# RAJESH PRASAD v. THE STATE OF BIHAR AND ANR. ETC

- **Citation:** [2022] 3 S.C.R. 1046
- **Court:** Supreme Court of India
- **Decided:** 2022-01-07
- **Case number:** Criminal Appeal Nos. 111-113 of 2015
- **Bench:** L. Nageswara Rao, B. R. Gavai, B. V. Nagarathna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/rajesh-prasad-v-the-state-of-bihar-and-anr-etc-35905
- **Pages:** 35

## Headnote

Penal Code, 1860: ss. 302/34, 120B - Explosive Substances
Act, 1908 - ss. 3, 4 - In the instant case, the accused-respondent
committed offence u/s 302 r/w 34 and 120B IPC by causing death
of father of appellant-informant, and other deceased victim by use
of explosive substance (bomb) and thereby was also charged u/s 3/
4 of the Explosive Substances Act, 1908 - On trial, the accused
was convicted and along with the term of imprisonment was also
awarded death sentence - High Court acquitted him of all charges
on the ground that there were flaws in the investigation and also in
the evidence of the prosecution witnesses - While acquitting the
accused, the High Court directed the appellant to be tried for the
offence of perjury - Hence the instant appeal against setting aside
the conviction of the respondent and also against the initiation of
the proceeding for perjury - Held: Trial Court failed to appreciate
the evidence of PWs-1, 3, 4 and 7 in proper perspective and further
failed to recognize the fact that PW-7 (the appellant) did not at all
support the case of the prosecution although he was the informant
and hence, erroneously convicted 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 which was not
proved beyond reasonable doubt, only the direction to trial court to
initiate proceedings of perjury against the appellant is set aside -
Rest of the impugned judgment of acquittal is affirmed.
Code of Criminal Procedure, 1973 - s. 378 - Power and
Scope - Appellate court has full powers to review and to reverse
the acquittal - 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 - The High Court in dealing
with an appeal against the acquittal ought to be cautious because
[2022] 3 S.C.R. 1046
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the presumption of the innocence in the favour of the accused is
not weakened by the fact that he has been acquitted at his trial but
if the court holds otherwise then it should assign reasons for differing
with the decision of the acquittal.
Appeal - Criminal Appellate Jurisdiction of Supreme Court -
Extent and scope in cases of appeal against acquittal - The exercise
of such power is rare in cases the order of the acquittal has been
confirmed by the High Court - Such power can be exercised only
when the High Court's conclusion is absolutely wrong, legally
erroneous and perverse keeping in mind the facts of the case.
Partly allowing the appeals, the Court
HELD: 1. 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. 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. 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. [Para
30][1063-D-G]
2. 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.(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. (c) Where testi

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SUPREME COURT REPORTS
[2022] 3 S.C.R.
RAJESH PRASAD
v.
THE STATE OF BIHAR AND ANR. ETC.
(Criminal Appeal Nos. 111-113 of 2015)
JANUARY 7, 2022
[L. NAGESWARA RAO, B. R. GAVAI AND
B. V. NAGARATHNA, JJ.]
Penal Code, 1860: ss. 302/34, 120B - Explosive Substances
Act, 1908 - ss. 3, 4 - In the instant case, the accused-respondent
committed offence u/s 302 r/w 34 and 120B IPC by causing death
of father of appellant-informant, and other deceased victim by use
of explosive substance (bomb) and thereby was also charged u/s 3/
4 of the Explosive Substances Act, 1908 - On trial, the accused
was convicted and along with the term of imprisonment was also
awarded death sentence - High Court acquitted him of all charges
on the ground that there were flaws in the investigation and also in
the evidence of the prosecution witnesses - While acquitting the
accused, the High Court directed the appellant to be tried for the
offence of perjury - Hence the instant appeal against setting aside
the conviction of the respondent and also against the initiation of
the proceeding for perjury - Held: Trial Court failed to appreciate
the evidence of PWs-1, 3, 4 and 7 in proper perspective and further
failed to recognize the fact that PW-7 (the appellant) did not at all
support the case of the prosecution although he was the informant
and hence, erroneously convicted 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 which was not
proved beyond reasonable doubt, only the direction to trial court to
initiate proceedings of perjury against the appellant is set aside -
Rest of the impugned judgment of acquittal is affirmed.
Code of Criminal Procedure, 1973 - s. 378 - Power and
Scope - Appellate court has full powers to review and to reverse
the acquittal - 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 - The High Court in dealing
with an appeal against the acquittal ought to be cautious because
[2022] 3 S.C.R. 1046
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the presumption of the innocence in the favour of the accused is
not weakened by the fact that he has been acquitted at his trial but
if the court holds otherwise then it should assign reasons for differing
with the decision of the acquittal.
