Bedarul Islam vs The State of West Bengal

Sahidullah Munshi, J.—1. This appeal being C.R.A. 178 of 2004 (Bedarul Islam v. State of West Bengal) is taken up for hearing with G.A. 25 of 2004 (The State of West Bengal represented by the learned Public Prosecutor, High Court, Calcutta v. Abdul Sayed and three others). C.R.A. 178 of 2004 has been filed by the accused Bedarul Islam against the order of conviction passed by the judgment and order dated 27th February, 2004 passed in Sessions S.L. Case No. 187 of 1996 re-numbered as Sessions Trial 1 of July, 2000 holding the accused-appellant Bedarul Islam guilty of offence under Section 302, Indian Penal Code and thereby convicting and sentencing him to suffer rigorous imprisonment for life and to pay a fine of Rs. 30,000/- (Rupees Thirty Thousand) only, in default of payment of such fine further rigorous imprisonment for two years more. G.A. 25 of 2004 has been filed by the State of West Bengal being an appeal under Section 378(1) of the Code of Criminal Procedure, 1973 against the selfsame judgment and order dated 27th February, 2004 holding accused Abdul Sayed, Ejarul, Tarikul and Mannan not guilty of the offence under Section 302/34 of the Indian Penal Code.

In brief, the Prosecution case is that on 27th June, 1992, between 7.30 a.m. and 7.45 a.m. one Mrinal Kanti Mitra aged about 55 years was murdered at Farakka Barrage Bridge Road, near lock gate at Ghaoraipara by the five accused persons, namely, Abdul Sayed, Bedarul Islam, Ejarul Sk., Tarikul Sk. and Mannan Sk.

It was the Prosecution case that the murder was committed by the said accused persons with common intention to murder the victim who was coming from barrage quarters to Bewa Sub-Post Office.

First Information Report was lodged by the de facto complainant Jagannath Das, who claims that Mrinal Kanti Mitra was his wife''s paternal uncle. Jagannath Das, in his FIR stated that on 27th June, 1992 at about 7.45 a.m. his uncle-in-law Mrinal Kanti Mitra was going to Bewa Sub-Post Office from Farakka Barrage quarters'' office and reached near lock side at Ghoraipara. One Abdul Sayed, his son Bedarul Islam and another son Manzarul attacked the victim.

In the FIR the de facto complainant has clearly stated that Abdul Sayed and his son Bedarul Islam, Manzarul Islam committed murder of his paternal uncle-in-law in front of him with the "henso" in their hand. The exact statement in Bengali may be quoted : "Abdul, Sayed o tar chhele Bedarul Islam, Manzarul Islam tader hater henso dia amar kakaswasur ke amar samne kupia mere fele dai. "

The de facto complainant further stated that there were many other persons in and around the place of occurrence who were cultivating their land, of whom Ekraful Mirza and Ferdous Mirza were known to him. They also saw the incident.

Jagannath Das further stated that the accused Abdul Sayed had illegally occupied various plots of the victim. Jagannath stated that the victim had sold those lands a few months back before the incident to some other persons and out of grudge Sayed and his sons committed murder. The said First Information Report has been marked as Ext. 1.

After investigation charge was framed against all the accused persons. To substantiate charges against the accused persons Prosecution has examined as many as 18 witnesses and the accused persons were questioned under Section 313 of the Code of Criminal Procedure about the incriminating evidence and circumstances, the accused persons denied the charges levelled against them and pleaded that they are innocent. Out of the said 18 witnesses PW 1, the FIR maker, Jagannath Das deposed on 6th July, 2000 that he is a man of Mouza Bewa, P.S. Farakka, District Murshidabad. The relevant portion of his deposition is quoted below:

"On 27th June, 1992 at about 7:30/7:45 a.m. I was proceeding towards Farakka market by my scooter. On that day I found from a distance as if some persons were striking another with hensua etc. As I proceeded near the said place I could identify the assailants. When I arrived very near to the spot I could identify the assailants. When I arrived near I found Sayed Sk. And his two sons, namely, Bedarul and Ejarul were fleeing away seeing me. I found Mrinal Kanti lying dead with huge number of cut injuries on various parts of his body including head."

PW 1 in his deposition stated that he found from a distance that some persons were striking another with a sharp cutting weapon and even he said when he reached very near to the place of occurrence he saw Sayed Sk., Bedarul and Ejarul were fleeing away. Nowhere in the deposition this witness has stated that he raised any alarm even when he was at a distance from the place of occurrence and when he saw first the incident. His reaction and behaviour being seeing the incident seems to be very unnatural in this case. A person claims to have seen everything but he did not raise any alarm although, he has stated that he saw other persons cultivating in the nearby field. This unnatural behaviour of PW 1 gives rise to a doubt about his trustworthiness.

In cross-examination the said PW 1 stated "I stated to darogababu while lodging the FIR that from a distance I had seen some persons striking on a person with hensua. I also stated before the Daroga babu that on arriving near the spot I found Sayed Sk., his two sons Bedarul and Ejarul were fleeing away." During cross-examination a question was put to him "I suggest it to you that initially you did not name Ejarul." In answer he says "yes, erroneously the name became Manzarul instead of Ejarul, which I requested darogababu to correct subsequently. Sayed does not have any son by the name of Manzarul. I stated this to darogababu on the same day i.e. on 27.6.92."

In cross-examination PW 1 further stated "it is true that Mrinal Kanti had a dispute with the accused Sayed over landed properties. I was also involved in the said land dispute between the deceased and the accused Sayed."

On recall of PW 1 for further cross-examination he said "PW 2, Ekraful Mirza and Ferdous Mirza, PW 3 are known to me. PW 2 and PW 3 are involved in the selfsame land dispute with the accused."

