Jayanta Sil vs State Of Assam

CRIMINAL APPEAL NO. 1345 OF 2007

JAYANTA SIL .. APPELLANT(S)

vs.

STATE OF ASSAM .. RESPONDENT(S)

O R D E R

This is a statutory appeal arising out of the

judgment of the High Court dated 5th January, 2007.

The prosecution story is as under:

At about 10.00 p.m. on 28th August 1994 Jayanta Sil

the appellant and Dimbeswar Sil (since acquitted) were

returning from the house of Kripa Das after attending a

feast. They were also accompanied by the deceased Kandarpa and as the three were near the house of the deceased on PWD

Road the appellant assaulted the deceased with a sharp

cutting weapon. Hearing the cries of the deceased, the

complainant, PW.1- Bhadrata Das, the wife of the deceased,

came out from her house and saw the accused running away.

Her shouts attracted several other persons to the spot

including Mridul Das-PW.5 and Daya Chand-PW.6 who too

saw the accused running away.

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It also appears that soon after the incident

Biswajit Das-PW.2 and Uday Dutta-PW.3 also reached the

place from their houses some distance away and they too

were told by PW.1 as to what had transpired. The evidence

further is that Jayant, the appellant herein, rushed to the

house of Nisikanta-PW.11 in the same village and requested

him to let him stay for the night and when he left early

the next day, PW.11 saw that he had left behind a khukri

and a torch. The appellant and Dimbeshwar were accordingly

brought to trial for an offence punishable under Sec.302

read with Section 34 of the IPC. The Trial Court on a

consideration of the evidence held that the statement of

PW.1 could not be taken at its face value as there were

discrepancies in her statement made in the FIR vis.-a-vis.

the statement in Court and it appeared that she had not in

fact seen the incident nor had seen the accused running

away after committing the murder. Likewise it was held that the statements of PW.5 and PW.6 could not be believed as

they were not eye-witnesses and were not clear as to the

exact place where the incident had happened as there

appeared to be some uncertainty as to whether it had taken

place outside the house of the deceased or on the road

opposite the gate. The Trial Court also opined that it was

not believable that an accused would hang around long

enough so that he could be identified by PWs 5 and 6 as

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this was against normal human conduct. It was further held

that the story with regard to the recovery of a torch and the khukry from the house of PW.11 could not be believed

more particularly as the weapon had not been sent to the

laboratory to find out if it bore any bloodstains.

The Trial Court accordingly acquitted the accused.

An appeal was thereafter taken to the High Court.

The High Court has, by the impugned judgment, upheld the

judgment of acquittal with respect to Dimbeswar Sil but has

reversed the judgment qua the appellant and convicted and

sentenced him herein for an offence punishable under

Section 302. The High Court has held that there was no

reason whatsoever to disbelieve PW.1 or PWs. 5 and 6 as

they had no animus against the accused. The High Court also

observed that positive prosecution story was that the

appellant had used a cutting weapon to cut the neck of the

deceased and the medical evidence was that the major

structures in the neck including the carotid artery and jugular vein, the trachea etc. had been cut through and

through.

We have heard the learned counsel for the parties.

We see that PW.1 is the wife of the deceased. Admittedly

she had no animus against the appellant and had been

attracted to the place after hearing her husband's cries

for help. We have also seen the site plan and find that

the occurrence took place on the road virtually opposite

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the house of the deceased. In this situation it would make

no difference if it was near the gate or on the main PWD

road as it is the admitted position that the incident had happened right outside the house belonging to the deceased.

The presence of the PWs. 5 and 6 cannot also be doubted.

The deceased as well as these two witnesses had attended

the Shradh feast and the murder had taken place as all

three were returning from that place. We have also gone

through the evidence of PWs 5 and 6 and find that there is

no suggestion of any kind of animus or rancour between the

appellant and them. The statements of these three witnesses

are further corroborated by the statement of PWs 2 and 3 to

whom PW.1 had given the information and told them that the

appellant and Dimbeshwar had murdered her husband. The

statement of PW.11 is equally important even if the

recovery of the torch or the alleged murder weapon is ruled

out there is absolutely no doubt that his statement with

regard to the visit of the appellant to his house late at

night with a request that he be allowed to stay on cannot be disbelieved. This was indeed a strange request as we

find that the appellant and PW.11 belonged to the same

village and there is no plausible explanation as to why the

appellant chose to stay for the night in the house of

PW.11 and not to return to his own house a short distance

away.

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Mr. Soumyajit Pani the learned counsel for the

appellant has however cited Mahendra Pratap Singh vs. State

of Uttar Pradesh [(2009) 11 SCC 334] to contend that if two

views were possible on the evidence and the Trial Court had taken one in favour of an accused the High Court would

ordinarily not be justified in interfering in the matter.

It has been pleaded that the Trial Court had on a deep

consideration of the evidence taken a decision and

acquitted the accused and a contrary opinion was thus not

called for. As against this learned State counsel has

pointed out that it was equally well settled that while

dealing with an appeal against acquittal, the High Court

was fully justified in reappraising the evidence and to

interfere if the view taken by the Trial Court was not

possible on the evidence and was on the contrary perverse

and not to do so would amount to a miscarriage of

justice, and that the interests of the accused as well as

the interest of the State and the prosecution must be

balanced in such matters.

From a perusal of the judgment of the Trial Court we find that the view taken by the Trial Court was not

justified on the evidence. The Trial Court has completely

misread the implication of the evidence given by five

witnesses, three of them were virtually eye witnesses and

two of them being totally independent. The prosecution

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evidence is further corroborated by the Doctor's evidence

that the neck had been almost severed from the body by a

cutting weapon such as a khukri.

Accordingly, we dismiss the appeal. .................J. (HARJIT SINGH BEDI)

.................J. (C.K. PRASAD) New Delhi, August 4, 2010.