Appeal - Criminal Appellate Jurisdiction of Supreme Court -
Extent and scope in cases of appeal against acquittal - The exercise
of such power is rare in cases the order of the acquittal has been
confirmed by the High Court - Such power can be exercised only
when the High Court's conclusion is absolutely wrong, legally
erroneous and perverse keeping in mind the facts of the case.
Partly allowing the appeals, the Court
HELD: 1. 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. 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. 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. [Para
30][1063-D-G]
2. 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.(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. (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.
RAJESH PRASAD v. THE STATE OF BIHAR AND ANR. ETC.
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(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. (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. (f) Where the High Court rejected
circumstantial evidence, based on an exaggerated and capricious
theory, which were beyond the plea of the accused or where
acquittal rests merely in exaggerated devotion to the rule of
benefit of doubt in favour of the accused. (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.' (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 or based on
extenuating circumstances which were purely based in
imagination and fantasy. (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. [Para 30][1064-A-H;
1065-A-F]
State of U.P. v. Sahai AIR 1981 SC 1442; Arunachalam
v. Sadhananthan AIR 1979 (SC) 1284 : [1979] 3 SCR
482; State of Haryana v. Lakhbir Singh (1990) CrLJ
2274 (SC); State of Rajasthan v. Sukhpal Singh, AIR
1984 SC 207 : [1983] 2 SCR 53; State of UP v. Shanker,
AIR 1981 SC 879; State of UP v. Hakim Singh AIR
1980 SC 184; State of UP v. Ranjha Ram, AIR 1986
SC 1959; State of Maharashtra v. Champalal Punjaji
Shah, AIR 1981 SC 1675; Gurbachan v. Satyapal
Singh, AIR 1990 SC 209 : 1989 (1) Suppl SCR 292;
State of AP v. Bogam Chandraiah, AIR 1986 SC 1899;
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State of UP v. Pheru Singh, AIR 1989 SC 1205 and
State of Uttar Pradesh v. Pussu 1983 AIR 867 (SC) :
[1983] 3 SCR 294 - relied on.
3. The High Court also noted flaws in the investigation of
the case and in the evidence of the prosecution witnesses which
are culled out as under: (i) PW-7 said that PW-4 drew up the
written report while PW-4 denied the same. (ii) While PW-1 and
PW-3 were related to the deceased and signed the seizure list
immediately after the occurrence, yet PW-3 had stated that he
was not aware of the other signatory to the seizure list. (iii) The
statement of PW-1, who was a witness to the seizure list as well
as an eye-witness , 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 PW-4 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) PW-2, 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) 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 40-45 yards north of the site of the first
explosion. [Para 52][1077-C-H; 1078-A-C]
4. The Fast Track Court has failed to appreciate the
evidence of PWs-1, 3, 4 and 7 in their proper perspective and
has further failed to recognise the fact that PW-7/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. The High Court was,
therefore, justified in reversing the judgment and order of
conviction passed by the Fast-Track Court. Further, the High
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Court stated that this is a fit case for initiating proceedings of
perjury against the appellant. No doubt, the appellant 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, the portion of the impugned
judgment and order directing the trial court to initiate proceedings
of perjury against the appellant is set aside. [Paras 54, 57,
58][1080-A-B, D-F]
Atley vs. State of U.P. AIR 1955 SC 807; Sanwat Singh
v. State of Rajasthan AIR 1961 SC 715 : [1961] 3 SCR
120; Aher Raja Khima v. State of Saurashtra AIR 1956
SC 217 : [1955] 2 SCR 1285; M.G. Agarwal v. State of
Maharashtra, AIR 1963 SC 200 : [1963] 2 SCR 405;
Shivaji Sahabrao Bobade v. State of Maharashtra
(1973) 2 SCC 793 : [1974] 1 SCR 489; Ramesh Babulal
Doshi v. State of Gujarat (1996) 9 SCC 225 : [1996] 2
Suppl. SCR 265; Ajit Savant Majagvai v. State of
Karnataka (1997) 7 SCC 110 : [1997] 3 Suppl. SCR
444; Ramesh Babulal Doshi v. State of Gujarat, (1996)
9 SCC 225 : [1996] 2 Suppl. SCR 265; Chandrappa &
Ors. v. State of Karnataka, (2007) 4 SCC 415 : [2007]
2 SCR 630; Nepal Singh v. State of Haryana (2009) 12
SCC 351 : [2009] 6 SCR 982 - relied on.