Ekraful Mirza, PW 2 deposed on 6th July, 2000. He is a man of Mouza Ghoraipara, P.S. Farakka in the District of Murshidabad. In his examination-in-chief he said "on 27.6.92 at about 7 a.m. I was cultivating land at a little distance from the lockgate. The said which I was cultivating is to the west to the road. I found Bedarul Sayed had come on the road, Bedarul had a hensua in his hand. Then I found Ejarul and Tarikul came there. I also found Mannan standing very nearby them. Seeing them in that position I became apprehensive. At that time after crossing the ferry ghat Mrinalkanti was coming along that road by riding his cycle for going towards Post Office. The moment Mrinalkanti arrived near them Bedarul struck Mrinalbabu with his hensua and as a result he fell down from his cycle. Sayed was directing Bedarul to strike and assault at different parts of his body. I raised alarm. Bedarul, Ejarul and Sayed started striking Mrinal babu. ''kopate suru korlo''. I raised alarm when, Mannan asked them to finish the life of Mrinalbabu quickly. Saying this Mannan and Tarikul started fleeing away. In the meantime Firdul Mirza, my younger brother, arrived there. He had seen the incident. At that time, Jagannath also arrived there by a scooter. He also saw the incident. Whatever I have already stated before the Magistrate at Jangipore Court." In further cross-examination on 13.7.2000 PW 2, Ekraful Mirza stated "... after the incident the accused persons fled away almost instantaneously. The accused persons fled away towards ferry ghat side.... When Jagannath arrived at the spot the accused persons were striking Mrinalbabu. Guri had arrived at the spot immediately before Jagannath arrived." PW 2 has also stated "the striking was finished within half a minute." PW 2, on recall by the Prosecution stated "Police after arriving at the spot seized some articles namely a cycle, wrist watch, a headgear, a bunch of keys of P.O. a bag containing certain passbooks of Post Office and the wooden butt of a hensua. I signed on the seizure list. This is my signature on the seizure list (Ext. 3). I made a statement before the Magistrate at Jangipore Court and after the statement was recorded it was read over to me and after acknowledging its correctness I put my signature thereon. This is my signature on the said statement recorded by the Magistrate (Ext. 4). All the accused persons whom I have named are present in Court today (identified)."

PW 2, on recall again stated on 25.09.2001 "P.W. 3 Ferdous Mirza is my brother. Bihar is nearer to our house. Many cases are being disposed of in Rajmahal court at Bihar. I do not know if the accused Sayed Sk filed criminal case against myself, my brother Ferdous and P.W. 1 Jagannath Das.

PW 3, Ferdous Mirza deposed on 13th July, 2000. He is a man of Ghoraipara, P.S. Farakka, District Murshidabad. He stated "... on that day at about 8 a.m. my truck was there near the lockgate, where we unloaded boulders. I sent the driver along with the truck for taking fuel. Within 5 minutes I found Mrinalkanti coming there on the road by a cycle. Tarikul and Ejarul intercepted him. Bedarul and Sayed started striking Mrinalbabu with hensua. Mannan asked them to kill Mrinalbabu as quickly as possible.... Tarikul and Ejarul field away towards ferry ghat. Then Mannan Bedarul and Sayed also went away towards ferry ghat side.... I stated this before the Magistrate in Jangipore Court."

On cross-examination, PW 3 stated "I stated it before the I.O. that Tarikul and Ejarul intercepted Mrinalkanti, when he was coming there on the spot in his bicycle. I also stated this before the Magistrate at Jangipore Court. I stated before the I.O. that Sayed assaulted Mrinalkanti with a hensua..." On recall on 25.09.2001 PW 3 again stated "accused Sayed filed a criminal case in the year 1983 against myself, my brother Ekraful and Jagannath Das in the court of Rajmahal, Bihar.

PW 4, Saroj Kr. Pal, deposed on 19th August, 2000. His evidence is hearsay evidence.

PW 5, Manabendra Banerjee of Farakka is also not a direct witness. His evidence is also hearsay evidence. He was present at the time of preparation of inquest report.

PW 6, Janardan Saha of Farakka deposed on 19th August, 2000. His evidence is also hearsay evidence.

PW 7, Prokash Ch. Sarkar was only tendered for cross-examination but cross-examination declined.

PW 8, Sabyasachi Das of Bewa deposed on 24th August, 2000. A post-occurrence witness and also a seizure list witness who was declared hostile. He was allowed to be cross-examined by the Prosecution but nothing comes out from him.

PW 9, Rajnarayan Chowdhury of Bewa deposed on 24th August, 2000. He is a seizure list witness.

PW 10, Nizamuddin Sk. of Bewa deposed on 24th August, 2000, is a Home Guard who carried the dead body to Autopsy Surgeon.

PW 11 is Balaram Pal of Hazarpur, deposed on 24th August, 2000. He is another Home Guard and was a seizure list witness.

PW 12, Bibhuti Saha of Farakka deposed on 24th August, 2000. He is also a Home Guard. Another seizure list witness.

PW 13, Seraj Sk. of Natun Ghoraipara. He is also a seizure list witness. Nothing comes out from his deposition.

PW 14, Pabitra Deb Mukherjee is the Doctor who conducted the post mortem examination of the deceased. He stated "in my opinion the death was due to shock and haemorrhage for the aforesaid injuries which are ante mortem and homicidal in nature.

These injuries may be caused by using hensua."

