SHYAMAL SAHA & ANR.versusSTATE OF WEST BENGAL

                         [2014] 3 S.C.R. 90


A                    SHYAMAL SAHA & ANR.
                                 v.
                    STATE Of WEST BENGAL
                (Criminal Appeal No. 1490 of 2008)
                        FEBRUARY 24, 2014
B
                [RANJANA PRAKASH DESAI AND
                    MADAN B. LOKUR, JJ.)

        PENAL CODE, 1860: s. 302 - Murder - A/legation that the
C victim-deceased was taken across the river by appellants in
    a boat and thereafter taken to jungle and killed - Trial court
    found that evidence of witnesses was inconsistent and
    acquitted the appellant - High Court applied the last seen
    theory and set aside the order of acquittal - On appeal, held:
D   Number of independent witnesses turned hostile and three
    important witnesses added more in their oral testimony before
    the court than what was stated by them before the Investigating
    officer during investigation - High Court believed their
    testimony and did not take into consideration the view of trial
E   court based on evidence that it was doubtful if the five persons
    boarded the boat to cross river as alleged by prosecution -
    When the basic fact of the deceased having boarded a boat .
    and crossing the river with the appellants was in doubt, the
    substratum of the prosecution's case virtually would fall flat
F   and the truth of the subsequent events also becomes doubtful
    - High Court did not take into consideration that the chain of
    event must be so complete so as to leave no room for any
    hypothesis except that the accused was responsible for the
    death of the victim and it merely proceeded on last seen
G   theory - Since the first link was missing the view taken by trial
    court was not only a reasonable view but also probable view
    of the event - Order of acquittal passed by trial court restored.



H                                 90
    SHYAMAL SAHA & ANR. v. STATE OF WEST                91
                  BENGAL
     The prosecution case was that on the fateful day, the    A
victim-deceased was with his mother PW-5 at about 5.00/
5.30 p.m. Thereafter, he and his nephew (CW-1) aged
about 10 years went for a walk on the banks of the river
Ganges where they met GS. At that time, the appellants
also came there and called the deceased to go across the      B
river to see the Char (island). They boarded a boat and
were joined by PW-6 and PW-11. The five of them then
went across the river Ganges. When they reached the
other side of the river, PW-6 and PW-11 went towards the
thermal plant while the deceased and the appellants went      c
in a different direction towards the jungle. CW-1
expressed his desire to go to the Char but the appellant
no.1 asked him to return home. Thereafter, CW-1 came
back to his house. The deceased did not return home.
The next day, PW-1, the brother of the deceased lodged
                                                              0
an FIR regarding disappearance of the deceased. After
two days, the dead body of the deceased was found in
the river tied to two iron chairs with a napkin around his
neck. The appellants were charged for abducting and
murdering the deceased. The trial court held that the
                      •
charges were not proved and the testimony of
                                                              E
prosecution witnesses were inconsistent and, therefore,
acquitted both the appellants. The High Court set aside
the acquittal. The instant appeal was filed challenging the
order of the High Court.
                                                              F
     Allowing the appeal, the Court

       HELD: The issue regarding scope of interference by
  the High Court in an acquittal given by the trial court was
  discussed in *Chandrappa. It was held in *Chandrappa G
  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
                                                              H
    92       SUPREME COURT REPORTS              [2014] 3 S.C.R.


A   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
B   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
c   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
0
    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
E   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."T he
    principles laid down in *Chandrappa were generally
    reiterated but mainly reformulated in **Ganpat though
F   without reference to *Chandrappa and by referring to
    decisions not considered therein. Undoubtedly, from the
    principles laid down, it appeared at first blush that the
    High Court is entitled to virtually step into the shoes of
    the trial court and then decide the case as a court of first
G    instance. This is not what is intended, notwithstanding
     the broad language used in *Chandrappa and **Ganpat.
     Otherwise, the decision of the trial court would be a
     meaningless exercise and the Supreme Court would
     become a first appellate court from a decision of the High
H    Court in a case of acquittal by the trial cc;urt. Although
    SHYAMAL SAHA & ANR. v. STATE OF WEST                  93
                  BENGAL

