Page 1

1

REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 181 OF  2013 Golbar Hussain and Ors.          … Appellants

:Versus:

State of Assam and Anr.                   … Respondents

J U D G M E N T

Pinaki Chandra Ghose, J.

1. This appeal is preferred by the appellants against the judgment and order dated 31.08.2012 passed by the

Gauhati High Court in Criminal Appeal No.165 of 2004

whereby the High Court has allowed the appeal filed by

the  State  and  convicted  all  the  appellants  under

Section 302 read with Section 149 of the Indian Penal

Code  (“IPC”)  and  sentenced  them  to  undergo  rigorous

imprisonment for life and to pay a fine of Rs.10,000/-

each.  

Page 2

2

2. The brief facts of the case, as per the prosecution story,  are  that  on  5.1.2001  at  about  6:10  p.m.  at

Chapra Beparipara which is under Chapar Police Station,

the accused persons formed an unlawful assembly and in

prosecution  of  the  common  object  of  such  assembly,

committed the murder of Hasen Ali.  Amir Hussain, son

of  the  deceased  (PW-3)  lodged  an  Ejahar  about  the

incident at Chapar Police Station on 5.1.2001 at about

10:00 p.m. On receipt of the Ejahar, F.I.R. No.3/2001

was  registered  by  Chapar  Police  Station  and  started

investigation.  The  police  arrived  at  the  place  of

occurrence  and  called  the  Executive  Magistrate  who

prepared the inquest on the dead body and the inquest

was sent for post-mortem examination to Dhubri Civil

Hospital.  The  police  found  one  bag  containing  one

dagger  and  two  hand-made  bombs  lying  near  the  dead

body. After investigation, charge-sheet was submitted

against the accused persons under Sections 147, 148,

149, 341 and 302 of the IPC. On 29.6.2001, the said

charge-sheet  was  received  by  the  Chief  Judicial

Page 3

3

Magistrate,  Dhubri.   Since  the  offence  was  triable

exclusively  by  the  Court  of  Sessions,  the  Chief

Judicial  Magistrate  by  his  order  dated  15.3.2002

committed the case to the Court of Sessions for trial.

During the course of trial the prosecution examined 10

witnesses to bring home the charges levelled against

the  appellants.  The  defense  adduced  no  evidence  and

took a plea of total denial.   

3. The  Trial  Court  on  a  careful  scrutiny  of  the evidence found that the statements of PW-4 & PW-5 were

contradictory which created doubt as to the presence of

these  two  witnesses  at  the  place  of  occurrence.

Jamaluddin (PW-1) deposed that about 6 months ago, when

he was returning from the Pharmacy, he met Shah Alam

who  said  that  his  brother  had  been  killed  in  the

market, but he did not mention the name of any person.

The incident took place in the market place where there

were about 50 shops on both sides of the road. The

Trial Court observed that if accused Golbar and Abu

Sama appeared from the left and right, they must have

Page 4

4

come out of one of the shops on both sides of the road

since PW-4 categorically stated that he had not seen

the accused persons on the road while they were going

towards  the  house  of  the  deceased.  But  none  of  the

shopkeepers, adjacent to the place of occurrence, came

forward to depose that any occurrence as stated by PW-4

& PW-5 had taken place in front of their shops. PW-5

during cross-examination stated that he knew the names

of two shopkeepers and they are Sattar and Hazrat Ali.

Hazrat Ali (PW-2) did not state that the occurrence

took place in front of his shop. PW-5 further stated

during  cross  examination  that  the  deceased  was  an

accused in a murder case and had no explanation as to

whether the deceased would move around having bombs and

other  weapons  with  him.  The  Trial  Court  drew  the

conclusion that the seized articles were belonging to

the deceased persons. On analysis of the evidence the

Trial Court decided that the evidence of PW-4 and PW-5

was full of contradictions on material particulars and

as  such  the  testimony  of  these  witnesses  did  not

Page 5

5

inspire  any  confidence.  Under  the  circumstances,  the

uncorroborated  testimony  of  PW-4  and  PW-5  by  some

independent  eye  witness  could  not  be  accepted  to

warrant the conviction of the accused persons.   

4. The  High  Court  on  the  other  hand  overruled  the decision of the Trial Court and convicted all the five

accused under Section 302 read with Section 149 of  IPC

and sentenced them to undergo rigorous imprisonment for

life and to pay a fine of Rs.10,000/- each.   

5. We have heard the learned counsel appearing for the appellants as also the learned counsel appearing for

the State of Assam.

6. The  present  case  involves  consideration  on  two issues. First being the powers of appellate Court while dealing with an appeal against an order of acquittal.

Second,  being  the  sufficiency  of  the  testimonies  of PW-4 and PW-5 to convict the accused persons without

any corroboration from an independent witness and the

relevancy  of  the  statement  of  a  hostile  witness

Page 6

6

involving  appreciation  of  the  statement  of  PW-8  who

turned hostile.