PW 15 is Motaferul Sk., a hearsay witness who was declared hostile. But in his cross-examination by the Prosecution he stated "I stated to I.O. that on the date of incident he was going to market for purchasing articles by his cycle. At about 8 a.m. accused Mannan, along with his sons cut out Mrinalbabu by hensua who was coming towards Bewa. At that time Mrinal babu had cap and torch and spectacle which were lying there. I also stated to I.O. that after cutting Mrinalbabu the accused persons Sayed, Mannan, Bedarul and others fled away through the field. I stated to I.O. that I found injuries on the several parts on the body of Mrinalbabu. I also stated to I.O. that there was a dispute on the issue of land between Mrinalbabu and the accused persons. I saw the accused persons murdered Mrinalbabu. I also stated to I.O. that Ekraful Mirza and Ferdous appeared on the spot at the relevant time. In the meantime Jagubabu also appeared on the spot." In cross-examination this witness says "I am not aware whether the accused persons have enmity regarding land dispute with Mrinalbabu or not. I am not involved regarding that case.

PW 16, M.L. Singha, Ex S.I. of Police, endorsed the case to Investigation Officer and put the formal FIR.

PW 17, N. Hazra is a S.I. of Police, who only submitted charge-sheet as the second Investigation Officer.

PW 18, Chandra Sekhar Bhattacharjee, S.I. of Police, who was the First Investigation Officer.

Upon consideration of the evidence and other materials on record the Trial Court, learned Additional Sessions Judge, Berhampour, Murshidabad, held Bedarul Islam guilty and convicted him of offence under Section 302 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for life and to pay fine of Rs. 30,000/- (Rupees Thirty Thousand) only, in default to suffer rigorous imprisonment for two years more. By the said judgment the learned Trial Judge found Bedarul, Sayed, Ejarul Sk., Tarikul Sk. and Mannan Sk. to be not guilty of the offence under Section 302/34 of Indian Penal Code and, accordingly, they have been acquitted from the offence under the said Sections. Against the said acquittal G.A. 25 of 2004 has been filed by the State of West Bengal. So far this G.A. is concerned, it has been agitated that the learned Trial Judge has committed gross error in passing an order of acquittal instead of conviction. On an analysis of the evidence adduced by the PW 1, PW 2 and PW 3 the learned Trial Judge has come to a finding that the materials against the other accused persons, namely, Sayed, Ejarul Hossain, Tarikul Sk. and Mannan Sk. are not so convincing unlike accused No. 2, Bedarul. According to the learned Judge, there are discrepancies regarding the involvement of other accused persons in the commission of the murder. We have no doubt in our mind that the evidence which is available on record is not sufficient for holding the accused persons Bedarul, Sayed, Ejarul Hossain, Tarikul Sk. and Mannan Sk. to be guilty of the offence complained of. No element of Section 34, Indian Penal Code has been established by the Prosecution and, therefore, there is no wrong committed by the learned Trial Judge in passing an order of acquittal against those accused persons. The order of acquittal is justified and does not call for any interference on the basis of the materials available on record.

Mr. Partha Sarathi Bhattacharya, learned counsel appearing for the accused/respondents in G.A. 25 of 2004 submits that the Appellate Court, in an appeal against order of acquittal should be slow in discharging the finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. In support of his submission Mr. Bhattacharya has relied on a decision in the case of Muralidhar alias Gidda & Anr. v. State of Karnataka reported in , (2014) 5 Supreme Court Case 730. The Hon''ble Apex Court in this judgment has categorically pointed out certain principles which are required to be followed by the Appellate Court in case of an appeal against an order of acquittal. Paragraph 10 and paragraph 12 of the said judgment are relevant for our purpose and those are set out below:--

"10. Lord Russel in Sheo Swarup, highlighted the approach of the High Court as an appellate court hearing the appeal against acquittal. Lord Russell said: (IA p. 404)

"... 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."

The approach of the appellate court in the appeal against acquittal has been dealt with by this Court in Tulsiram Kanu, Madan Mohan Singh, Atley, Aher Raja Khima, Balbir Singh, M.G. Agarwal, Noor Khan, Khendu Mohton, Shivaji Sahabrao Bobade, Lekha Yadav, Khem Karan, Bishan Singh, Umedbhai Jadavbhai, K. Gopal Reddy, Tota Singh, Ram Kumar, Madan Lal, Sambasivan, Bhagwan Singh, Harijana Thirupala, C. Antony, K. Gopalakrishna, Sanjay Thakran and Chandrappa. It is not necessary to deal with these cases individually. Suffice it to say that this Court has consistently held that in dealing with appeals against acquittal, the appellate court must bear in mind the following:

(i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court;

(ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal;

(iii) Though, the powers of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanour of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified; and

(iv) Merely because the appellate court on reappreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court."

In the referred case there were 37 witnesses examined by the Prosecution of whom PW 4 PW 5 and PW 15 were only the eyewitnesses. But the said witnesses turned hostile to the case of the Prosecution. There was a dying declaration too. However, the Sessions Judge (Trial Judge) passed an order of acquittal which was reversed in appeal by the High Court against which the appellants filed an appeal before the Supreme Court and the Hon''ble Apex Court allowed the appeal setting aside the judgment of the High Court. The facts and circumstances in the referred decision has got similarity with the facts and circumstances of the present case. In our view, in passing an order of acquittal the Trial Judge in the present case, has not committed any error and according to the referred decision of the Hon''ble Apex Court, we hold that the order of acquittal does not call for any interference.

