Rajesh Prasad vs State of Bihar

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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.111­113 OF 2015
RAJESH PRASAD  …..APPELLANT(S) 
VERSUS
THE STATE OF BIHAR AND ANR. ETC.      ….RESPONDENT(S)
J U D G M E N T
NAGARATHNA J. 
These   appeals   have   been   filed   by   the   appellant   ­
informant (PW­7 Rajesh Prasad) assailing the judgment and
order dated 5th  August, 2009 passed by the High Court of
Judicature at Patna in Criminal Appeal Nos.714, 747 and 814
of 2008 by which the judgment of conviction dated 26th June,
2008 and order of sentence dated 30th June, 2008 passed by
the Additional District & Sessions Judge, Fast Track Court­V,
Munger, has been set aside by allowing the  aforesaid appeals
and by accordingly answering the Death Reference No.13/2008
and  consequently  acquitting all the accused. 
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2. The Court of Additional District & Sessions Judge, Fast
Track Court­V, Munger, (hereinafter referred to as the ‘Fast
Track Court’) vide its judgment dated 26thJune,2008 convicted
the respondents herein viz., Upendra Ram, Mahendra Ram and
Munna Ram. By order dated 30th June, 2021, the Fast Track
Court sentenced Upendra Ram to undergo imprisonment for
life with fine of Rs.5000/­ and in default of payment of fine he
was further to undergo rigorous imprisonment for one year for
the offence under section 302/34 read with section 120B of the
Indian Penal Code (for short, the ‘IPC’)  and also sentenced to
undergo rigorous imprisonment for one year for offence under
section 504 of IPC and further sentenced to undergo rigorous
imprisonment for ten years each for the offence under section
3/4 of the Explosive Substances Act, 1908 and ordered that
the   sentences   run   concurrently.   The   Fast   Track   Court
sentenced the accused viz., Munna Ram and Mahendra Ram to
death under sections 302/34 read with section 120B of IPC
and sections 3/4 of Explosive Substances Act, 1908, subject to
confirmation by the High Court. The Fast Track Court however
acquitted the other accused viz., Fantus Mandal, Dhappu Ram
and Chandrabhanu Prasad.
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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 (PW­7) 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
was seriously injured and he died. The accused, while fleeing
away, threatened that their action was a result of opposition by
the informant against the illicit sale of liquor by them and if
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anyone   again   obstructed   their   business,   they   would   face
similar consequences. Accused­Chandrabhanu Prasad helped
the accused­Munna Ram to flee from the spot. 
4. The informant had further stated that he was objecting to
the illegal sale of liquor by the accused and on account of
enmity and in pursuance of their common intention and object,
they had hurled bombs and killed the father of the informant
as well as others. 
5. On receipt of the said information, a case was registered
at Kotawali PS being Case No.136/2005 dated 10thMarch, 2005
under sections 302/34, 120B of IPC and section 3/4 of the
Explosive Substances Act, 1908 (hereinafter referred to as the
‘Act’) against the accused.  The police investigated the case and
submitted  the  chargesheet dated  7thJune,  2005  against the
accused before the Court of Chief Judicial Magistrate, Munger,
keeping investigation pending with regard to the other charges
for offences under sections 302, 120B, 504, 225 of IPC and
section 3/4 of the Act. On 8th June, 2005, the Chief Judicial
Magistrate, Munger, took cognizance of the alleged offences
against the accused and committed the case to the Court of
Sessions after complying with the provision of section 207 of
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the Code of Criminal Procedure (for short, the ‘Cr.PC’) vide
order dated 17th June, 2005. 
6.  The   case   was   transferred   to   the   Court   of   Additional
District Judge­I, Munger and later on, to the Fast Track Court
on   9th  December,   2005.   Thereafter,   the   charge   for   the
concerned offences was read over and explained to the accused
in Hindi to which they pleaded not guilty and claimed to be
tried. 
7. The prosecution examined altogether ten witnesses and took
note of Material Objects (MOs). Thereafter, statements of the
accused   under   section   313   Cr.PC   were   recorded.   All   the
accused denied the alleged occurrence and submitted that they
were innocent and had been falsely implicated. They contended
that there were dues in respect of liquor taken by Ashok Yadav
from the informant who was running an illegal liquor shop.
The said dues were demanded from Ashok Yadav for which
there   was   a   scuffle   between   them   and   the   family   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
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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 respondentsaccused 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 Fast­Track 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   Fast­Track   Court.   The   appellant­informant
PW­7 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   culpability   of   the   accused   which   has   not   been
properly appreciated by the High Court. 
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10. While drawing our attention to the evidence on record,
learned   counsel   for   the   appellant   submitted   that   the   High
Court   has   arrived   at   incorrect   conclusions   and   thereby
reversing the judgment of the Fast­Track Court. 
11. Learned counsel for the appellant further contended that
while acquitting the accused, the High Court has directed that
proceedings of perjury be initiated against the appellant herein
which was wholly unnecessary having regard to the fact that
the Fast Track Court had accepted the case of the prosecution
and on the basis of the evidence of the appellant herein as well
as other eyewitnesses had convicted the accused. 
12. Learned counsel for the appellant finally contended that
the impugned judgment of acquittal may be set aside and the
judgment of the Fast Track Court be restored as the accused
have committed serious offences under section 302/34 read
with section 120B of IPC as well as other sections resulting in
death of two persons, one being the father of the appellant as
well   as   another,   on   account   of   the   bombs   hurled   by   the
accused against the deceased. She submitted that the third
bomb which was hurled by an accused missed injuring any
person but that would not in any way lead to his acquittal. 