the principles stated are broad, it is the obligation of the    A
High Court to consider and identify the error in the
decision of the trial court and then decide whether the
error is gross enough to warrant interference. The High
Court is not expected to merely substitute its opinion for
that of the trial court only because the first two principles   B
in *Chandrappa and **Ganpat permit it to do so and
because it has the power to do so - it has to correct an
error of law or fact significant enough to necessitate
overturning the verdict of the trial court. This is where the
High Court has to exercise its discretion very cautiously,      c
keeping in mind the acquittal of the accused and the
rights of the victim (who may or may not be before it). This
is also where the fifth principle laid down in Chandrappa
and Ganpat would come into operation. [para 19-22] [101-
D; 103-A-H; 104-A, F-G; 105-A-D]                                D
    *Chandrappa v. State of Karnataka (2007) 4 SCC 415:
2007 (2) SCR 630; **Ganpat v. State of Haryana (2010) 12
sec 59: 2010 (12) SCR 400 - relied on.
    Joginder Singh v. State of Haryana MANU/SC/1096/
2013; Sheo Swarup v. King Emperor AIR 1934 PC 227; Nur          E
Mohammad v. Emperor AIR 1945 PC 151; Prandas v. St;#f"e
AIR 1954 SC 36 - referred to.
     2. In this context, the evidence of CW-1, PW-6,.PW-
11 and the Investigating Officer assumes significance.
                                                                F
Disputing the testimony given by PW-6 and PW-11 in
Court, the Investigating Officer stated that when they
were examined under Section 161, Cr.P.C. they neither
told him that they had gone to the opposite side of the
river nor that appellants had gone with the deceased
towards the jungle. There was ,also no mention of the           G
attendance of CW-1 or the dress worn by the deceased.
In other words, they did not mention any of the events
said to have taken place in their presence. From this, it
is quite clear that the subsequent statements made by
them on oath appear to be add-ons and make believe.             H
   94       SUPREME COURT REPORTS              [2014] 3 S.C.R.


A This casted serious doubt on their credibility. An
  independent witness PW-8 who was supposed to have
  seen PW-6, PW-11, the deceased and the appellants
  board the boat to cross the river, turned hostile and
  denied having made any statement before the
B Investigating Officer. PW-7, wife of the boat owner also
  turned hostile and stated that their boat was, as usual,
  tied to the ghat and she could not say whether it was
  taken by any person on that date. CW-1 stated in Court
  that he was taken by PW-1 to the police station. However,
c PW-1 did not depose anything about having taken CW-1
  to the police station. The Investigating Officer deposed
  that CW-1 was cited as a witness a'"1d that had it been
  known to him that CW-1 was a material witness who saw
  the victim together with the accused, during investigation,
  he would have cited him as a witness in the charge sheet.
0
  Therefore, the possibility of CW-1 having been tutored
  was not completely ruled out. [paras 24-26] [105-G-H; 106-
  A-G]

       3. There was considerable padding in the testimony
E of the three crucial witnesses namely, PW-6, PW-11 and
  CW-1 and there were unexplained additions made by
  them. In this state of the evidence on record, the trial court
  was entitled to come to a conclusion that the prosecution
  version of the events was doubtful and that the
F appellants were entitled to the benefit of doubt and to be
  acquitted. A number of independent witnesses have
  turned hostile and three important witnesses had added
  much more in their oral testimony before the Court than
  what was stated before the Investigating Officer during
G investigations. The High Court believed the testimony of
  PW-6 and PW-11 and came to the conclusion that they
  had crossed the river along with the deceased and the
  appellants. However, the High Court did not take into
  consideration the view of the trial court, based on the
H evidence on record, that it was doubtful if the five
    SHYAMAL SAHA & ANR. v. STATE OF WEST                   95
                  BENGAL
persons boarded the boat to cross the river as alleged           A
by the prosecution. The High Court also did not consider
the apparently incorrect testimony of CW-1 who had
stated that he had gone to the police station and given
his version but despite this, he was not cited as a witness.
The version of CW-1 was specifically denied by the               B
Investigating Officer. [paras 27, 28] [106-H; 107-A-E]
      4. When the basic fact of the deceased having
boarded a boat and crossing the river with the appellants
was in doubt, the substratum of the prosecution's case
virtually falls flat and the truth of the subsequent events      C
also becomes doubtful. Unfortunately, the High Court did
not seem to have looked at the evidence from ttie point
of view of the accused who had already secured an
acquittal. This is an important perspective as noted in the
fourth principle of Chandrappa. The High Court was also          D
obliged to consider (which it did not) whether the view
of the trial court was a reasonable and possible view (the
fifth principle of Chandrappa) or not. Merely because the
High Court disagreed (without giving reasons why it did
so) with the reasonable and possible view of the trial           E
court, on a completely independent analysis of the
evidence on record, is not a sound basis to set aside the
order of acquittal given by the trial court. This is not to
say that every fact arrived at or every reason given by the
trial court must be dealt with - all that it means is that the   F
decision of the trial court cannot be ignored or treated as
non-existent. [para 29] [107-E-H; 108-A]
     5. The High Court did not take into consideration that
the chain of events must be so complete as to leave no
room for any other hypothesis except that the accused            G
were responsible.for the death of the victim and merely
proceeded on the basis of the last seen theory. The facts
of this case demonstrated that the first link in the chain
of circumstances was missing. It was only if this first link
is established that the subsequent links may be formed           H
    96      SUPREME COURT REPORTS            [2014] 3 S.C.R.