Mr. Ranabir Roychowdhury, learned counsel appearing in support of G.A. 25 of 2004 submitted that the order of acquittal passed by the learned Trial Judge is liable to be set aside. According to him, on the evidence on record there was no scope for the learned Trial Judge to pass an order of acquittal. He has submitted that on a totality of these circumstances it reveals that all the accused persons are guilty. He has relied on a decision of the Hon''ble Apex Court in the case of Leela Ram (dead) through Duli Chand v. State of Haryana & Anr. reported in 2000 SCC (Cri) 222. In the said decision Sessions Judge passed an order of conviction based on the evidence on record. High Court reversed the same and passed an order of acquittal based on some minor contradictions. Supreme Court held that High Court ought not to have passed an order of acquittal of the accused based on such minor contradictions and Supreme Court allowed the appeal and set aside the judgment of the High Court. The case here is different. Here in this case the learned Trial Judge has arrived at a definite finding that the evidence adduced by the Prosecution in support of conviction of the accused persons is not sufficient.

Accordingly, G.A. 25 of 2004 is dismissed.

So far the appeal being C.R.A. 178 of 2004 preferred by the accused Bedarul Islam is concerned, some more discussions are required. The learned Trial Judge has come to a conclusion that other than Bedarul accused persons should be given benefit of doubt because PW 1, PW 2 and PW 3 have not seen those accused persons to have been striking the deceased with any weapon. But at the same time, the only eye-witnesses available in this case are PW 1, PW 2 and PW 3 and Prosecution claimed that on the basis of their evidence the present appellant has been convicted. We have to consider now whether the evidence on record adduced by the said so-called eye-witnesses PW 1, PW 2 and PW 3 are sufficient to hold the appellant guilty and whether order of conviction could have been inflicted upon him in the facts and circumstances of this case.

In this case FIR has been lodged by PW 1, Jagannath Das. FIR is not a substantive piece of evidence but it has to be corroborated by the oral testimonies. In the FIR PW 1 stated that he saw the occurrence of murder of the victim. He stated at the time of occurrence he was coming towards the barrage on a scooter. He stated that he had seen Abdul Sayed, his sons Bedarul Islam and Manzarul Islam striking by ''hensos''. If the oral testimony of PW 1, PW 2 and PW 3 is taken into consideration, it appears that the FIR has not been corroborated by the oral testimony. In his oral testimony PW 1 has stated that he was proceeding towards Farakka market on his scooter before he saw the incident. First he stated that on 27.06.1992 at about 7:30/7:45 a.m. he was proceeding towards Farakka market by his scooter. Then again he said he was proceeding towards Farakka by his scooter. He said he found from a distance as if some persons were striking another with hensua. He says, he identified the assailants when he arrived very near to the spot and the assailants were, according to him, Sayed Sk. and his two sons Bedarul and Ejarul. He saw them fleeing away when he arrived very near to the spot. In the FIR he said Abdul Sayed, his sons Bedarul Islam and Manzarul attacked Mrinal Kanti Mitra, the deceased. There was no story of their fleeing away from the spot and he said that he was coming towards the barrage on scooter. There is lot of contradictions between the oral testimony and what he has stated in the written complaint. Farakka barrage and Farakka market are two different places. He had been proceeding towards Farakka market according to his oral testimony. He has not explained how he reached the place of occurrence and where exactly the place of occurrence was. According to his FIR, place of occurrence was near lock side at Ghoraipara but the witness has not given any description with regard to the distance between Farakka market and the place of occurrence and that of the Farakka barrage. This gives rise to clear doubts in our mind as to whether PW 1 was present at the spot and saw the occurrence. The description which has been given by the FIR maker might not be true which is evident from his oral testimony made before the Court. Further discrepancies we find that in the FIR he gave the name of one Manzarul to be son of Abdul Sayed. In his oral testimony he has justified that erroneously he took the name of Manzarul but actually it would be Ejarul. In his statement under 161 he has stated before the Investigation Officer that Manzarul was an innocent person and instead it would be Ejabul. He has mentioned the name of Ejabul in 3-4 places in his 161 statement. But in his oral testimony he has described the other son of Abdul Sayed as ''Ejarul''. This aspect also gives rise to a serious doubt as to whether on the date of making of the FIR the FIR maker had really seen Ejarul on the spot or he has just made a false statement in his FIR. One other important but doubtful aspect is that in the entire deposition nowhere indicated how this PW 1 had pre-acquaintance with the accused persons particularly the sons of Sayed. Nothing has been indicated in his deposition as to he had acquaintance with all the accused persons he named in his FIR. So far Sayed we can understand that there was some pending litigation between him and the accused Sayed but so far his sons and other accused persons, namely, Tarikul and Mannan he did not spend any word as to how he knew them. In the FIR he has stated all three persons he saw Abdul Sayed, Bedarul and Manzarul had hensua in their hands as if they were all holding hensua in their hands and that is what he has stated in his FIR. We have gone through the Bengali version of the FIR and there is no doubt in our mind that the FIR maker tried to state that all these three persons had sharp cutting shickle shaped weapon in their hands. But in the oral testimony his such statement in the FIR is not at all corroborated. In the 161 statement this FIR maker has clearly stated that Manzarul was an innocent person and he had taken his name by mistake. Therefore, it creates a suspicious situation again that there is some person named Manzarul whether he saw that Manzarul on the spot or Ejabul (Ejarul) according to his 161 statement on the spot is very very doubtful. This creates a doubt in our mind that he saw the accused persons when he reached very near to the spot is unbelievable. It also creates a doubt as to whether he really went to the spot and saw the occurrence in his own eyes or he made the FIR in order to implicate Abdul Sayed and his sons. In the cross-examination the witness PW 1 stated that "some persons striking on a person with hensua." This part of the testimony corroborates with his version in the FIR where he stated "Abdul Sayed, son of Jahur Ali, his son Bedarul Islam and another son Manzarul attacked my uncle-in-law, Mrinal Kanti Mitra with hensua in their hands." We have seen the Bengali version of the written complaint where he clearly intended to say that all three persons had such sharp cutting weapons in their hands which he confirms in his cross-examination. This part of the evidence is contradicted by the other eye-witnesses which we will discuss later on.