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13.  Per   contra,   learned   counsel   appearing   for   the
respondents­accused   supported   the   judgment   of   the   High
Court and contended that the High Court has rightly perceived
and assessed the evidence on record and as a result reversed
the   erroneous   judgment   of   the   Fast­Track   Court.   It   was
submitted that the Fast­Track Court failed to note that the
evidence on record did not prove the case of the prosecution
beyond   reasonable   doubt   vis­à­vis   the   accused   and   despite
that death penalty had been imposed on two of the accused
and life imprisonment on another accused which has been
rightly reversed by the High Court by a reasoned judgment.
Therefore,   the   impugned   judgment   would   not   call   for   any
interference at the hands of this Court as there is no merit in
these appeals. Hence, the appeals may be dismissed. 
14.  Having   heard   the   learned   counsel   appearing   for   the
respective   parties,   the   following   points   would   arise   for   our
consideration:
(a)   Whether   the   High   Court   was   justified   in
reversing   the   judgment   of   conviction   and
sentence   awarded   by   the   Fast­Track   Court,
thereby acquitting all the accused?
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(b) Whether the judgment of the High Court calls for
any interference or modification by this Court?
(c) What order?
15.  The   Fast­Track   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 PW­7
Rajesh Prasad­informant, appellant herein, against the illegal
liquor business of the accused. 
16. The Fast­Track Court also noted that the defence was
unable to substantiate their case that the tea shop of accused
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Dhappu   Ram   had   been   looted   by   the   informant   and   his
associates.  They  further  stated   that  there  were   disputes   in
respect of payment of prices of liquor by Ashok Yadav and as a
result the latter and his associates had exploded the bombs. 
17. The versions of PWs 1, 2, 3 and 4 who were eyewitnesses
as well as that of PW­7 i.e. the informant were accepted by the
Fast Track Court as being consistent with each other as their
ocular   testimony   proved   the   prosecution   case   beyond   any
reasonable   doubt.   Accordingly,   three   of   the   accused   were
convicted and sentenced as noted above.
18. The Fast Track Court  on considering  the evidence on
record held as under and came to the following conclusion:
(i) That PW­1, PW­3, PW­4 and PW­7 are related to
each other, they being the son­in­law, cousin and
sons   of   the   deceased,   Chhote   Lal   Mahto
respectively. PW­2 is  the shopkeeper of the PCO
booth which is the shop adjoining the betel shop of
the informant. PW­2 was also injured by a splinter
of   the   bomb   which   was   hurled   on   the   deceased
Chhote Lal Mahto who was in his betel shop. PW­8
also witnessed the occurrence. As such, PW­2 and
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PW­8 are independent witnesses. PW­5 is the doctor
who performed the post­mortem examination of the
deceased and PWs­9 and 10 are the Investigating
Officers (IOs) of the case. 
(ii) That totally three bombs were hurled resulting in
the death of Chhotey Lal Mahto and another person
and the third bomb exploded on the road. As a
result, the public became furious and caught hold
of an unknown person and assaulted him, which
resulted in his death. It had come in the evidence
that the said person was Ashok Yadav. 
(iii) That   the   name   of   Fantus   alias   Udai   Prakash
Mandal had not been found in the FIR and the
witnesses had not testified against his involvement
in the occurrence nor has there been any overt act
alleged against him. 
(iv) No overt act had been alleged against Dhappu Ram
and Chandrabhanu Prasad. 
(v) Consequently, Fantus Mandal, Dhappu Ram and
Chandrabhanu Prasad were not found guilty of any
offences alleged and they were acquitted. 
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(vi) Considering the evidence on record, it was found
that   Upendra   Ram,   Munna   Ram   and   Mahendra
Ram   were   guilty   and   they   were   convicted   and
sentenced as stated above by the Fast Track Court. 
19.  In the appeals filed by the accused and in the Death
Reference No.13/2008, the 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 co­accused 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.”  
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With the aforesaid observations, the High Court set aside
the judgment of conviction of the accused who were convicted
by the Fast­Track Court as well as sentence imposed upon
them and accordingly, allowed the appeals by acquitting all
the accused.
20.   Before proceeding further, it would be useful to review
the approach to be adopted while deciding an appeal against
acquittal by the trial court as well as by the High Court.
Section   378   of   the   Cr.P.C   deals   with   appeals   in   case   of
acquittal. In one of the earliest cases on the powers of the
High  Court in  dealing  with   an  appeal   against  an  order of
acquittal the Judicial Committee of the Privy Council in Sheo
Swarup vs. R. Emperor, AIR 1934 PC 227(2) considered the
provisions   relating   to   the   power   of   an   appellate   court   in
dealing   with   an   appeal   against   an   order   of   acquittal   and
observed as under:
“16. It cannot, however, be forgotten that in case of
acquittal, there is a 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 should be
presumed to be innocent unless he is proved to be
guilty by a competent court of law. Secondly, the
accused   having   secured   an   acquittal,   the
presumption   of   his   innocence   is   certainly   not
weakened   but   reinforced,   reaffirmed   and
strengthened by the trial court.