A on the basis of the last seen theory. But the High Court
  overlooked the missing link, as it were, and directly
  applied the last seen theory. This was ~ rather
  unsatisfacto'f'.Y way of dealing with the appeal. Under the
  circumstances, there was really no occasion for the High
B Court to have overturned the view of the trial court which
  was not only a reasonable view but a probable view of
  the events. [paras 30, 31, 32] [108-B-F]

       6. The significance of the evidence of the doctor who
  conducted the post mortem to the effect that the death
C took place between 65 and 70 hours before the post
  mortem examination was only with respect to the time of
  death and has no reference to the persons who may have
  caused the death of the deceased. °The view taken by the
  trial court was a reasonable and probable view on the
D facts of the case. Consequently, there was no occasion
  for the High Court to set aside the acquittal of the
  appellants. Accordingly, their conviction and sentence is
  set aside. [paras 34, 35] [109-A-D]

E       Sharad Birdhi Chand Sarda v. State of Maharashtra
    (1984) 4 SCC 116: 1997 (3) Suppl. SCR 337; Majenderan
    Langeswaran v. State (NCT of Delhi) and Anr. (2013) 7 SCC
    192 • relied on.
                       Case Law Reference:
F
         AIR 1934 PC 227            referred to    Para 19
         AIR 1945 PC 151            referred to    Para 19
         2007 (2) SCR 630           relied on      Para 20
G        AIR 1954 SC 36             referred to    Para 20
         2010 (12) SCR 400          relied on      Para 21
         1997 (3) Suppl. SCR 337    relied on      Para 30
H        (2013) 1 sec 192           relied on      Para 30
    SHYAMAL SAHA & ANR. v. STATE OF WEST                    97
                  BENGAL .

    CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal            A
No. 1490 of 2008.

     From the Judgment and Order dated 11.03.2008 of the
Division Bench of Calcutta High Court in G.A. No. 9 of 2000.

    Rauf Rahim for the Appellants.                                B

    Soumya Chakaraborty, Anip Sachthey for the Respondent.

    The Judgment of the Court was delivered by

    MADAN B. LOKUR, J. 1. This appeal questions the limits        c·
of interference by the High Court in an appeal against the
acquittal of an accused by the Trial Court. In our opinion, the
High Court ought not to have interfered in the appeal before it
with the acquittal of the appellants by the Trial Court.
                                                                  D
Facts:

    2. The sequence of events, as it has unfolded from the
evidence of the witnesses, is that on 19th May, 1995 a thermal
plant of the Calcutta Electric Supply Company had opened
across the river Ganges in Mauza Bhabanipur Char, District        E
Hooghly, West Bengal.

     3. Paritosh Saha was with his mother Bidyutprava Saha
(PW-5) at about 5.00/5.30 p.m. on 19th May, 1995. Thereafter,
he and his nephew Animesh Saha (CW-1) aged about 10               F
years went for a walk on the banks of the river Ganges where
they met Gopal Saha, with whom they struck a conversation.
At that time, the appellants Shyamal Saha and Prosanta @
Kalu Kabiraj also came there and called Paritosh to go across
the river to see the Char (island). Animesh also expressed his    G
desire to go to the Char but Shyamal asked him to return home.

