GOLBAR HUSSAIN & ORS. Vs. STATE OF ASSAM & ANR.
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Crl.), 181 of 2013, Judgment Date: Apr 28, 2015
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 181 OF 2013
Golbar Hussain and Ors. … Appellants
:Versus:
State of Assam and Anr. … Respondents
J U D G M E N T
Pinaki Chandra Ghose, J.
1. This appeal is preferred by the appellants against the judgment and
order dated 31.08.2012 passed by the Gauhati High Court in Criminal
Appeal No.165 of 2004 whereby the High Court has allowed the appeal
filed by the State and convicted all the appellants under Section 302
read with Section 149 of the Indian Penal Code (“IPC”) and sentenced
them to undergo rigorous imprisonment for life and to pay a fine of
Rs.10,000/- each.
2. The brief facts of the case, as per the prosecution story, are that on
5.1.2001 at about 6:10 p.m. at Chapra Beparipara which is under Chapar
Police Station, the accused persons formed an unlawful assembly and in
prosecution of the common object of such assembly, committed the
murder of Hasen Ali. Amir Hussain, son of the deceased (PW-3) lodged
an Ejahar about the incident at Chapar Police Station on 5.1.2001 at
about 10:00 p.m. On receipt of the Ejahar, F.I.R. No.3/2001 was
registered by Chapar Police Station and started investigation. The
police arrived at the place of occurrence and called the Executive
Magistrate who prepared the inquest on the dead body and the inquest
was sent for post-mortem examination to Dhubri Civil Hospital. The
police found one bag containing one dagger and two hand-made bombs
lying near the dead body. After investigation, charge-sheet was
submitted against the accused persons under Sections 147, 148, 149,
341 and 302 of the IPC. On 29.6.2001, the said charge-sheet was
received by the Chief Judicial Magistrate, Dhubri. Since the offence
was triable exclusively by the Court of Sessions, the Chief Judicial
Magistrate by his order dated 15.3.2002 committed the case to the
Court of Sessions for trial. During the course of trial the
prosecution examined 10 witnesses to bring home the charges levelled
against the appellants. The defense adduced no evidence and took a
plea of total denial.
3. The Trial Court on a careful scrutiny of the evidence found that the
statements of PW-4 & PW-5 were contradictory which created doubt as to
the presence of these two witnesses at the place of occurrence.
Jamaluddin (PW-1) deposed that about 6 months ago, when he was
returning from the Pharmacy, he met Shah Alam who said that his
brother had been killed in the market, but he did not mention the name
of any person. The incident took place in the market place where there
were about 50 shops on both sides of the road. The Trial Court
observed that if accused Golbar and Abu Sama appeared from the left
and right, they must have come out of one of the shops on both sides
of the road since PW-4 categorically stated that he had not seen the
accused persons on the road while they were going towards the house of
the deceased. But none of the shopkeepers, adjacent to the place of
occurrence, came forward to depose that any occurrence as stated by PW-
4 & PW-5 had taken place in front of their shops. PW-5 during cross-
examination stated that he knew the names of two shopkeepers and they
are Sattar and Hazrat Ali. Hazrat Ali (PW-2) did not state that the
occurrence took place in front of his shop. PW-5 further stated during
cross examination that the deceased was an accused in a murder case
and had no explanation as to whether the deceased would move around
having bombs and other weapons with him. The Trial Court drew the
conclusion that the seized articles were belonging to the deceased
persons. On analysis of the evidence the Trial Court decided that the
evidence of PW-4 and PW-5 was full of contradictions on material
particulars and as such the testimony of these witnesses did not
inspire any confidence. Under the circumstances, the uncorroborated
testimony of PW-4 and PW-5 by some independent eye witness could not
be accepted to warrant the conviction of the accused persons.
4. The High Court on the other hand overruled the decision of the Trial
Court and convicted all the five accused under Section 302 read with
Section 149 of IPC and sentenced them to undergo rigorous
imprisonment for life and to pay a fine of Rs.10,000/- each.
5. We have heard the learned counsel appearing for the appellants as also
the learned counsel appearing for the State of Assam.
6. The present case involves consideration on two issues. First being the
powers of appellate Court while dealing with an appeal against an
order of acquittal. Second, being the sufficiency of the testimonies
of PW-4 and PW-5 to convict the accused persons without any
corroboration from an independent witness and the relevancy of the
statement of a hostile witness involving appreciation of the statement
of PW-8 who turned hostile.
7. On the first issue, the legal principles regarding powers of the
appellate Court while dealing with an appeal against an order of
acquittal, have been reiterated by this Court in a catena of cases.