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But in exercising the power conferred by the Code
and before reaching its conclusions upon fact, the
High Court should and will always 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, a presumption certainly not weakened by
the fact that he has been acquitted at his trial; (3) the
right of the accused to the benefit of any doubt; and
(4) the slowness of an appellate court in disturbing a
finding of fact arrived at by a judge who had the
advantage   of   seeing   the   witnesses.   To   state   this,
however, is only to say that the High Court in its
conduct   of   the   appeal   should   and   will   act   in
accordance with rules and principles well known and
recognised in the administration of justice.”
It was stated that the appellate court has full powers to
review and to reverse the acquittal. 
21. In  Atley   vs.   State   of   U.P.,  AIR   1955   SC   807,   the
approach of the appellate court while considering 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 vs. 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
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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 reasons given by the court below in support of its
order of acquittal in its arriving at a conclusion on
those facts, but should also express those reasons in
its judgment, which lead it to hold that the acquittal
was not justified.”
The need for the aforesaid observations arose on account
of observations of the majority in Aher Raja Khimavs. State
of Saurashtra, AIR 1956 SC 217 which stated that for the
High Court to take a different view on the evidence “there must
also be substantial and compelling reasons for holding that the
trial court was wrong.”
22. M.G. Agarwal vs. State of Maharashtra, AIR 1963 SC
200 is the judgment of the Constitution Bench of this Court,
speaking through Gajendragadkar, J. (as His Lordship then
was). This Court observed that the approach of the High Court
(appellate court) in dealing with an appeal against acquittal
ought to be cautious because the presumption of innocence in
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favour of the accused  “is not certainly weakened 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   innocence   must   be   moderated   by   the
pragmatic need to make criminal justice potent and
realistic. A balance has to be struck between chasing
chance   possibilities   as   good   enough   to   set   the
delinquent   free   and   chopping   the   logic   of
preponderant   probability   to   punish   marginal
innocents.”
24. This   Court   in  Ramesh   Babulal   Doshi   vs.   State   of
Gujarat, (1996) 9 SCC 225, spoke about the approach of the
appellate court while considering an appeal against an order
acquitting the accused and stated as follows: 
“While   sitting   in   judgment   over   an   acquittal   the
appellate court is first required to seek an answer to
the question whether the findings of the trial court
are   palpably   wrong,   manifestly   erroneous   or
demonstrably unsustainable. If the appellate court
answers the above question in the negative the order
of acquittal is not to be disturbed. Conversely, if the
appellate court holds, for reasons to be recorded, that
the order of acquittal cannot at all be sustained in
view of any of the above infirmities it can then­and
then only­ reappraise the evidence to arrive at its
own conclusions.”
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The object and the purpose of the aforesaid approach is to
ensure   that   there   is   no   miscarriage   of   justice.   In   another
words,  there should  not be an  acquittal  of  the guilty or a
conviction of an innocent person. 
25. In  Ajit   Savant   Majagvai   vs.   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   has   to   consider  each   ground   on
which the order of acquittal was based and to
record its own reasons for not accepting those
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grounds   and   not   subscribing   to   the   view
expressed by the trial court that the accused is
entitled to acquittal.
(4) In reversing the finding of acquittal, the High
Court has  to   keep  in  view  the   fact  that  the
presumption of innocence is still available in
favour   of   the   accused   and   the   same   stands
fortified   and   strengthened   by   the   order   of
acquittal passed in his favour by the trial court.
(5) If   the   High   Court,   on   a   fresh   scrutiny   and
reappraisal of the evidence and other material
on   record,   is   of   the   opinion   that   there   is
another view which can be reasonably taken,
then   the   view   which   favours   the   accused
should be adopted.
(6) The High Court has also to keep in mind that
the trial court had the advantage of looking at
the demeanour of witnesses and observing their
conduct in the Court especially in the witnessbox.
(7) The High Court has also to keep in mind that
even at that stage, the accused was entitled to
benefit of doubt. The doubt should be such as a
reasonable   person   would   honestly   and
conscientiously entertain as to the guilt of the
accused.”
26. This   Court   in  Ramesh   Babulal   Doshi   vs.   State   of
Gujarat, (1996)  9 SCC 225 observed vis­à­vis the powers of
an appellate court while dealing with a judgment of acquittal,
as under: 
“7. … While sitting in judgment over an acquittal the
appellate court is first required to seek an answer to
the question whether the findings of the trial court
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are   palpably   wrong,   manifestly   erroneous   or
demonstrably unsustainable. If the appellate court
answers the above question in the negative the order
of acquittal is not to be disturbed. Conversely, if the
appellate court holds, for reasons to be recorded, that
the order of acquittal cannot at all be sustained in
view of any of the above infirmities it can then—and
then only—reappraise the evidence to arrive at its
own conclusions.”
27.     This   Court   in  Chandrappa   &   Ors.   vs.   State   of
Karnataka, (2007) 4 SCC 415, highlighted that there is one
significant   difference   in   exercising   power   while   hearing   an
appeal against acquittal by the appellate court. The appellate
court  would  not interfere  where  the  judgment impugned   is
based on evidence and the view taken was reasonable and
plausible. This is because the appellate court will 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
20
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”, “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
21
appellate court should not disturb the 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 aside the judgment of acquittal pronounced by the trial
court and restored the judgment of the trial court acquitting
the accused on reappreciation of the evidence. 
