JAYANTA SILversusSTATE OF ASSAM

                     [2010] 9 S.C.R. 615


                         JAYANTA SIL                                A
                               v.
                     STATE OF ASSAM
             (Criminal Appeal No. 1345 of 2007)

                      AUGUST 4, 2010
 ~H
                                                                    B
      [HARJIT SINGH BEDI AND C.K. PRASAD, JJ.]

      Penal Code, 1860:

     s.302 - Deceased accompanied by accused and co-                c
accused- Accused assaulting deceased by a sharp cutting
weapon, resulting into his death - Acquittal by trial court of
both - Conviction of accused by High Court - HELD: The
view taken by trial court was not justified - It has completely
misread the implication of the evidence given by five               0
witnesses, three of them w~re virtually eye-witnesses and two
of them totally independent- The prosecution evidence is
further corroborated by thi£Qoctor's evidence - PW. 1 is the
wife of the deceased -Adrrqttedly she had no animus against
the accused and had been attracted to the place after hearing       E
her husband's cries - The Oj;currence took place on the road
opposite the house of the deceased - The presence of PWs.
5 and 6 cannot also be doubted - The deceased as well as
these two witnesses had attended the 'Shradh' feast and the
murder took place while they were returning home - The
statements of these three witnesses are further corroborated        F
by the statement of PWs 2 and 3 to whom PW 1 had given
the information and told them that the accused and the co-
accused had murdered her husband - Statement of PW 11
is equally important and there is absolutely no doubt that his
statement with regard to the visit of the accused to his house      G
late at night with a request that he be allowed to stay on cannot
be disbelieved - This was indeed a strange request as the
accused and PW 11 belonged to the same village and there

                              615                                   H
    616      SUPREME COURT REPORTS                 [2010] 9 S.C.R.


A   is no plausible explanation as to why the accused chose to
    stay for the night in the house of PW 11 and not to return to
    his own house a short distance away - Appeal dismissed -
    Code of Criminal Procedure - Appeal against acquittal.

8       Mahendra Pratap Singh vs. State of Uttar Pradesh (2009)
    11 sec 334 - cited.

                          Case Law Reference:

          (2009) 11 sec 334        cited                   para 6
c       CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No. 1345 of 2007.

         From the Judgment & Order dated 08.12.2006/05.01.2007
    of the High Court of Gauhati in Govt. Criminal Appeal No. 33
D   of 1998.

          Soumyajit Pani (for Sunil Kumar Jain) for the Appellant.

        Nevneet Kumar (for Corporate Law Group) for the
    Respondent.
E
          The following order of the Court was delivered

                                  ORDER

        This is a statutory appeal arising out of the judgment of the
F   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
G   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-
H
           JAYANTA SIL v. STATE OF ASSAM                       617


Bhadrata Das, the wife of the deceased, came out from her             A
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-      8
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         C
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       D
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             E
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        F
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         G
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           H
    618     SUPREME COURT REPORTS                  [2010] 9 S.C.R.


A 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
B 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
c 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
D 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
E 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
F 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
G 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
H to his house late at night with a request that he be allowed to
           JAYANTA SIL v. STATE OF ASSAM                       619


stay on cannot be disbelieved. This was indeed a strange               A
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.
                                                                       8
      Mr. Soumyajit Pani the learned counsel for the appellant
has however cited Mahendra Pratap Singh vs. State of Uttar
Pradesh [(2009) 11 sec 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   C
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             D
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         E
 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                   F
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.
                                                                       G
       Accordingly, we dismiss the appeal.

R.P.                                          Appeal dismissed.