     4. When the three of them (Paritosh, Shyamal and
 Prosanta) were about to board Asit Sarkar's boat, they were
joined by Dipak Saha (PW-6) and Panchu Sarkar (PW-11 ). The       H
    98       SUPREME COURT REPORTS               [2014) 3 S.C.R


A five of them then went across the river Ganges and, according
  to Animesh, when they reached the other side of the river, Dipak
  and Panchu went towards the thermal plant while Paritosh,
  Shyamal and Prosanta went in a different direction towards the
  jungle. Thereafter, Animesh came back to his house.
B
       5. According to Bidyutprava Saha, at about 8.00 or 8.30
  p.m. Shyamal·and Prosanta came to her house and asked the
  whereabouts of Paritosh.

       6. According to Paritosh's brother Amaresh Saha (PW-1)
C at about 10.00 p.m. Shyamal and Prosanta came to his house
  and enquired about Paritosh.

        7. Early next morning on 20th May, 1995 Bidyutprava Saha
  noticed that Paritosh had not eaten his dinner which she had
0 kept for him. She mentioned this to Amaresh and also informed
  him that Shyamal and Prosanta had come and met her the
  previous evening at about 8.00 or 8.30 p.m. During the course
  of this conversation, Animesh revealed to his father Amaresh
  that he had seen Paritosh cross the river Ganges the previous
E evening in a boat along with Shyamal and Prosanta.
       8. On receiving this information Amaresh enquired from
  Shyamal and Prosanta the whereabouts of Paritosh but they
  informed him that they had seen him across the river with some
  boys. Later in the day, Amaresh was informed by Dipak and
F Panchu that they had crossed the river along with Paritosh,
  Shyamal and Prosanta. After crossing the river, Dipak and
  Panchu had gone to see the thermal plant and the others had
  gone in another direction towards the jungle. Dipak and Panchu
  pleaded ignorance of the subsequent movements of Paritosh.
G
        9. Later in the evening at about 7.30 p.m. Amaresh Saha
    lodged a First Information Report regarding the disappearance
    of Paritosh.
      10. Sometime in the morning of 21st May, 1995 the corpse
H of Paritosh was found in the river tied to two iron chairs with a
       SHYAMAL SAHA & ANR. v. STATE OF WEST                           99
            BENGAL [MADAN B. LOKUR, J.]
napkin around his neck. The police were informed about the                  A
recovery of the dead body and an inquest was carried out and
the iron chairs and napkin were seized in the presence of some
witnesses. It was noticed that a part of Paritosh's skin was burnt
perhaps due to pouring of acid.
                                                                            B
         11. On these broad facts, investigations were carried
     out and Shyamal and Prosanta were charged with having
      abducted Paritosh and thereafter having murdered him.

Decision of the Trial Court:
                                                                            c
     12. In its judgment and order dated 29th July, 1998 the Trial
Court held that neither the charge of abduction nor the charge
of murder was proved against Shyamal and Prosanta and
therefore they were acquitted. 1 As far as the charge of
abduction is concerned, that is not in issue before us and need             0
not detain us any further.

     13. The acquittal by the Trial Court was primarily in view
of the absence of consistency in the testimony of Amaresh,
Bidyutprava Saha, Animesh, Dipak and Panchu. For example,
it was observed that if Animesh had in fact informed Amaresh                E
and Bidyutprava Saha that he had gone to the banks of the river
with Paritosh, it would have been reflected in their testimony.
Similarly, Bidyutprava Saha did not say anything about Paritosh
going to the river although she saw him at about 5.00 or 5.30
p.m. on 19th May, 1995. The Investigating Officer, Sub-                     F
Inspector Debabrata Dubey (PW-16) had yet another version
of the events. His testimony indicated that many of the facts
stated in the oral testimony of the witnesses were not put across
to him at any time, suggesting considerable padding and
embellishments in their testimony. As such, it was not possible             G
to lend credence to the testimony of the prosecution witnesses
and the accused were entitled to the benefit of doubt.
Additionally, the Trial Court noted that it was a case of
1.    Session Trial Case No. 21 of 1997 deided by the Additional Sessions   H
      Judge, Hooghly.
    100        SUPREME COURT REPORTS                    [2014] 3 S.C.R.