30.   The   circumstances   under   which   an   appeal   would   be
entertained by this Court from an order of acquittal passed by
a High Court may be summarized as follows: 
A) Ordinarily, this Court is cautious in interfering with an
order of acquittal, especially when the order of acquittal
has been confirmed upto the High Court. It is only in
rarest   of   rare   cases,   where  the   High   Court,   on   an
absolutely   wrong   process   of   reasoning   and   a   legally
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   jurisdiction   under   Article   136   of   the
Constitution.  [State   of   U.P.   v.   Sahai,   AIR   1981   SC
1442]
22
Such fetters on the right to entertain an appeal  are
prompted by the reluctance to expose a person, who has
been acquitted by a competent court of a criminal charge,
to the anxiety and tension of a further examination of the
case,   even   though   it   is   held   by   a   superior   court.
[Arunachalam v. Sadhananthan, AIR 1979 (SC) 1284]
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.
23
[State   of   Rajasthan   v.   Sukhpal   Singh,   AIR
1984 SC 207] 
For example, where direct, unanimous accounts
of   the   eye­witnesses,   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   UP   v.   Hakim
Singh, AIR 1980 SC 184]
c) Where   testimony   of   witnesses   had   been
disbelieved by the High Court, on an unrealistic
conjecture   of   personal   motive   on   the   part   of
witnesses to implicate the accused, when in fact,
the witnesses had no axe to grind in the said
matter. [State of Rajasthan v. Sukhpal Singh,
AIR 1984 SC 207] 
d) Where dying declaration of the deceased victim
was rejected by the High Court on an irrelevant
ground that they did not explain the injury found
on   one   of   the   persons   present   at   the   site   of
24
occurrence   of   the   crime.  [Arunachalam   v.
Sadhanantham, AIR 1979 SC 1284] 
e) Where   the   High   Court   applied   an   unrealistic
standard of ‘implicit proof’ rather than that of
‘proof   beyond   reasonable   doubt’   and   therefore
evaluated   the   evidence   in   a   flawed   manner.
[State   of   UP   v.   Ranjha   Ram,   AIR   1986   SC
1959]
f) Where   the   High   Court   rejected   circumstantial
evidence, based on an exaggerated and capricious
theory,   which   were   beyond   the   plea   of   the
accused;    [State   of   Maharashtra   v.
ChampalalPunjaji  Shah,   AIR  1981   SC  1675]
or  where   acquittal   rests   merely   in   exaggerated
devotion to the rule of benefit of doubt in favour of
the accused. [Gurbachan v. Satpal Singh, AIR
1990 SC 209].
g) Where the High Court acquitted the accused on
the ground that he had no  adequate motive to
commit the offence, although, in the said case,
there was strong direct evidence establishing the
guilt   of   the   accused,   thereby   making   it
25
unnecessary on  the  part of  the  prosecution  to
establish   ‘motive.’  [State   of   AP   v.   Bogam
Chandraiah, AIR 1986 SC 1899]
ii) Where acquittal would result is gross miscarriage
of justice:
a) Where   the   findings   of   the   High   Court,
disconnecting   the   accused   persons   with   the
crime, were based on a perfunctory consideration
of evidence,  [State  of  UP v. Pheru Singh, AIR
1989   SC   1205]  or   based   on   extenuating
circumstances   which   were   purely   based   in
imagination   and   fantasy.  [State   of   Uttar
Pradesh v. Pussu 1983 AIR 867 (SC)] 
b) Where   the   accused   had   been   acquitted   on
ground of delay in conducting trial, which delay
was   attributable   not   to   the   tardiness   or
indifference of the prosecuting agencies, but to
the   conduct  of   the   accused   himself;   or  where
accused had been acquitted on ground of delay
26
in conducting trial relating to an offence which is
not of a trivial nature. [State of Maharashtra v.
ChampalalPunjaji Shah, AIR 1981 SC 1675]
[Source : Durga Das Basu – “The Criminal Procedure
Code, 1973” Sixth Edition Vol.II Chapter XXIX]
31.  Bearing   in   mind   the   aforesaid   discussion,   we   shall
consider the evidence on record.
32.  PWs­1, 3, 4 and 7 are related to each other and they are
the son­in­law, cousin and sons of the deceased Chhote Lal
Mahto,   respectively.   PW­1   in   his   examination­in­chief   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
27
Ashok Yadav and started beating him, as a result of which, it
was   “heard”   that   he   had   died.   However,   in   his   crossexamination,   PW­1   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 (PW­7) or not. He has feigned ignorance about anything
that happened before the incident. He has also stated that the
deceased   Chhote   Lal   Mahto   is   his   father­in­law.   He   has
deposed that due to the explosion of the bomb, the area was
covered with smoke and the Betel shop was not visible.  He has
also admitted that in his statement to the Police, he had stated
that Mahendra Ram, Upendra Ram and Dhappu Ram came to
his shop and started abusing his father­in­law.   Chhote Lal
Mahto pleaded not to do so and also not to sell illicit liquor.
That after abusing, they went away and returned ten minutes
later.   However, he has admitted that he does not remember
whether he has stated before the Police that Upendra Ram
started shouting and directed Mahendra Ram to get hold of the
deceased and after that, Mahendra Ram threw a bomb.  He has
further stated that it is wrong to suggest that his father­in­law
and other persons died due to hurling of bombs by Ashok
Yadav and other unknown persons. 
