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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1490 OF 2008

Shyamal Saha & Anr. ....Appellants

Versus

State of West Bengal               ....Respondent

J U D G M E N T

Madan B. Lokur, J.

1. This appeal questions the limits 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.  

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  

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the  river  Ganges  in  Mauza  Bhabanipur  Char,  District  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 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 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 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.

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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)  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 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 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  

Panchu  that  they  had  crossed  the  river  along  with  Paritosh,  

Shyamal and Prosanta.  After crossing the river, Dipak and Panchu  

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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.

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 of  

Paritosh  was  found  in  the  river  tied  to  two  iron  chairs  with  a  

napkin  around  his  neck.   The  police  were  informed  about  the  

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.

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: 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  

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they  were  acquitted.1 As  far  as  the  charge  of  abduction  is  

concerned, that is not in issue before us and need 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 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 19 th  

May,  1995.  The  Investigating  Officer,  Sub-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 to lend credence to  

the testimony of the prosecution witnesses and the accused were  

1 Session Trial Case No. 21 of 1997 decided by the Additional Sessions Judge, Hooghly

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entitled to the benefit of doubt. Additionally, the Trial Court noted  

that it was a case of 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 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 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 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  2 State of West Bengal v. Shyamal Saha and another, 113 CWN 505=MANU/WB/0881/2008

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who also wanted to go 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  

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 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  the  

events that had occurred after they were last seen together.  In  

the absence of any explanation offered by them, the last seen  

theory  would  apply  and  it  must  be  held  that  Shyamal  and  

Prosanta had murdered Paritosh.

Discussion on the law: 18. Aggrieved by  their  conviction  and sentence,  Shyamal  and  

Prosanta  have  preferred  this  appeal.  The  primary  submission  

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made on their behalf was to the effect that the High Court ought  

not  to  have  interfered  in  the  acquittal  by  the  Trial  Court  

particularly,  in  a  case  of  circumstantial  evidence.  It  was  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  to  

interference by the High Court in an acquittal given by the Trial  

Court. Recently, in Joginder Singh v. State of Haryana3 it was  

held, after referring to Sheo Swarup v. King Emperor4  that  

“Before  we  proceed  to  consider  the  rivalised  contentions  raised  at  the  bar  and  independently  scrutinize the relevant 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 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 glaring miscarriage of justice or has been  tricked  by  the  defence so  as  to  produce  a  similar  result.”

Unfortunately, the paraphrasing of the concerned passage from  

3 MANU/SC/1096/2013 4 AIR 1934 PC 227

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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:

“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,"  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  produce a similar result.”

The  legal  position  was  reiterated  in  Nur  Mohammad  v.  

Emperor5 after citing Sheo Swarup and it was held:

“Their Lordships do not think it necessary to read it  all 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  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.

5 AIR 1945 PC 151

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20. The  entire  case  law  on  the  subject  was  discussed  in  

Chandrappa v. State of Karnataka6  beginning with perhaps  

the first case decided by this Court on the subject being Prandas  

v. State.7 It was held in Chandrappa as follows:

“(1) An  appellate  court  has  full  power  to  review,  reappreciate  and  reconsider  the  evidence  upon  which the order of acquittal is founded. (2)  The Code of  Criminal  Procedure,  1973 puts  no  limitation, restriction or condition on exercise of such  power and an appellate court on the evidence before  it may reach its own conclusion, both on questions of  fact and of law. (3)  Various  expressions,  such  as,  ‘substantial  and  compelling  reasons’,  ‘good  and sufficient  grounds’,  ‘very strong circumstances’,  ‘distorted conclusions’,  ‘glaring  mistakes’,  etc.  are  not  intended  to  curtail  extensive powers of an appellate court in an appeal  against acquittal. Such phraseologies are more in the  nature of ‘flourishes of language’ to emphasise the  reluctance  of  an  appellate  court  to  interfere  with  acquittal  than to  curtail  the power  of  the court  to  review  the  evidence  and  to  come  to  its  own  conclusion. (4) An appellate court, however, must bear in mind  that in case of acquittal, there is double presumption  in favour of the accused. Firstly, the presumption of  innocence is available to him under the fundamental  principle of criminal jurisprudence that every person  shall be presumed to be innocent unless he is proved  guilty  by  a  competent  court  of  law.  Secondly,  the  accused  having  secured  his  acquittal,  the  presumption  of  his  innocence is  further  reinforced,  reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the  basis of the evidence on record, the appellate court  should not disturb the finding of acquittal recorded  by the trial court.”

