Rajesh Prasad vs State of Bihar

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.

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.

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

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

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

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.

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.

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?

(b) Whether the judgment of the High Court calls for

any interference or modification by this Court?

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

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

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.

(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.”

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.

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

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

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.”

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

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

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

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

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]

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.

[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

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

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

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

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.

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

“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.

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

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.

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

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

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

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

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

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

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)."

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

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.

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.

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

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.

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

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 :

“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.

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

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

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

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

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.

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

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;

th JANUARY, 2022.

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Rajesh Prasad vs State of Bihar

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