28
33. PW­2/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., he was at the booth.   That there was an altercation
between Rajesh Prasad (PW­7) and Mahendra Ram, Upendra
Ram and Dhappu Ram.   That Munna Ram threw a bomb at
Chhote Lal Mahto's betel shop which hit him on his head and
as a result of which his head was blown off. That PW­2 also
came in contact with the splinters of the bomb and was injured
as a result of the same. That he was baffled after seeing the
dead body of Chhote Lal Mahto and left the spot after closing
his shop. However, during cross examination he has stated
that he left the spot thirty minutes after the explosion. 
34. He has also admitted that he is under police security as
he has been threatened by the accused that if he deposes
against them, he must be ready to face the consequences. That
is why he went to the police station the previous evening and
has deposed under police security. He has stated that he does
not recognise Uday Prakash Mandal who was present in the
Court.   PW­2 has stated that he is a tenant in the house of
Rajesh, the informant and that he signed the affidavit that was
prepared   based   on   his   statements   which   he   had   made   as
29
“advised” by his advocate. He has also admitted that he had
not seen Rajesh, Naresh or any of their family members beating
Ashok Yadav.  That the people left the scene of occurrence 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. PW­3 / 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 (PW­7)
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.
30
He does not know what happened thereafter.   He is also not
aware  as  to   who  else  signed  the   seizure  list on  which  his
signature was found.  While he identified the accused Munna
Rai,   Mahendra   Rai,   Upendra   Rai,   Happu   Rai,   Bhanu   Ji
(Chandrabhanu Prasad), he did not recognise another person,
who was one among the accused. He had already stated that
he   did   not   see   Chandrabhanu   Prasad   at   the   place   of   the
occurrence.  
36. In his cross­examination, he has stated that there is no
personal enmity with the accused and his family members.  In
fact,   there   was   "Nyota   Pehani"  (invites   exchanged)   between
their families.  He has also denied that there was any quarrel
between him and Ashok Yadav and others such as Munna Rai.
He has also denied that he and his family members beat up
Ashok Yadav and others, as a result of which they came and
threw a bomb in anger.  He has also denied Happu's tea shop
was looted on the day of occurrence.  He has also denied that
the police came at the place of occurrence within five minutes.
That the Station House Officer, Kotwali P.S. did not record his
Fardbayan  at   that   time,   but   he   took   statement   of   Rajesh,
Umesh, other villagers and PW­3.   That the Daroga did not
write Fardbayan in his presence, but took his signature on a
31
plain paper and he does not know what was written in the
application on the same.   He has also stated that he is not
aware of what was written in the application to register FIR
given   by   his   brother   as   he   was   asleep   when   such   an
application was made.  
That, in his statement to the police, he has stated that
Munna Rai and unknown persons came to his betel shop and
started hurling abuses. That he does not remember whether he
had told the Police that bombs were blasted by the accused. 
37. Umesh Prasad Rai is PW­4 who has spoken about the
abuses of Mahendra Rai, Upendra Rai, Munna Rai, Dhappu
Rai to the effect that whoever interfered with or obstructed
their illegal work would be blown away by a bomb.  Munna Rai
then threw a bomb at the betel shop in which Chota Lal Mahto
was   sitting   and   as   a   result   of   which,   his   head   blew   up.
Mahendra Rai then threw a second bomb which hit a passerby,
O.P. Verma who was standing near M/s. Aditya Electronics
and the third bomb was blasted by Upendra Rai which fell on
the road and exploded.  Thereafter, he went near the body of
Chhote Lal Mahto and kept crying.  On hearing the sound of
the bombs, several people gathered at the place of occurrence.
32
That the inquest report of Chhote Lal Mahto was made before
him and he had signed it. 
38. In his cross­examination, 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  Fardbayan  was   not   in   his   handwriting   and   that
though he is an advocate, before signing the Fardbayan 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 statement.  That, when the first bomb was blasted
33
there was a stampede and he does not remember whether the
shop keepers started shutting down their shops as there was
much darkness.  That he has not read the supervision note of
SP   and   DSP.     He   has   no   knowledge   that   SP   had   given
directions for recovering illicit liquor from the house of Rajesh,
etc. 
39. PW­7/Rajesh Prasad is the informant who is the son of
the deceased Chhote Lal Mahto and the appellant herein.  In
his examination­in­chief, he has stated that on 10.03.2005 at
about 05.00 p.m., he was at the door of his house and he saw
Mahendra   Rai,   Upendra   Rai   and   Munna   Rai   and   other
unknown persons come near his house, threatening that they
would blow up his entire family with a bomb.   Immediately,
Munna Rai threw a bomb carried by him on his father Chhote
Lal Mahto who was sitting in his betel shop and the back
portion of his father's head blew away resulting in his instant
death.   Thereafter, Mahendra Rai threw another bomb near
M/s. Aditi Electronics which hit O.P.Verma, a passerby, as a
result of which his head blew away and he also died on the
spot.  Then Upendra Rai threw the bomb which fell on the road
and exploded.   The accused threatened them once again and
fled the scene.  That the reason behind the incident is that the
34
accused were carrying on illegal business of liquor and he and
his family members opposed the same and hence, there was a
conspiracy and a common intention in pursuance of which his
father was killed. That he filed a written complaint under his
signature at the police station (Exhibit No.2/2).   The Death
Review Report of the dead body of his father was prepared in
his presence and he had signed it (Exhibit No.4/1).   He also
identified six accused persons present in the Court. 