If the statement of PW 1 in his FIR is to be believed then it reveals that he was the only person reached very near to the place of occurrence and according to him PW 2 and PW 3 were not at the place of occurrence but they were cultivating their lands near the place of occurrence. But if PW 2 is to be believed, according to him, he was the only person at the place of occurrence he saw the accused persons Bedarul, Ejarul and Sayed striking the victim. He raised alarm and saw two other accused persons, namely, Mannan and Tarikul started fleeing away. He said in the meantime his brother PW 3 arrived at the spot. According to him, after arrival of PW 3, only Jagannath PW 1, arrived there on scooter, but PW 1 does not say this. PW 1 says he saw PW 3 cultivating, whereas PW 3 says he was unloading boulder near the lock gate at 8 a.m. According to PW 3, he says within 5 minutes thereafter he saw the victim coming by a bicycle and he was intercepted by Tarikul and Ejarul while Bedarul and Sayed started striking the victim. He, however, does not say that he saw either PW 1 or PW 2 at the place of occurrence. In cross-examination PW 3 said he say Sayed assaulted the victim not Bedarul.

Apart from other contradictions apparent on the face of the oral testimonies, it is to be noted that if PW 1 is to be believed except him no other persons were at the place of occurrence. If PW 2 is to be believed PW 3 reached before PW 1 and falsifies the statement of PW 1 in the FIR. If PW 3 is to be believed he has not mentioned any one''s name who had seen the incident. This PW 3, however, has contradicted himself in cross-examination. In his examination-in-chief he says Bedarul and Sayed started striking Mrinal Babu but in cross he says Sayed assaulted Mrinal Babu with hensua. These contradictions raise serious doubt about the trustworthiness of the witnesses. PW 1 at last in his oral testimony in the cross-examination said "it is true that Mrinalkanti had a dispute with the accused Sayed over landed properties. I was also involved in the said land dispute between the deceased and the accused Sayed." (Emphasis supplied by the Court) This portion of the oral testimony raises a serious doubt in our mind whether PW 1 was an independent witness or an interested witness to penalise Abdul Sayed and his sons because of his previous enmity as indicated in his cross-examination by his involvement in the land dispute with the accused person. If the testimony of the PW l is independently assessed we are of the clear view that such a witness should not be believed and we have serious doubts about whether he has stated correctly as to his presence in the place of occurrence and the statement as to what he had originally seen. Let us now discuss the reliability of the other two witnesses, PW 2 and PW 3. PW 2 is Ekraful Mirza whose name was taken by the FIR Maker in the FIR itself and according to FIR maker Ekraful, PW 2 and Ferdous, PW 3 were cultivating their lands near the place of occurrence on the selfsame day. FIR maker stated in his FIR that many others were cultivating land in the nearby area but he knew only Ekramul Mirza and Ferdous Mirza among them who were also cultivating. According to the FIR maker they had seen the occurrence. PW 2, in his oral testimony, stated "he was cultivating land at a little distance from the lock gate. According to him he saw Bedarul land Sayed to come on the road. He saw Bedarul had a hensua in his hand then he found Ejarul very near to them. He became apprehensive seeing the said persons in that position. He says at that time after crossing the ferry ghat Mrinalkanti was coming along that road by riding his cycle for going towards Post Office. He says as soon as Mrinalkanti arrived near them Bedarul struck Mrinalbabu with his hensua and as a result he fell down from his cycle." Here the oral testimony of PW 2 clearly says Bedarul struck Mrinalbabu with his hensua and as a result, he fell down but he does not say about other accused persons striking the victim with weapon. However, he has said only Bedarul had hensua in his hand in his testimony and others to come there. Then he again said "I raised alarm. Bedarul Islam and Sayed started striking Mrinalbabu." He further says "in the meantime Firdul (sic Ferdous) Mirza, my younger brother arrived there. He had seen the incident. At that time Jagannath also arrived there by a scooter." If this part of the oral testimony of PW 2 is taken into consideration to be true then Jagannath came later than the arrival of PW 2 at the spot. When PW 1 deposed he did not in his oral testimony indicate as to whether PW 2 was present on the place of occurrence or not. This also creates a suspicious situation as to whether PW 2 has correctly deposed before the Court that he was present at the spot when the victim was assassinated. When this witness PW 2 says Bedarul, Ejarul and Sayed started striking Mrinalbabu when in the same breath he said he found Bedarul had hensua in his hand, appears to be self contradictory. On the same day within a gap of few seconds a witness is not expected to make such a contradictory statement and this has got a very serious consequence giving rise to a question as to whether he was making true statement in his deposition before the Court or not. If, according to him, Bedarul alone had hensua in his hand then it is not understood as to how Bedarul, Ejarul and Sayed could have started striking Mrinal babu at the same time. These contradictions have not been correctly noted by the learned Trial Judge and as a result of which he found Bedarul to be guilty of the offence complained of. There is another reason why the testimony of this witness becomes doubtful, because he is an inimical witness as has been indicated by PW 1 when he was recalled for further cross-examination he said "PW 2, Ekraful Mirza and Ferdous Mirza, PW 3 are known to me. PW 2 and PW 3 are involved in the selfsame land dispute with the accused." Therefore, this appears to be true that there were some enmity between accused Sayed and PW 1, PW 2 and PW 3. Might be for such reason PW 1 took the names of PW 2 and PW 3 out of many cultivators to have known to him who according to him, could reveal the truth. But, unfortunately, this is otherwise which is evident from a comparison of the deposition made by PW l, PW 2 and PW 3. The evidence of one eye-witness destroys the truthfulness of the evidence of the other eye-witness. So far we have seen evidence of PW 1 and PW 2 contradicts each other and we are still not above the doubt regarding the presence of PW 1 and PW 2 on the spot at the time of occurrence as has been claimed by both of them. Apart from the fact that there is a history of enmity of both PW 1, PW 2 and PW 3 with that of the accused Sayed. It is to be further mentioned that in the FIR PW 1 said that many persons were cultivating their land near the place of occurrence and among them Ekraful and Ferdous were known to him. This part of statement is also not correct as will be revealed from the testimony of PW 3 who was not a cultivator and was not cultivating the land rather he was unloading boulders from his truck near the spot as he claimed in his oral testimony. In his cross-examination PW 2 said that he was cultivating land to the west of lock gate at the time of incident and that when he was cultivating the land there were three persons cultivating their lands at that time. Surprisingly, however, those other persons were never produced by the Prosecution for giving evidence. This witness further said "when Jagannath arrived at the spot the accused persons were striking Mrinalbabu. Guri had arrived at the spot immediately before Jagannath arrived." This statement of PW 2 gives rise to a clear doubt again as to the number of persons seeing the occurrence and who are they; who had been striking Mrinal babu whether one or more persons were involved, it is serious a doubt. It is also in doubt as to who arrived first at the spot, Jagannath or Ekraful or Guri @ Ferdous. One striking feature of his evidence is an indication again about involvement of criminal cases between the witnesses and the accused Sayed. Although, this witness denies his involvement or the involvement of his brother or PW 1, Jagannath with that of Sayed, the accused, but it will be borne out to be false when the evidence of PW 3 is taken into consideration. On recall on 25.09.2001 he says "accused Sayed filed a criminal case in the year 1983 against myself, my brother Ekraful and Jagannath Das in the Court of Rajmahal, Bihar.