This Court culled down five general principles in Chandrappa and Ors.
vs. State of Karnataka, (2007) 4 SCC 415, as follows:
“(1) An appellate court has full power to review, reappreciate
and reconsider the evidence upon which the order of acquittal is
founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation,
restriction or condition on exercise of such power and an
appellate court on the evidence before it may reach its own
conclusion, both on questions of fact and of law.
(3) Various expressions, such as, ‘substantial and compelling
reasons’, ‘good and sufficient grounds’, ‘very strong
circumstances’, ‘distorted conclusions’, ‘glaring mistakes’,
etc. are not intended to curtail extensive powers of an
appellate court in an appeal against acquittal. Such
phraseologies are more in the nature of ‘flourishes of language’
to emphasise the reluctance of an appellate court to interfere
with acquittal than to curtail the power of the court to review
the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case
of acquittal, there is double presumption in favour of the
accused. Firstly, the presumption of innocence is available to
him under the fundamental principle of criminal jurisprudence
that every person shall be presumed to be innocent unless he is
proved guilty by a competent court of law. Secondly, the accused
having secured his acquittal, the presumption of his innocence
is further reinforced, reaffirmed and strengthened by the trial
court.
(5) If two reasonable conclusions are possible on the basis of
the evidence on record, the appellate court should not disturb
the finding of acquittal recorded by the trial court.”
(Emphasis supplied)
8. The Court referred to Kallu alias Masih and Ors. vs. State of M.P.,
(2006) 10 SCC 313, in the above-mentioned judgment, where it held
that;
“While deciding an appeal against acquittal, the power of the
Appellate Court is no less than the power exercised while
hearing appeals against conviction. In both types of appeals the
power exists to review the entire evidence. However, one
significant difference is that an order of acquittal will not be
interfered with, by an appellate court, where the judgment of
the trial court is based on evidence and the view taken is
reasonable and plausible. It will not reverse the decision of
the trial court merely because a different view is possible. The
appellate Court will also bear in mind that there is a
presumption of innocence in favour of the accused and the
accused is entitled to get the benefit of any doubt. Further if
it decides to interfere, it should assign reasons for differing
with the decision of the trial Court”.
In our view, the above mentioned are certain cardinal rules to be kept in
mind in appeals against acquittal. In our view the Trial Court has given a
reasoned decision after careful and thorough analysis of the evidence
produced by the parties. The Trial Court also had the advantage of looking
at the demeanor of the witnesses, and was correct in granting the benefit
of doubt to the accused and acquitting them. The High Court erred in
presuming a version against the accused as the view which is favourable to
the accused should be taken in cases where two views are probable.
9. The Second issue for consideration is the testimonies of PW-4 and PW-5
in absence of any corroboration from any independent witness. PW-4 and
PW-5 are related witnesses as they are the brothers of the deceased
Hasen Ali. There is no bar on the admissibility of a statement by
related witnesses supporting the prosecution case, but it should stand
the test of being credible, reliable, trustworthy, admissible in
accordance with law and corroborated by other witnesses or documentary
evidence of the prosecution. This Court has held in Manga alias Man
Singh v. State of Uttarakhand, (2013) 7 SCC 629, that it is the
quality of the witness that matters and not the quantity, when the
related witness was examined and found credible. In such a case non-
examination of an independent witness would not be fatal to the
prosecution case. In the present case, however, the prosecution
witnesses PW-4 and PW-5, contradict each other, and their statements
are not corroborated by any independent witness in spite of the
incident happening in the market place, with shops on both sides of
the road. Therefore, in our view, as the testimonies of PW-4 and PW-5
are not completely reliable, this is a fit case where corroboration by
an independent witness was required. The case of the prosecution also
weakens on the ground that the only independent witness PW-8 turned
hostile. A similar situation arose in Shyamal Saha and Anr. v. State
of West Bengal, (2014) 12 SCC 321, where the only independent witness
turned hostile. This Court decided to affirm the acquittal and granted
benefit of doubt to the accused considering the factual background and
circumstances involved in the case.
10. Therefore, in the light of the above conclusions on the issues for
consideration, the view taken by the Trial Court was reasonable and
probable on the facts of the present case. We are, therefore, of the
opinion that the High Court should not have set aside the acquittal of
the appellants. Accordingly, this appeal is allowed and the impugned
judgment and order passed by the High Court is set aside. The
appellants are accordingly directed to be set free from incarceration,
if not required in any other case.
….....….……………………J
(Pinaki Chandra Ghose)
….....…..…………………..J
(R.K. Agrawal)
New Delhi;
April 28, 2015.
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