40. In his cross­examination, he has stated that he did not
see Chandrabhanu Prasad at the place of the incident.  He did
not see Dhappu Rai from the start to the end of the incident.
That the written complaint which he had prepared was read
over and some of it was heard. He did not read it completely.
The complaint was made in the police station in the evening at
06.00 p.m.  That he had engaged a private lawyer to present
his case.  That the first information report was not read over to
him. That he does not know completely as to what is written in
the first information report.  He also does not know as to what
he had 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
35
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 Fardbayan or whether
the statements of Upendra, his brother or his family members
were recorded by the police on the same day or not, but his
statement was recorded. 
42. Further,   in   his   cross­examination,   PW­7   has   further
denied that he had made any statement before the inspector,
SP or DSP that before the incident at about 04.00 to 04.30
36
p.m., the accused abused the villagers in un­parliamentary
language and when they could not tolerate it any more, they
came   out   of   the   house   and   abused   them.     The   accused
threatened   and   went   away.   He   also   denied   making   any
statement to the effect that Upendra Rai exploded the bomb
which blew up after striking the 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.   Aditi
Electronics, which hit O.P. Verma, a passerby and he died on
the spot.  He had also admitted that he does not recall whether
he had got recorded in his Fardbayan with the police that while
running away, one of the accused was caught hold of by the
people and was nearly beaten to death. He has further stated
that he does not recall any other aspect of the case. For better
appreciation   of   the   same,   it   would   be   useful   to   extract
paragraph 21 of his deposition as under:
“21. I do not recall that whether I had got recorded
in my Fard Beyan with the Police that while running
away, one accused was caught by the people and
after giving him beatings put him almost to 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,   who   was   freed   by   Chandrabhan   and
brother of Munna Rai and he ran away.   I do not
recall that I had stated that then Chandrabhan and
Tappu said that our work is finished now and they
ran away from there.   It is not like that Mahendra,
Upendra   and   Munna   have   not   committed   the
37
incident and therefore, I am saying every time that I
do not know."
Further, in paragraph Nos.25 and 26, PW­7 the informant
(the appellant) has stated as under:
"25. It is not like that my brother, brother­in­law,
Umesh   and   I   together   beat   up   the   unknown
criminals very badly near junction turn and they got
annoyed and one of them said that just stay here we
are   coming   back   in   few   minutes   and   then   they
exploded the bombs.  It is not like that just minutes
after, criminals came there with bombs and while
abusing to kill me, my brother, Umesh and brotherin­law and then we ran towards our house to save
our life and then they threw the bomb, which fell
near Aditi Electronics 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
38
and   prepared   a   new   application   and   submitted   it
with the Police Station in night at 9.00 pm in order to
implicate them."
In his further cross­examination, in paragraph 29, PW­7
he has stated as under:
"29. …… I could not say that any pellet of the bomb
hit any passerby and person in traffic.  It just hurt O.
P. Verma only.  I did not make any such statement
before the Police and DCP that in total five bombs
were exploded.  It is not like that I said that in total
five bombs were exploded."
With regard to his statements before the DSP, PW­7 has
categorically stated as under:
"31. My statement was not recorded before the DSP
Sahab.   Again stated that I do not know whether I
made the statement before the DSP Sahab or not.  I
do not know that I request the SP in the protest
petition   to   handover   the   investigation   to   some
Superior Officer.  SP had gone for supervision or not,
I cannot tell anything in this regard.
32. It is not like that on the order of DIG, SP had
carried   out   the   inspection   of   the   scene   of   crime
personally.  I cannot tell anything in this regard.  It is
not like that in order to conceal the truth  of the
incident,   I   am   stating   that   I   am   illiterate   and
concealing the fact regarding inspection carried out
by SP Sahab.
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   when   Munna   came   for   his
rescue, we also beat up him and then he ran away
from there to save his life. (Objected to)."
39
With regard to the aspect of bombs being hurled, PW­7 at
paragraphs 35 and 36 has stated as under:
"35. It is incorrect to state that when first
bomb exploded, stampede took place in the
traffic   and   people   started   concealing
themselves   in   order   to   save   their  life   and
shop started closing and we after saving our
life ran away from there.   It is incorrect to
state that thereafter Ashok Yadav threw the
bomb on my Pan Shop in its explosion my
father had died and thereafter people of the
village caught the hold of Ashok Yadav and
beat up him till he died.
36. It is incorrect to state that quarrel took
place   with   Ashok   Yadav   on   demanding
balance amount from him and he was beaten
up and due to above reason, he exploded the
bombs."
43. PW­9/Mani Lal Sahwas was the Sub­Inspector posted at
P.S. Kotwali, Munger, on 10.03.2005.   He has stated that he
received information through telephone about the incident at
about 17.15 hours and he, along with Sub­Inspector 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
40
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 blast was approximately 40 to 45 yards towards the
north   of   the   betel   shop   of  the   deceased,   near   M/s.   Aditya
Electronics on the footpath.   The deceased was identified as
Om Prakash Verma, a tea seller.  Similar seizures were made at
the scene of occurrence. 
44. He   further   stated   that   Santosh   Kumar   Patil   and   Anil
Mahto gave their statements on the same day.   The accused
were absconding.   On the same day, the statements of other
persons were recorded and on 12.03.2005 at about 06.40 a.m.,
the   accused   Munna   Rai   and   Dhappu   Rai   were   arrested.
41
Subsequently, on 18.04.2005, the investigation was transferred
to another officer.  