So far the oral testimony of Ferdous Mirza, PW 3, we find this witness has said some other thing. He says Bedarul and Sayed started striking Mrinal Babu with hensua. It will be profitable if we quote the relevant portion of the testimony of PW 3. He says "on that day at about 8 a.m. my truck was there near lock gate where we are unloading boulders. I sent the driver along with the truck for taking fuel. Within 5 minutes I found Mrinalkanti coming there on the road by a cycle. Tarikul and Ejarul intercepted him. Bedarul and Sayed started striking Mrinalbabu with hensua. Mannan asked them to kill Mrinalbabu as quickly as possible." Firstly, with regard to the particular time of occurrence there appears two different statements by this witness and the other witnesses claimed to be eye-witnesses of the incident. Whereas PW 2 said Bedarul, Ejarul and Sayed started striking the victim. In cross-examination this witness said "I stated before the I.O. that Sayed assaulted Mrinalkanti with a hensua." However, at last this witness on recall said "on 25.9.2001 accused Sayed filed a criminal case in the year 1983 against myself, my brother Ekraful and Jagannath Das in the Court of Rajmahal, Bihar.

On a careful analysis of the oral testimonies of the three witnesses PW 1, PW 2 and PW 3 it appears to us firstly that those witnesses are not trustworthy at all because of the contradiction among them. When one eye-witness has contradicted another it is better not to rely upon such witnesses or to hold that they are not stating truth before the Court. In such circumstances, the accused should be given benefit of doubt and such benefit should go to the accused person in favour of his acquittal. It is important to point out that on 30th November, 1992, about six months after the incident took place statement of Ekraful Mirza, PW 2 was recorded under Section 164 of the Code of Criminal Procedure. In the 164 statement he said that he saw Sayed, Mannan and Bedarul with hensua. In another place he said that he saw Bedarul was striking Mrinal Mitra. Besides the contradiction we have noted in the 164 statement itself the contradictions are apparent in his deposition before the Court. This 164 statement was marked Ext. 11. The Prosecution has omitted to examine the learned Magistrate. Statement of Ferdous Mirza was also recorded on 30th November, 1992 under Section 164 of the Code of Criminal Procedure. That recording was also made after about six months of the incident but the same has not been proved by the Prosecution. In the said 164 statement Ferdous said Bedarul and Sayed had been striking the victim.