A circumstantial evidence and also that there was no motive for
  Shyamal and Prosanta to have murdered Paritosh.

    Decision of the High Court:

       14. Feeling aggrieved by their acquittal, the State preferred
B an appeal before the Calcutta High Court against Shyamal and
  Prosanta. The appeal was allowed by a judgment and order
  dated 11th March, 2008. 2 The decision of the Trial Court was
  reversed and they were convicted for the murder of Paritosh
  and sentenced to imprisonment for life and a fine of
C Rs.5000/- each and in default of payment to undergo rigorous
  imprisonment of one year each.

      15. According to the High Court, the case of the
  prosecution hinged, essentially, on the evidence of Dipak and
0 Panchu, as well as of Animesh. The High Court considered their
  evidence and held that all five (Dipak, Panchu, Paritosh,
  Shyamal and Prosanta) crossed the river in a boat in the
  evening at about 5.30 p.m. on 19th May, 1995. This was
  supported by the testimony of Animesh who also wanted to go
E along with all of them but was prohibited from doing so by
  Shyamal.

       16. It was also held, on the basis of the post mortem report
  given by Dr. P.G. Bhattacharya (PW-15) and his testimony that
  Paritosh died soon after 5.30 p.m. on 19th May, 1995. The High
F Court came to this conclusion on the basis of the doctor's
  statement that the death took place between 65 and 70 hours
  before he conducted the post mortem examination. Since the
  post mortem examination was conducted at about 12.00 noon
  on 22nd May, 1995 working backwards, it appeared that
G Paritosh died soon after 5.30 p.m. on 19th May, 1995.

         17. Finally, the High Court held that Paritosh was last seen
    with Shyamal and Prosanta and therefore they had to explain

    2.   State of West Bengal v. Shyamal Saha and another, 113 CWN 505=MANU/
H        WB/0881/2008.
     SHYAMAL SAHA & ANR. v. STATE OF WEST                   101
         BENGAL [MADAN B. LOKUR, J.]

the events that had occurred after they were last seen together. A
In the absence of any explanation offered by them, 1he last seen
theory would apply and it must be held that Shyamal and
Prosanta had murdered Paritosh.

Discussion on the law:                                              B
      18. Aggrieved by their conviction and sentence, Shyamal
and Prosanta have preferred this appeal. The primary
submission made on t-heir behalf was to the effect that the High
Court ought not to have interfered in the acquittal by the Triat
Court particularly, in a case of circumstantial evidence. It was C
also submitted that the evidence on record points to the fact
that they were made scapegoats by the prosecution. Of course,
this was opposed by learned counsel for the State.

      19. The crucial issue for consideration, therefore, relates   o
to interference by the High Court in an acquittal given by the
Trial Court. Recently, in Joginder Singh v. State of Haryana 3 it
was held, after referring to Shea Swarup v. King Emperor4 that

      "Before we proceed to consider the rivalised contentions
      raised at the bar and independently scrutinize the relevant · E
      evidence brought on record, it is fruitful to recapitulate the
      law enunciated by this Court pertaining to an appeal
      against acquittal. In Sheo Swarup (supra), it has been
      stated that the High Court can exercise the power or
      jurisdiction to reverse an order of acquittal in cases where F
      it finds that the lower court has "obstinately blundered" or
      has "through incompetence, stupidity or perversity"
      reached such "distorted conclusions as to produce a
      positive miscarriage of justice" or has in some other way
      so conducted or misconducted himself as to produce a G
      glaring miscarriage of justice or has been tricked by the
      defence so as to produce a similar result."

3.   MANU/SC/1096/2013.
4.   AIR 1934 PC 227.                                               H
    102        SUPREME COURT REPORTS                  [2014] 3 S.C.R.