45. In his cross­examination, the said witness has stated that
Rajesh Prasad, the informant, did not state about Mahendra
Rai   and   Uppendra   Rai   blasting   bombs.     Referring   to   the
Fardbayan that was recorded at the place of occurrence, PW­9
has stated as follows: That the informant’s statement does not
record that Mahendra Rai, Uppendra Rai, Dhappu Rai were
present; Instead, he has stated that Munna Rai went home to
bring bombs and at that time, his brother was also there. That
Umesh Prasad did not say that he was at his gate at the time
when Munna Rai, Mahendra Rai, Uppendra Rai and Dhappu
Rai  were abusing and saying that whoever objects to  their
illegal activity would be blown up. That Umesh Prasad did not
mention in his statement that the second bomb was blown by
Mahendra Rai which hit a passerby by name O.P.Verma who
was standing near M/s. Aditya Electronics and his head was
blown   away.     Similarly,   there   was   no   statement   that   third
bomb was blasted by Mahendra Rai, which fell on the street
and made a loud noise.
42
46. Also, in the Fardbayan as well as in his statement, Rajesh
Prasad, the appellant herein, had not stated that Munna Rai,
Uppendra Rai, Mahendra Rai and Dhappu Rai came near his
father's betel shop and started abusing and upon retaliation by
his father, there was heated argument and they threatened to
blow him up with a bomb.
47. PW­8 /Santosh Kumar Patel, in his examination­in­chief
has stated that on 10.03.2005 at about 05.00 p.m. he was
standing near his gate and he saw the accused and Chhote Lal
Mahto engaged in indecent and foul abuses and heard threats
of the accused to blow up the family of Chhote Lal Mahto with
bombs and further, that Chhote Lal Mahto's head was blown
up by Munna Rai. That O.P. Verma died in 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
43
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
PW­7, 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 eye­witness 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 PW­8.  In fact, the Investigating Officer / PW­9 has
also corroborated the fact that PW­7 had not stated anything
about the bombs being thrown by Mahendra Ram, Upendra
Ram and that there was no mention of Dhappu Ram.  In the
deposition of PW­3, there has been no mention of Dhappu
Ram, Munna Ram and Mahendra Ram as also in the evidence
of PW­2.  Further, PW­4 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 PW­8 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. 
44
49. On the basis of the aforesaid evidence, the High Court,
during the course of its reasoning, has come to the following
conclusions: 
a) The written report is specific but it attributes a trivial
role to Chandrabhanu Prasad who was accompanied
by   Dhappu   Ram   and   others.   On   the   orders   of
Chandrabhanu   Prasad,   three   bombs   were   thrown.
Chandrabhanu Prasad freed co­accused Munna Ram
when he was apprehended. 
b) PW­7,   the   informant,   was   an   eyewitness   to   the
occurrence. In his cross examination, he stated that
he   had   never   seen   Chandrabhanu   Prasad   and
Dhappu Ram, who were residents of the same locality
and were well known to him, present at any time
throughout the occurrence. He also refused to identify
Fantus   Mandal   whose   name   arose   during
investigation. 
c) PW­2   stated   that   Chandrabhanu   Prasad   was   a
resident of the locality and was known to him but was
not present during the entire occurrence. To the same
effect is the statement of PW­3 and PW­4. PW­8 also
45
stated that Dhappu Ram and Fantus Mandal were not
present. 
d) However, PWs 1, 2, 3 and 4 spoke about the presence
of   Dhappu   Ram   and   gave   his   name   in   their
statements under section 161 of Cr.PC. 
e) PW­9, the Investigating Officer, has stated that the
informant in his statement under section 161 Cr.PC
had not stated anything about throwing of bombs by
Mahendra Ram and Upendra Ram and neither had he
named Dhappu Ram. 
f)   That during the course of the trial, PW­3 had not
named   Dhappu   Ram,   Munna   Ram   and   Mahendra
Ram and PW­2 had likewise not named Munna Ram,
Mahendra Ram, Upendra Ram and Dhappu Ram. 
g) PW­7   had   not   stated   anything   about   any   accused
being apprehended and beaten up. In his restatement
also, he did not state that Munna Ram, Mahendra
Ram, Upendra Ram and Dhappu Ram had come to
the shop of his father and indulged in abuse. 
h) Likewise, PW­8 had also not made any statement, as
was being deposed in Court. 
In view of the above, the High Court held as under :
46
“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 PW­7,
the informant and other prosecution witnesses. PW­7
denied any written report given to the police station at
9.00 pm. He stated that he had signed the written
report prepared by PW­4 but was not aware of its
contents.
j)  According to PW­7, PW­4, who is an advocate and is a
cousin   of   PW­7,   prepared   a   written   report.   PW­7
admitted that he is an attesting witness to the FIR but
denied full knowledge or reading of the same before
signing. 
k)  Similar is the denial by PW­8, a relative of PW­7. PW­8
is also an advocate and an attesting witness to the
written report. 
47
50. On the aforesaid evidence the High Court observed as
under :
“They were not rustic witnesses but were practicing
advocates fully aware of the nature and importance
of the documents they were signing. It is not possible
to   accept   their   contention   that   they   signed   it
unaware of the full contents. It raises serious doubts
that they were attempting to conceal something.” 
51. With regard to the written report, the High Court has
noted from the evidence as under :
“There is no explanation for this delay, though he
could be presumed to be present at the Police Station
when   the   written   report   was   handed   over   to   the
police.” 