7. On the first issue, the legal principles regarding powers of the appellate Court while dealing with an

appeal  against  an  order  of  acquittal,  have  been

reiterated by this Court in a catena of cases. This

Court culled down five general principles in Chandrappa and Ors. vs. State of Karnataka, (2007) 4 SCC 415, as follows:

“(1) An appellate court has full power to review,  reappreciate  and  reconsider  the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts  no  limitation,  restriction  or condition on exercise of such power and an appellate court on the evidence before it may  reach  its  own  conclusion,  both  on questions of fact and of law.

(3)  Various  expressions,  such  as, ‘substantial  and  compelling  reasons’, ‘good  and  sufficient  grounds’,  ‘very strong  circumstances’,  ‘distorted conclusions’, ‘glaring mistakes’, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in

Page 7

7

the nature of ‘flourishes of language’ to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the  evidence  and  to  come  to  its  own conclusion.   (4) An appellate court, however, must bear in mind that in case of acquittal, there is  double  presumption  in  favour  of  the accused.  Firstly,  the  presumption  of innocence  is  available  to  him  under  the fundamental  principle  of  criminal jurisprudence that every person shall be presumed  to  be  innocent  unless  he  is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal,  the  presumption  of  his innocence  is  further  reinforced, reaffirmed and strengthened by the trial court. (5)  If  two  reasonable  conclusions  are possible on the basis of the evidence on record,  the  appellate  court  should  not disturb the finding of acquittal recorded by the trial court.”  

(Emphasis supplied)

8. The Court referred to  Kallu alias Masih and Ors. vs.  State  of  M.P., (2006)  10  SCC  313,  in  the above-mentioned judgment, where it held that;  

“While  deciding  an  appeal  against acquittal,  the  power  of  the  Appellate

Page 8

8

Court is no less than the power exercised while hearing appeals against conviction. In both types of appeals the power exists to  review  the  entire  evidence.  However, one  significant  difference  is  that  an order of acquittal will not be interfered with,  by  an  appellate  court,  where  the judgment of the trial court is based on evidence and the view taken is reasonable and  plausible.  It  will  not  reverse  the decision of the trial court merely because a  different  view  is  possible.  The appellate  Court  will  also  bear  in  mind that there is a presumption of innocence in favour of the accused and the accused is  entitled  to  get  the  benefit  of  any doubt. Further if it decides to interfere, it  should  assign  reasons  for  differing with the decision of the trial Court”.     

In our view, the above mentioned are certain cardinal

rules to be kept in mind in appeals against acquittal.

In  our  view  the  Trial  Court  has  given  a  reasoned

decision  after  careful  and  thorough  analysis  of  the

evidence produced by the parties. The Trial Court also

had the advantage of looking at the demeanor of the

witnesses, and was correct in granting the benefit of

doubt  to  the  accused  and  acquitting  them.  The  High

Court erred in presuming a version against the accused

Page 9

9

as the view which is favourable to the accused should

be taken in cases where two views are probable.  

9. The  Second issue  for  consideration  is  the testimonies  of  PW-4  and  PW-5  in  absence  of  any

corroboration  from  any  independent  witness.  PW-4  and

PW-5 are related witnesses as they are the brothers of

the  deceased  Hasen  Ali.  There  is  no  bar  on  the

admissibility  of  a  statement  by  related  witnesses

supporting the prosecution case, but it should stand

the  test  of  being  credible,  reliable,  trustworthy,

admissible in accordance with law and corroborated by

other  witnesses  or  documentary  evidence  of  the

prosecution. This Court has held in  Manga alias Man

Singh v. State of Uttarakhand, (2013) 7 SCC 629, that

it is the quality of the witness that matters and not

the quantity, when the related witness was examined and

found credible. In such a case non-examination of an

independent  witness  would  not  be  fatal  to  the

prosecution  case.  In  the  present  case,  however,  the

prosecution  witnesses  PW-4  and  PW-5,  contradict  each

Page 10

10

other, and their statements are not corroborated by any

independent witness in spite of the incident happening

in the market place, with shops on both sides of the

road. Therefore, in our view, as the testimonies of

PW-4 and PW-5 are not completely reliable, this is a

fit case where corroboration by an independent witness

was required. The case of the prosecution also weakens

on the ground that the only independent witness PW-8

turned hostile. A similar situation arose in  Shyamal Saha and Anr. v. State of West Bengal, (2014) 12 SCC 321, where the only independent witness turned hostile.

This Court decided to affirm the acquittal and granted

benefit of doubt to the accused considering the factual

background and circumstances involved in the case.

10. Therefore, in the light of the above conclusions on the issues for consideration, the view taken by the

Trial Court was reasonable and probable on the facts of

the present case. We are, therefore, of the opinion

that  the  High  Court  should  not  have  set  aside  the

acquittal of the appellants. Accordingly, this appeal

Page 11

11

is allowed and the impugned judgment and order passed

by  the  High  Court  is  set  aside.  The  appellants  are

accordingly directed to be set free from incarceration,

if not required in any other case.  

….....….……………………J (Pinaki Chandra  Ghose)

….....…..…………………..J (R.K. Agrawal)

New Delhi; April 28, 2015.