A   Unfortunately, the paraphrasing of the concerned passage from
    Sheo Swarup gave us an impression that the High Court can
    reverse an acquittal by a lower court only in limited
    circumstances. Therefore, we referred to the passage in Sheo
    Swarup and find that what was stated was as follows:
B
          "There is in their opinion no foundation for the view,
          apparently supported by the judgments of some Courts in
          India, that the High Court has no power or jurisdiction to
          reverse an order of acquittal on a matter of fact, except in
          cases in which the lower Court has "obstinately blundered,"
c         or has "through incompetence, stupidity or perversity"
          reached such "distorted conclusions as to produce a
          positive miscarriage of justice," or has in some other way
          so conducted itself as to produce a glaring miscarriage
          of justice, or has been tricked by the defence so as to
D         produce a similar result."

    The legal position was reiterated in Nur Mohammad v.
    Emperor6 after citing Sheo Swarup and it was held:

          "Their Lordships do not think it necessary to read it all
E
          again, but would like to observe that there really is only one
          principle, in the strict use of the word, laid down there; that
          is, that the High Court has full power to review at large all
          the evidence upon which the order of acquittal was
          founded, and to reach the conclusion that upon that
F         evidence the order of acquittal should be reversed."

    We are mentioning this only to dispel the possibility of anyone
    else getting an impression similar to the one that we got, though
    nothing much turns on this as far as this case is concerned.
G
          20. The entire case law on the subject was discussed in
    Chandrappa v. State of Kamataka 6 beginning with perhaps the
    first case decided by this Court on the subject being Prandas
    5.   AIR 1945 PC 151.
H a. c2001) 4 sec 415.
      SHYAMAL SAHA & ANR. v. STATE OF WEST                      103
           BENGAL [MADAN B. LOKUR, J.]
v. State. 7 It was held in Chandrappa as follows:                      A
      "(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                 B
      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        C
      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            o
      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      E
      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 tie
      innocent unless he is proved guilty by a competent court
      of law. Secondly, the accused having secured his acquittal,      F
      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."   G
     21. The principles laid down in Chandrappa were generally
reiterated but mainly reformulated in Ganpat v. State of
Haryana 8 though without reference to Chandrappa and by
7.   AIR 1954 SC 36.
a.   (2010) 12 sec 59.                                                 H
    104       SUPREME COURT REPORTS                  [2014] 3 S.C.R


A referring to decisions not considered therein. The reformulation
  of the principles in Ganpat is as follows:

       . "(i) There is no limitation on the part of the appellate court
         to review the evidence upon which the order of acquittal
         is founded and to come to its own conclusion.
B
          (ii) The appellate court can also review the trial court's
          conclusion with respect to both facts and law.

          (iii) While dealing with the appeal preferred by the State,
c         it is the duty of the appellate court to marshal the entire
          evidence on record and by giving cogent and adequate
          reasons may set aside the judgment of acquittal.

          (iv) An order of acquittal is to be interfered with only when
          there are "compelling and substantial reasons" for doing
D         so. If the order is "clearly unreasonable", it is a compelling
          reason for interference.

          (v) When the trial court has ignored the evidence or
          misread the material evidence or has ignored material
E         documents like dying declaration/report of ballistic experts,
          etc. the appellate court is competent to reverse the
          decision of the trial court depending on the materials
          placed. (Vide Madan Lal v. State of J&K9, Ghurey Lal v.
          State of U.P. 10, Chandra Mohan Tiwari v. State of M.P. 11
F         and Jaswant Singh v. State of Haryana 12 .)"

       22. Undoubtedly, we are suffering from an overdose of
  precedents but be that as it may, from the principles laid down,
  it appears at first blush that the High Court is entitled to virtually
  step into the shoes of the Trial Court hearing submissions of
G learned counsel and then decide the case as a court of first
    .9. (1997) 7 sec 677.
     10. (2008) 10 sccc 450.
     11. (1992) 2 sec 105.
H 12. (2000) 4 sec 484.
    SHYAMAL SAHA & ANR. v. STATE OF WEST                    105
         BENGAL [MADAN B. LOKUR, J.]
instance. Perhaps this is not what is intended, notwithstanding A
the broad language used in Chandrappa and Ganpat.
Otherwise, the decision of the Trial Court would be a
meaningless exercise and this Court would become a first
appellate cqurt from a decision of the High Court in a case of
acquittal by the Trial Court. Realistically speaking, although the B
principles stated are broad, it is the obligation of the High Court
to consider and identify the error in the decision of the Trial
Court and then decide whether the error is gross enough to
warrant interference. The High Court is not expected to merely
substitute its opinion for that of the Trial Court only because thec
first two principles in Chandrappa and Ganpat permit it to do
so and because it has the power to do so - it has to correct an
error of law or fact significant enough to necessitate overturning
the verdict of the Trial Court. This is where the High Court has
to exercise its discretion very cautiously, keeping in mind the
                                                                    0
acquittal of the accused and the rights of the victim (who may
or may not be before it). This is also where the fifth principle·
laid down in Chandrappa and Ganpat comes into operation.