52. The High Court has also noted flaws in the investigation of
the   case   and   in   the   evidence   of   the   prosecution   witnesses
which are culled out as under: 
(i) PW­7 said  that PW­4 drew up the  written  report
while PW­4 denied the same. 
(ii) While PW­1 and PW­3 were related to the deceased
and signed the seizure list immediately after the
occurrence, yet PW­3 had stated that he was not
aware of the other signatory to the seizure list. 
(iii) The statement of PW­1, who was a witness to the
seizure list as well as an eyewitness , was recorded
48
by the police one and half months later with no
explanation either by the witness or by the police. 
(iv) Similarly, statement of PW­4 who is an eyewitness
and a witness to the inquest report of the deceased
and who is stated to have drawn up the written
report given to the police, was recorded by the police
after two months and twenty days. The High Court
has noted that there is no explanation for the delay,
though he could be presumed to be present at the
Police Station when the written report was handed
over to the Police. 
(v) PW­2, the shop owner of the PCO booth adjoining
the betel shop of the deceased, was also allegedly
injured during the occurrence but there is no injury
report. 
(vi) The contradiction in the evidence of PW­3 is noted
as under :
”That PW­3 has stated that the police
came within 20 to 25 minutes and took
the statement of the informant, PW3 and
others, but he has stated that PW­7 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.
PW­7 on the other hand has stated that
the written report was given to the police
49
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, PW9 who is IO in the matter stated that
PW­7   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
40­45 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 PW­7,
PW­1, and PW­9 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   inconsistencies,   contradictions   in   the
statement   of   the   witnesses   and   other   necessary
materials leave this Court satisfied that they have
attempted to conceal more than they have sought to
reveal   of   the   occurrence.   A   different   manner   and
sequence   of   the   occurrence   appears   to   have   been
presented by the prosecution for their convenience in
a truncated manner implicating those desired and
exonerating those against whom the allegations were
originally made also. There is not a semblance of an
explanation   for   exonerating   those   earlier   accused
with a primal role and those with regard to whom no
50
statement   was   made   before   the   Police.   All   these
factors cast a serious doubt on the prosecution case.
The   informant,   in   Court,   has   given   up   the   entire
genesis and the manner of occurrence when the two
co­accused   have   been   exonerated.   The   informant
having implicitly accepted false implication, cannot
be trusted of telling the truth. The principle of falsus
in uno, falsus in omnibus  has no application in the
facts of the case, when the prosecution has itself
knocked   out   the   basis   edifice   of   its   own   case   as
distinct from peripheral issues.
The prosecution despite the nature of evidence given
by its witnesses, did not consider it necessary to reexamine them under Section 137 of the Evidence Act
or   cross­examine   them   under   Section   154   of   the
same.
The illicit liquor trade rivalry revealed during trial
between   the   two   sides,   leaves   this   Court   satisfied
that in the facts and circumstances of the case, the
charge cannot be stated to have been proved beyond
all   reasonable   doubt.   On   the   contrary,   the
prosecution   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   issues   inverted   the   law   to   hold   that   the
defence was based on surmises and conjectures to
hold the appellants guilty and there could not be two
views of the occurrence to grant any benefit to the
accused. And all this, while unquestionably granting
acquittal   to   Chandra   Bhanu,   Dhappu   Ram   and
Fantus as a case of no evidence. This Court finds it
difficult to uphold the conviction let alone the death
sentence.
The manner in which the trial proceeded as noticed
above,   leaves   the   impression   that   the   prosecution
witnesses considered the  court room as  a playing
field   for   a   friendly  match.   Unfortunately,   the   trial
court assumed the role of a referee forgetting the
51
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 PWs­1, 3, 4
and 7 in their proper perspective and has further failed to
recognise the fact that PW­7/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.   In our view, the High
Court was, therefore, justified in reversing the judgment and
order of conviction passed by the Fast­Track Court.
52
55. It is also noted that the State has not filed any appeal
against the judgment and order of acquittal passed by the High
Court. 
56. Having re­appreciated the evidence of the witnesses, we
find   that   the   High   Court   was   justified   in   reversing   the
judgment of conviction and sentencing the two of the accused,
namely Munna Ram and Mahendra Ram with death penalty
and imposing Upendra Ram to undergo life imprisonment and
instead acquitting all the accused.  
57.  Further, the High Court has stated that this is a fit case
for initiating proceedings of perjury against the appellant (PW7)   herein.   No   doubt,   the   appellant   herein   who   was   the
informant did not at all support the case of the prosecution
during  trial   and   as   a  result,   the  High   Court   acquitted   the
accused.     However,   having   regard   to   the   facts   and
circumstances of these cases and bearing in mind that there
were two deaths in the incident that occurred on 10th March,
2005 which has not been proved beyond reasonable doubt, we
set aside only that portion of the impugned judgment and order
directing   the   trial   court   to   initiate   proceedings   of   perjury
53
against   the   appellant   herein.   We   affirm   the   rest   of   the
judgment and order of acquittal passed by the High Court. 
58. The appeals are  allowed in part  to the aforesaid extent
only.
……………………………..J.
[L. NAGESWARA RAO]
…………………………….J.
[B.R. GAVAI]
……………………………J.
[B.V. NAGARATHNA]
NEW DELHI;
7
th JANUARY, 2022. 


Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

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