak, Panchu and Animesh
and there are unexplained additions made by them. In this state of the evidence
on record, the Trial Court was entitled to come to a conclusion that the
prosecution version of the events was doubtful and that Shyamal and Prosanta
were entitled to the benefit of doubt and to be acquitted. We also find from
the record that a number of independent witnesses have turned hostile and, as
mentioned above, three important witnesses have added much more in their oral
testimony before the Court than what was stated before the Investigating
Officer during investigations.
28. The High Court believed the testimony of Dipak
and Panchu and came to the conclusion that they had crossed the river along with
Paritosh, Shyamal and Prosanta. However, the High Court did not take into
consideration the view of the Trial Court, based on the evidence on record,
that it was doubtful if the five persons mentioned above boarded the boat
belonging to Asit Sarkar to cross the river as alleged by the prosecution. The
High Court also did not consider the apparently incorrect testimony of Animesh who
had stated that he had gone to the police station and given his version but
despite this, he was not cited as a witness. The version of Animesh was
specifically denied by the Investigating Officer.
29. When the basic fact of Paritosh having boarded
a boat and crossing the river with Shyamal and Prosanta is in doubt, the substratum
of the prosecution’s case virtually falls flat and the truth of the subsequent
events also becomes doubtful. Unfortunately, the High Court does not seem to
have looked at the evidence from the point of view of the accused who had already
secured an acquittal. This is an important perspective as noted in the fourth
principle of Chandrappa.
The High Court was also obliged to consider (which it did not) whether the view
of the Trial Court is a reasonable and possible view (the fifth principle of Chandrappa) or not. Merely
because the High Court disagreed (without giving reasons why it did so) with
the reasonable and possible view of the Trial Court, on a completely
independent analysis of the evidence on record, is not a sound basis to set aside
the order of acquittal given by the Trial Court. This is not to say that every
fact arrived at or every reason given by the Trial Court must be dealt with –
all that it means is that the decision of the Trial Court cannot be ignored or
treated as non-existent.
30. What is also important in this case is that it
is one of circumstantial evidence. Following the principles laid down in several
decisions of this Court beginning with Sharad
Birdhi Chand Sarda v. State of Maharashtra
(1984) 4 SCC 116 it is clear that the chain of events must be so complete as to
leave no room for any other hypothesis except that the accused were responsible
for the death of the victim. This principle has been followed and reiterated in
a large number of decisions over the last 30 years and one of the more recent
decisions in this regard is Majenderan
Langeswaran v. State (NCT of Delhi) and Another.
(2013) 7 SCC 192 The High Court did not
take this into consideration and merely proceeded on the basis of the last seen
theory.
31. The facts of this case demonstrate that the
first link in the chain of circumstances is missing. It is only if this first
link is established that the subsequent links may be formed on the basis of the
last seen theory. But the High Court overlooked the missing link, as it were,
and directly applied the last seen theory. In our opinion, this was a rather
unsatisfactory way of dealing with the appeal.
32. Under the circumstances, we are unable to
agree with learned counsel for the State and are of the opinion that there was
really no occasion for the High Court to have overturned the view of the Trial
Court which was not only a reasonable view but a probable view of the events.
33. Learned counsel for Shyamal and Prosanta
raised some issues such as the failure of the prosecution to examine Gopal Saha
and Asit Sarkar. He also submitted that there was no motive for Shyamal and
Prosanta to murder Paritosh. In the view that we have taken, it is not
necessary to deal with these submissions.
34. Learned counsel for the State relied on the
evidence of Dr. Bhattacharya to submit that Paritosh died between 65 and 70 hours
before the post mortem examination was conducted. As observed by High Court,
this placed Paritosh’s death soon after 5.30 p.m. on 19th May, 1995. The
significance of this is only with respect to the time of death and has no reference
to the persons who may have caused the death of Paritosh. The evidence of Dr. Bhattacharya,
therefore, does not take the case of the State any further.
Conclusion:
35. The view taken by the Trial Court was a
reasonable and probable view on the facts of the case. Consequently, there was no
occasion for the High Court to set aside the acquittal of Shyamal and Prosanta.
Accordingly, their conviction and sentence handed down by the High Court is set
aside. Their appeal against their conviction and sentence is allowed.
….…………………………..J.
(Ranjana
Prakash Desai)
….……………………….......J.
(Madan B. Lokur)
New
Delhi;
February
24, 2014