Discussion on facts:
                                                                   E
     23. Looked at from this perspective, it was submitted by
learned counsel for the State that there cannot be two
reasonable views of the events that took place. It was submitted
that there was no doubt that Paritosh crossed the river Ganges ·
with Shyamal and Prosanta and they went to a secluded and F
uninhabited place across the river. This was witnessed by
Dipak, Panchu and Animesh. Paritosh then went missing and
his corpse was found a couple of days later. It was submitted
that on these facts there can be only one conclusion, namely
that Shyamal and Prosanta caused the death of Paritosh.          G

    24. In this context, the evidence of Dipak, Panchu, Animesh
and the Investigating Officer assumes significance. Disputing
the testimony given by Dipak and Panchu in Court, the
Investigating Officer stated that when they were examined under
Section 161 of the Criminal Proce".lure Code they neither told     H
    106      SUPREME COURT REPORTS                [2014] 3 S.C.R.


A him that they had gone to the opposite side of the river nor that
  Shyamal and Prosanta had gone with Paritosh towards the
  jungle. There was also no mention of the attendance of
  Ariimesh or the dress worn by Paritosh. In other words, they did
  not mention any of the events said to have taken place in their
B presence on the evening of 19th May, 1995. From this, it is quite
  clear that the subsequent statements made by them on oath
  appear to be add-ons and make believe. This casts serious
  doubt on their credibility.

       25. An independent witness Swapan Kabiraj (PW-8) who
C is supposed to have seen Dipak, Panchu, Paritosh, Shyamal
  and Prosanta board the boat to cross the river, turned hostile
  and denied having made any statement before the Investigating
  Officer. Snehalata Sarkar (PW-7), wife of the boat owner Asit
  Sarkar also turned hostile and stated that their boat was, as
D usual, tied to the ghat and she could not say whether it was
  taken by any person on that date.

       26. However, what is even more important is that Animesh
  stated in Court that on the morning of 20th May, 1995 he had
E told his father Amaresh and Bidyutprava Saha that he had seen
  the abovementioned five persons cross the river in a boat the
  previous evening. He also stated that he was taken by Amaresh
  to the police station and he had even mentioned this to the
  police. However, Amaresh does not depose anything about
F having taken Animesh to the police station. The Investigating
  Officer deposed that Animesh had not been cited as a witness
  and "had it been known to me that Animesh is a material
  witness who saw the victim together with the accused, during
  investigation, he would have been cited as a witness in the
G charge sheet". Therefore, the possibility of Animesh having
  been tutored cannot be completely ruled out.

       27. It is clear that there is considerable padding in the
  testimony of the three crucial witnesses namely, Dipak, Panchu
  and Animesh and there are unexplained additions made by
H them. In this state of the evidence on record, the Trial Court was
       SHYAMAL SAHA & ANR. v. STATE OF WEST                    107
            BENGAL [MADAN 8. LOKUR, J.]
  entitled to come to a conclusion that the prosecution version      A
  of the events was doubtful and that Shyamal and Prosanta were
  entitled to the benefit of doubt and to be acquitted. We also
  find from the record that a number of independent witnesses
  have turned hostile and, as mentioned above, three important
  witnessts have added much more in their oral testimony before      8
  the Court than what was stated before the Investigating Officer
  during investigations.

