REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1345 OF 2007
JAYANTA SIL
.. APPELLANT(S)
vs.
STATE OF ASSAM
.. RESPONDENT(S)
O
RDER
This is a statutory appeal arising out of the
judgment of the High Court dated 5th January, 2007.
The prosecution story is as under:
At about 10.00 p.m. on 28th August 1994 Jayanta Sil
the appellant and Dimbeswar Sil (since acquitted) were
returning from the house of Kripa Das after attending a
feast. They were also accompanied by the deceased Kandarpa
and as the three were near the house of the deceased on PWD
Road the appellant assaulted the deceased with a sharp
cutting weapon. Hearing the cries of the deceased, the
complainant, PW.1- Bhadrata Das, the wife of the deceased,
came out from her house and saw the accused running away.
Her shouts attracted several other persons to the spot
including Mridul Das-PW.5 and Daya Chand-PW.6 who too
saw the accused running away.
It also appears that soon after the incident
Biswajit Das-PW.2 and Uday Dutta-PW.3 also reached the
place from their houses some distance away and they too
were told by PW.1 as to what had transpired. The evidence
further is that Jayant, the appellant herein, rushed to the
house of Nisikanta-PW.11 in the same village and requested
him to let him stay for the night and when he left early
the next day, PW.11 saw that he had left behind a khukri
and a torch. The appellant and Dimbeshwar were accordingly
brought to trial for an offence punishable under Sec.302
read with Section 34 of the IPC. The Trial Court on a
consideration of the evidence held that the statement of
PW.1 could not be taken at its face value as there were
discrepancies in her statement made in the FIR vis.-a-vis.
the statement in Court and it appeared that she had not in
fact seen the incident nor had seen the accused running
away after committing the murder. Likewise it was held that
the statements of PW.5 and PW.6 could not be believed as
they were not eye-witnesses and were not clear as to the
exact place where the incident had happened as there
appeared to be some uncertainty as to whether it had taken
place outside the house of the deceased or on the road
opposite the gate. The Trial Court also opined that it was
not believable that an accused would hang around long
enough so that he could be identified by PWs 5 and 6 as
this was against normal human conduct. It was further held
that the story with regard to the recovery of a torch and
the khukry from the house of PW.11 could not be believed
more particularly as the weapon had not been sent to the
laboratory to find out if it bore any bloodstains.
The Trial Court accordingly acquitted the accused.
An appeal was thereafter taken to the High Court.
The High Court has, by the impugned judgment, upheld the
judgment of acquittal with respect to Dimbeswar Sil but has
reversed the judgment qua the appellant and convicted and
sentenced him herein for an offence punishable under
Section 302. The High Court has held that there was no
reason whatsoever to disbelieve PW.1 or PWs. 5 and 6 as
they had no animus against the accused. The High Court also
observed that positive prosecution story was that the
appellant had used a cutting weapon to cut the neck of the
deceased and the medical evidence was that the major
structures in the neck including the carotid artery and
jugular vein, the trachea etc. had been cut through and
through.
We have heard the learned counsel for the parties.
We see that PW.1 is the wife of the deceased. Admittedly
she had no animus against the appellant and had been
attracted to the place after hearing her husband's cries
for help. We have also seen the site plan and find that
the occurrence took place on the road virtually opposite
the house of the deceased. In this situation it would make
no difference if it was near the gate or on the main PWD
road as it is the admitted position that the incident had
happened right outside the house belonging to the deceased.
The presence of the PWs. 5 and 6 cannot also be doubted.
The deceased as well as these two witnesses had attended
the Shradh feast and the murder had taken place as all
three were returning from that place. We have also gone
through the evidence of PWs 5 and 6 and find that there is
no suggestion of any kind of animus or rancour between the
appellant and them. The statements of these three witnesses
are further corroborated by the statement of PWs 2 and 3 to
whom PW.1 had given the information and told them that the
appellant and Dimbeshwar had murdered her husband. The
statement of PW.11 is equally important even if the
recovery of the torch or the alleged murder weapon is ruled
out there is absolutely no doubt that his statement with
regard to the visit of the appellant to his house late at
night with a request that he be allowed to stay on cannot
be disbelieved. This was indeed a strange request as we
find that the appellant and PW.11 belonged to the same
village and there is no plausible explanation as to why the
appellant chose to stay for the night in the house of
PW.11 and not to return to his own house a short distance
away.
Mr. Soumyajit Pani the learned counsel for the
appellant has however cited Mahendra Pratap Singh vs. State
of Uttar Pradesh [(2009) 11 SCC 334] to contend that if two
views were possible on the evidence and the Trial Court had
taken one in favour of an accused the High Court would
ordinarily not be justified in interfering in the matter.
It has been pleaded that the Trial Court had on a deep
consideration of the evidence taken a decision and
acquitted the accused and a contrary opinion was thus not
called for. As against this learned State counsel has
pointed out that it was equally well settled that while
dealing with an appeal against acquittal, the High Court
was fully justified in reappraising the evidence and to
interfere if the view taken by the Trial Court was not
possible on the evidence and was on the contrary perverse
and not to do so would amount to a miscarriage of
justice, and that the interests of the accused as well as
the interest of the State and the prosecution must be
balanced in such matters.
From a perusal of the judgment of the Trial Court we
find that the view taken by the Trial Court was not
justified on the evidence. The Trial Court has completely
misread the implication of the evidence given by five
witnesses, three of them were virtually eye witnesses and
two of them being totally independent. The prosecution
evidence is further corroborated by the Doctor's evidence
that the neck had been almost severed from the body by a
cutting weapon such as a khukri.
Accordingly, we dismiss the appeal.
.................J.
(HARJIT SINGH BEDI)
.................J.
(C.K. PRASAD)
New Delhi,
August 4, 2010.