Case Law Reference
AIR 1934 PC 227(2)
relied on
Para 20
AIR 1955 SC 807
relied on
Para 21
[1961] 3 SCR 120
relied on
Para 21
[1955] 2 SCR 1285
relied on
Para 21
[1963] 2 SCR 405
relied on
Para 22
[1974] 1 SCR 489
relied on
Para 23
[1996] 2 Suppl. SCR 265
relied on
Para 24
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[1997] 3 Suppl. SCR 444
relied on
Para 25
[1996] 2 Suppl. SCR 265
relied on
Para 26
[2007] 2 SCR 630
relied on
Para 27
[2009] 6 SCR 982
relied on
Para 29
AIR 1981 SC 1442
relied on
Para 30 (a)
[1979] 3 SCR 482
relied on
Para 30 (a)
(1990) CrLJ 2274 (SC)
relied on
Para 30 (a)
[1983] 2 SCR 53
relied on
Para 30 (B) (i) (a)
AIR 1981 SC 879
relied on
Para 30 (B) (i) (a)
AIR 1980 SC 184
relied on
Para 30 (B) (i) (b)
[1983] 2 SCR 53
relied on
Para 30 (B) (i) (c)
[1979] 3 SCR 482
relied on
Para 30 (B) (i) (d)
AIR 1986 SC 1959
relied on
Para 30 (B) (i) (e)
AIR 1981 SC 1675
relied on
Para 30 (B) (i) (f)
[1989] (1) Suppl SCR 292
relied on
Para 30 (B) (i) (f)
AIR 1986 SC 1899
relied on
Para 30 (B) (i) (f)
AIR 1989 SC 1205
relied on
Para 30 (B) (ii) (a)
[1983] 3 SCR 294
relied on
Para 30 (B) (ii) (a)
[1982] 1 SCR 299
relied on
Para 30 (B) (ii) (b)
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 111-113 of 2015.
From the Judgment and Order dated 05.08.2009 of the High Court
of Judicature at Patna in Criminal Appeal (DB) Nos.714, 747 and 814 of
2008.
Ms. Prerna Singh, T. Mahipal, Advs. for the Appellant.
Saket Singh, Mrs. Niranjana Singh, Ranjan Mukherjee, Advs. for
the Respondents.
RAJESH PRASAD v. THE STATE OF BIHAR AND ANR. ETC.
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The Judgment of the Court was delivered by
NAGARATHNA J.
1. These appeals have been filed by the appellant - informant
(PW-7 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 Court-V, 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
Court-V, Munger, (hereinafter referred to as the 'Fast Track Court')
vide its judgment dated 26th June, 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 (PW-7) 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
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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. Accused-Chandrabhanu Prasad
helped the accused-Munna 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
Judge-I, 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
RAJESH PRASAD v. THE STATE OF BIHAR AND ANR. ETC.
[NAGARATHNA, J.]
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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 respondents-accused 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
Fast-Track 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
Fast-Track Court. The appellant-informant PW-7 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
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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 Fast-Track Court.
It was submitted that the Fast-Track Court failed to note that the evidence
on record did not prove the case of the prosecution beyond reasonable
doubt vis-à-vis 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?
(c)
What order?
15. The Fast-Track 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
RAJESH PRASAD v. THE STATE OF BIHAR AND ANR. ETC.
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raised by the deceased Chhote Lal Mahto and his son PW-7 Rajesh
Prasad-informant, appellant herein, against the illegal liquor business of
the accused.
16. The Fast-Track 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 PW-7 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 PW-1, PW-3, PW-4 and PW-7 are related to each
other, they being the son-in-law, cousin and sons of the
deceased, Chhote Lal Mahto respectively. PW-2 is the
shopkeeper of the PCO booth which is the shop adjoining
the betel shop of the informant. PW-2 was also injured by a
splinter of the bomb which was hurled on the deceased
Chhote Lal Mahto who was in his betel shop. PW-8 also
witnessed the occurrence. As such, PW-2 and PW-8 are
independent witnesses. PW-5 is the doctor who performed
the post-mortem examination of the deceased and PWs-9
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.
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(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 co-accused 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
RAJESH PRASAD v. THE STATE OF BIHAR AND ANR. ETC.
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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:
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"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."
RAJESH PRASAD v. THE STATE OF BIHAR AND ANR. ETC.
[NAGARATHNA, J.]
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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 then-and then onlyreappraise 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
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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
witness-box.
(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 vis-à-vis 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
RAJESH PRASAD v. THE STATE OF BIHAR AND ANR. ETC.
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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
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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.