        28. The High Court believed the testimony of Dipak and
  Panchu and came to the conclusion that they had crossed the
  river along with Paritosh, Shyamal and Prosanta. However, the      C
  High Court did not take into consideration the view of the Trial
  Court, based on the evidence on record, that it was doubtful if
~ the five persons mentioned above boarded the boat belonging
  to Asit Sarkar to cross the river as alleged by the prosecution.
  The High Court also did not consider the apparently incorrect      D
  testimony of Animesh who had stated that he had gone to the
  police station and given his version but despite this, he was
  not cited as a witness. The version of Animesh was specifically
  denied by the Investigating Officer.
                                                                      E
       29. When the basic fact of Paritosh having boarded a boat
 and crossing the river with Shyamal and Prosanta is in doubt,
 the substratum of the prosecution's case virtually falls flat and
 the truth of the subsequent events also becomes doubtful.
 Unfortunately, the High Court does not seem to have looked at
                                                                      F
 the evidence from the point of view of the accused who had
 already secured an acquittal. This is an important perspective
 as noted in the fourth principle of Chandrappa. The High Court
 was also obliged to consider (which it did not) whether the view
 of the Trial Court is a reasonable and possible view (the fifth G
 principle of Chandrappa) or not. Merely because the High
 Court disagreed (without giving reasons why it did so) with the
 reasonable and possible view of the Trial Court, on a completely
 independent analysis of the evidence on record, is not a sound
 ba:;is to set aside the order of acquittal given by the Trial Court.
                                                                      H
    108       SUPREME COURT REPORTS                [2014] 3 S.C.R.

A This is not to say that every fact arrived at or every reason given
  by the Trial Court must be dealt with - all that it means is that
  the decision of the Trial Court cannot be ignored or treated as
  non-existent.

          30. What is also important in this case is that it is one of
8 circumstantial evidence. Following the principles laid down in
  several decisions of this Court beginning with Sharad Birdhi
  Chand Sarda v. State of Maharashtra 13 it is clear that the chain
  of events must be so complete as to leave no room for any
  other hypothesis except that the accused were responsible for
C the death of the victim. This principle has been followed and
  reiterated in a large number of decisions over the last 30 years
  and one of the more recent decisions in this regard is
    Majenderan Langeswaran v. State (NCT of Delhi) and
    Another14 • The High Court did not take this into consideration
D and merely proceeded on the basis of the last seen theory.

       31. The facts of this case demonstrate that the first link in
  the chain of circumstances is missing. It is only if this first link
  is established that the subsequent links may be formed on the
E basis of the last seen theory. But the High Court overlooked
  the missing link, as it were, and directly applied the last seen
  theory. In our opinion, this was a rather unsatisfactory way of
  dealing with the appeal.

        32. Under the circumstances, we are unable to agree with
F learned counsel for the State and are of the opinion that there
   was really no occasion for the High Court to have overturned
 · the view of the Trial Court which was not only a reasonable view
   but a probable view of the events.

G       33. Learned counsel for Shyamal and Prosanta raised
  some issues such as the failure of the prosecution to examine
  Gopal Saha and Asit Sarkar. He also submitted that there was
  no motive for Shyamal and Prosanta to murder Paritosh. In the
  13. (1984) 4 sec 116.
H 14. (2013) 1 sec 192.
     SHYAMAL SAHA & ANR. v. STATE OF WEST                    109
          BENGAL [MADAN B. LOKUR, J.]
 view that we have taken, it is not necessary to deal with these    A
 submissions.

      34. Learned counsel for the State relied on the evidence
 of Dr. Bhattacharya to submit that Paritosh died between 6~
 and 70 hours before the post mortem examination was                B
 conducted. As observed by High Court, this placed Paritosh's
 death soon after 5.30 p.m. on 19th May, 1995. The significance
 of this is only with respect to the time of death and has no
 reference to the persons who may have caused the death of
 Paritosh. The evidence of Dr. Bhattacharya, therefore, does not    C
 take the case of the StaJe any further.

 Conclusion:

        35. The view taken by the Trial Court was a reasonable
  and probable view on the facts of the case. Consequently, there   D
  wr..s no occasion for the High Court to set aside the acquittal
  of Shyamal and Prosanta. Accordingly, their coriviction and
  sentence handed down by the High Court is set aside. Their
· appeal against their conviction and sentence is allowed.

 D.G.                                          Appeal allowed.      E