On a careful reading of the said two exhibits, Ext. 11 and Ext. 12 it can be said that the contents of the said two Exhibits differ from the deposition made before the Court. In passing an order of conviction the learned Trial Judge has held - "thus, name of Bedarul is transpiring from all the three witnesses that is PW 1, PW 2 and PW 3 without any doubt. During cross-examination I find that the death and injury of the victim Mrinal has been admitted." This part of the finding of the learned Trial Judge is not based on the materials on record. What he has meant by "death and injury of the victim Mrinal has been admitted" is not understood and how could it be said that there is no doubt about the involvement of Bedarul in the killing of the victim into the testimonies of PW 1, PW 2 and PW 3 when they mutually destroyed the evidence of each other. And on the basis of such so-called admission the Trial Judge has observed "thus it has become easier for the Prosecution to establish the case against Bedarul under Section 302, IPC. With due respect to the learned Trial Judge we hold that this finding is not correct. So far the present appeal by the accused (C.R.A. 178 of 2004) the learned counsel Mr. Bhattacharya appearing for the accused/appellant has pointed out various discrepancies in the judgment and order of conviction passed by the learned Trial Judge. He has pointed out that questions were not properly placed before the accused so that he could understand about the incriminating evidence against him. In this regard Court has failed to discharge its duties assigned under the Statute. We find that questions were put to the accused persons and he denied that he is not guilty. He pleaded innocent. However, no objection was made on behalf of the Defence with regard to the manner of putting the questions and that apart, no prejudice, we find, has been caused to the accused persons. He cited a decision in the case of Asraf Ali v. State of Assam reported in , (2008) 16 Supreme Court Cases 328. In the referred case the examination under Section 313 of the Code was rendered an empty formality and on this ground the impugned judgment of the High Court was set aside so also the conviction. But the facts and circumstances of the said case is not identical to the present one and the ratio decided in the said judgment cannot be made applicable here particularly in view of the fact that no objection was raised by the Defence at the trial. Mr. Bhattacharya has pointed out the infirmities in the judgment under appeal that it is not based on the evidence particularly that the reliance made by the Trial Judge on the evidence of PW 1, PW 2 and PW 3 were unjustified. Mr. Bhattacharya points out that although, seizure list was made but seizure articles were never produced for proper identification and only signature on the seizure list was proved. This is a vital mistake on the part of the Prosecution. But on such submission we are not satisfied that simply because the seizure articles were not produced for identification, the accused can be acquitted on that ground. However, as has been pointed out by Mr. Bhattacharya it is correct that the statement of the PW 2 and PW 3 do not match with what they have stated during their examination in Court and that being so the accused is certainly to gain out of it. Mr. Bhattacharya also pointed out that although, independent witnesses were available at the place of occurrence no explanation was forthcoming regarding non-examination of those independent witnesses. This is also fatal for the Prosecution case. He submits that the appellant is entitled to acquittal.

Mr. Roychowdhury appearing for the State supported the conviction of the accused/appellant. He has reiterated that PW 1, PW 2 and PW 3 were all eye-witnesses and the learned Court below has committed no error in relying on the evidence of such witnesses. According to him, the conviction made by the learned Trial Judge based on such evidence is appropriate and the same should be upheld. He has relied on a decision reported in Leela Ram (dead) through Duli Chand v. State of Haryana & Anr. reported in 2000 SCC (Cri) 222. This judgment has been discussed by us earlier on the question of acquittal but he has also relied on this judgment on the issue of appreciation of evidence. He has submitted that evidence should be considered from the point of trustworthiness, however, we have discussed earlier that the trustworthiness of PW l, PW 2 and PW 3 is in serious doubt. This decision, however, does not help to uphold Mr. Roychowdhury''s submission. He has relied on another decision in the case of Lal Bahadur & Ors. v. State (NCT of Delhi) reported in , 2013 (3) Supreme 47. This judgment, however, has considered the decision in the case of Leela Ram (supra). In this decision the Hon''ble Apex Court held that minor discrepancies in evidence are to be ignored especially, so when the facts so demand. Paragraph 11 and 13 of the said judgment may be quoted below:--

"11. The court shall have to bear in mind that different witnesses react differently under different situations : whereas some become speechless, some start wailing while some others run away from the scene and yet there are some who may come forward with courage, conviction and belief that the wrong should be remedied. As a matter of fact it depends upon individuals and individuals. These cannot be any set pattern or uniform rule of human reaction and to discard a piece of evidence on the ground of his reaction not falling within a set pattern is unproductive and pedantic exercise.

In this context reference may be made to the decision of this Court in the case of Appabhai and another v. State of Gujarat, , AIR 1988 Supreme Court 696 wherein this Court in paragraph 11 of the report observed:

"Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The Court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused. The Court however must bear in mind that witnesses to a serious crime may not react in a normal manner. Nor do they react uniformly. The horror stricken witnesses at a dastardly crime or an act of egregious nature may react differently. Their course of conduct may not be of ordinary type in the normal circumstances. The Court, therefore, cannot reject their evidence merely because they have behaved or reacted in an unusual manner."

In paragraph 13 of the report this Court further observed:

"The Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The Court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the Court., The courts, however, should not believe the evidence of such witnesses altogether if they are otherwise trustworthy."

The law in India that the Prosecution is to establish its case beyond all reasonable doubt; falsity of the Defence is not material. One of the cardinal principles which have always to be kept in view in our system of administration of justice for criminal cases is that a person arraigned as an accused is presumed to be innocent unless that presumption is rebutted by the Prosecution by production of cogent evidence which may show him to be guilty of the offence with which he is charged as held by the Hon''ble Apex Court in Kali Ram v. State of U.P. reported in , AIR 1973 SC 2773. The burden of proving the guilt of the accused is upon the Prosecution and unless it relives itself of that burden, the Courts cannot record a finding of the guilt of the accused. There are certain cases in which statutory presumptions arise regarding the guilt of the accused. But leaving aside the cases of statutory presumptions the onus is upon the Prosecution to prove the different ingredients of the offence and, unless it discharges that onus, the Prosecution cannot succeed. As held by the Hon''ble Apex Court in State of Assam v. Velu Seth reported in , AIR 1989 SC 1097 where in a murder case the evidence far from being of a compulsive nature was not free from infirmities and doubts and the Prosecution evidence did not conclusively establish that deceased were in possession of the paddy field and they had raised the paddy crop and in spite of which they were forcibly sought to be dispossessed by accused on the day in question and the evidence was not cogent and clear to show that it was the accused who had caused the injuries to the victims and it was not explained why no report was given to the police authorities till the sub-Inspector himself came to the village or as to why no statement of one of the deceased was got recorded by the Magistrate even though he was alive for about 9 days after the occurrence and the Prosecution had not explained how two of the accused came to sustain injuries on their person, the accused is liable to be acquitted.