6 (2007) 4 SCC 415 7 AIR 1954 SC 36

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21. The  principles  laid  down  in  Chandrappa were  generally  

reiterated  but  mainly  reformulated  in  Ganpat  v.  State  of  

Haryana8 though  without  reference  to  Chandrappa and  by  

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. (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, 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 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  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 and  Jaswant  Singh v.  State  of  Haryana12.)”

22. Undoubtedly,  we  are  suffering  from  an  overdose  of  

precedents but be that as it may, from the principles laid down, it  

8 (2010) 12 SCC 59 9 (1997) 7 SCC 677 10 (2008) 10 SCC 450 11 (1992) 2 SCC 105 12 (2000) 4 SCC 484

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appears at first blush that the High Court is entitled to virtually  

step  into  the  shoes  of  the  Trial  Court  hearing  submissions  of  

learned  counsel  and  then  decide  the  case  as  a  court  of  first  

instance.  Perhaps 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 this Court would become a first appellate court from  

a decision of the High Court in a case of acquittal by the Trial  

Court.  Realistically speaking,  although the 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  the  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 acquittal  of the  

accused and the rights of the victim (who may or may not be  

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before  it).  This  is  also  where  the  fifth  principle  laid  down  in  

Chandrappa and Ganpat comes into operation.  

Discussion on facts: 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  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.

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 Procedure Code they neither told him that they  

had gone to the opposite side of the river nor that Shyamal and  

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Prosanta had gone with Paritosh towards the jungle. There was  

also no mention of the attendance of Animesh or the dress worn  

by  Paritosh.  In  other  words,  they  did  not  mention  any  of  the  

events said to have taken place in their 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  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  

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 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  

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to  the  police  station  and  he  had  even  mentioned  this  to  the  

police. However, Amaresh does not depose anything about 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  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 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 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 witnesses have added much  

more  in  their  oral  testimony  before  the  Court  than  what  was  

stated before the Investigating Officer during investigations.

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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 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 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.

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  

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  

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also obliged to consider (which it did not) whether the view of the  

Trial Court is 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  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 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  

circumstantial  evidence.  Following  the  principles  laid  down  in  

several  decisions  of  this  Court  beginning  with  Sharad  Birdhi  

Chand Sarda v.  State of Maharashtra13 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 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  

13 (1984) 4 SCC 116

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Majenderan  Langeswaran  v.  State  (NCT  of  Delhi)  and  

Another.14 The High Court did not take this into consideration  

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 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  

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.  

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  

14 (2013) 7 SCC 192

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for Shyamal and Prosanta to murder Paritosh. In the view that we  

have taken, it is not necessary to deal with these submissions.  

34. Learned counsel for the State relied on the evidence of Dr.  

Bhattacharya  to  submit  that  Paritosh  died  between 65 and 70  

hours  before  the post  mortem examination was 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 take the case of the State 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 was  

no  occasion  for  the  High  Court  to  set  aside  the  acquittal  of  

Shyamal and Prosanta. Accordingly, their conviction and sentence  

handed down by the High Court is set aside. Their appeal against  

their conviction and sentence is allowed.

         ….…………………………..J.    

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         (Ranjana Prakash  Desai)

….……………………….......J.           (Madan B. Lokur)

New Delhi; February 24, 2014

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