Under Section 105, Evidence Act, the Court shall presume the absence of circumstances bringing the case within any of the exceptions, that is, the Court shall regard the non-existence of such circumstances as proved till they are disproved. The presumption may be rebutted by the accused by adducing evidence to support the plea of accident in the circumstances mentioned in Section 80, Indian Penal Code. It may also be rebutted by admissions made or circumstances elicited by the evidence laid by the Prosecution or by the combined effect of such circumstances and the evidence adduced by the accused. But the Section does not in any way affect the burden that lies on the Prosecution to prove all the ingredients of the offence with which the accused is charged and that burden never shifts.

As held by the Hon''ble Apex Court in Amar Singh v. State of Madhya Pradesh reported in 1991 Cr.L.J. 1077 (MP), in a murder case the Trial Court is charged with the supreme duty of making proper appreciation of evidence and of law before reaching the finding that the case proved is culpable homicide amounting to murder as defined in Section 300, Indian Penal Code. This Constitutional duty flows from Article 21 because conviction under Section 302, Indian Penal Code, is liable to expose the accused to the extreme penalty, that the deprivation of life in regard to which the Court must follow reasonable procedure of due application of mind. Section 300, Indian Penal Code in terms contemplates : "except in the cases hereinafter excepted, culpable homicide is murder." Therefore, attention has to be paid by the Court to the exceptions of Section 300 and consideration of the case of accused in terms of the exceptions is mandatory requirement of law and Constitution. Even if any particular exception is pleaded and that is not proved, by that the duty of the Trial Court does not cease in regard to consideration of the case of the accused under other exceptions.

It may at this stage be recalled that when a law visits a person with serious penal consequences extra care must be taken to ensure that those whom the legislature did not intend to be covered by the express language of the Statute are not roped in by stretching the language of the law. In this context, the sweep of Article 21 may be discussed in brief. It is better to start with the landmark decision of the Supreme Court in a case (Maneka Gandhi v. Union of India reported in , AIR 1978 SC 597 where a Seven- Member Bench of the Supreme Court held that concept of reasonableness must be projected in the procedure contemplated by Article 21, Constitution of India. That Article reads that no person shall be deprived of his life or personal liberty except according to the procedure established by law. Bhagabati, J., in Maneka Gandhi''s (supra) case stated that the principle of reasonableness is legally and philosophically is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresent and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14 of the Constitution. Where the question of vires of death penalty as an alternative punishment for murder was on the anvil, the Supreme Court explaining the aforesaid proposition observed that Article 21 in the context of interpretation put to in Maneka (supra) is "no persons shall be deprived of his life or personal liberty except according to fair reasonable and just procedure established by valid law." After Maneka Gandhi, it can hardly be disputed that the law (it has to be understood in the sense the expression has been defined in clause (3) (a) of Article 13 of the Constitution). In Article 21 has to answer the test of reasonableness and fairness inherent in Articles 19 and 14. In other words, such law should provide a procedure which is fair reasonable and just. Then alone, would it be in consonance with the command of Article 21 as held by the Hon''ble Apex Court in A.R. Antulay v. R.S. Nayak reported in (1992) 1 Crimes 193 (SC).

It has also been held by the Hon''ble Apex Court in A.K. Roy v. Union of India reported in , AIR 1982 SC 710 that The word ''establish'' is used in Article 21 to denote that the procedure prescribed by law must be defined with certainty in order that those who were deprived of their life or liberty must know the precise extent of their deprivation. A wrong appreciation of evidence entailing unjust and illogical conviction of an accused, therefore, will result in gross violation of Article 21. Appreciation of evidence being a stage in the procedure established by law must have stamp of reasonableness all through. So it is obvious that utmost care and caution should be bestowed by shifting the evidence of a murder case. In Dharam Singh v. State of Punjab reported in , AIR 1993 SC 319 the Hon''ble Apex Court held that the enmity between the accused and deceased and witnesses was fully established and there were many improbabilities in FIR also. It was held that conviction of accused in these circumstances was not sustainable. The facts and circumstances of this case has got similarity with the case which are dealing now and relying on principles laid down in Dharam Singh''s (supra) case we can safely conclude that Prosecution could not be successful in proving the guilt of the appellant beyond all reasonable doubt. The learned Trial Judge clearly fell in error in holding the accused/appellant guilty of the offence complained of.

We have gone through the evidence and relevant Exhibits very carefully and it is our considered view that there are discrepancies in the evidence which prompted us to doubt the veracity of the statement made by the three prime witnesses in this case. Probabilities are important elements of consideration where the evidence appears unreliable and is directly conflicting. We are very much cautious about the duty of the Court to see that no innocent person is punished and also we equally see that the person regarding whom there is clear evidence of commission of crime should not be let free. On a totality of the circumstances scrutinized by us it appears that the so-called eyewitnesses cannot be believed to have given the correct picture; their infirmities and inconsistencies in the deposition do not inspire confidence of the Court and the evidence does not seem to be worthy of credence, in particular that all the three eye-witnesses, that is, PW 1, PW 2 and PW 3 were involved in a criminal proceeding initiated by accused Sayed. This initiation of criminal proceeding by accused Sayed might have led the witnesses to somehow implicate accused Sayed and his sons. This is one of the vital reasons we doubt the correctness of the evidence of the said witnesses.

We, therefore, hold that the appellant is entitled to get benefit of doubt and the order of conviction is liable to be set aside. We, accordingly, set aside the order of conviction. His bail bond shall stand discharged. The appeal being C.R.A. 178 of 2004 is allowed.

The Criminal Section is directed to send down the lower Court records together with a copy of the judgment forthwith to the concerned learned trial Court.

Urgent Photostat certified copy, if applied for, be delivered to the learned counsel for the parties, upon compliance with all usual formalities.

Indira Banerjee, J.—I agree.