Nimai Ghosh vs The State Of Bihar Now Jharkhand

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 102 OF 2013

NIMAI GHOSH & ORS. APPELLANT(S)

VERSUS

THE STATE OF BIHAR (NOW JHARKHAND) RESPONDENT(S)

J U D G M E N T

J.K. Maheshwari, J.

1. Challenging the findings recorded by High Court

of Jharkhand in judgment dated 02.08.2012 passed in

Government Appeal (DB) No. 31 of 1998, convicting the

appellants for the charges under Section 302/34 of

Indian Penal Code, 1860 (in short ‘IPC’) and Section

27 of the Arms Act, 1959, by setting-aside the

judgment of acquittal dated 02.04.1998 of Additional

Sessions Judge, Pakur, in Sessions Trial No. 148 of Signature Not Verified Digitally signed by NIDHI AHUJA Date: 2025.07.10 17:30:59 IST 1990, the present appeal has been preferred by the Reason:

accused-appellants.

1 CRIMINAL APPEAL NO. 102 OF 2013

2. The necessary facts in brief are, P.S. Case No.

127/89 was registered by Shyama Ram, A.S.I., the

Investigating Officer (PW–11) on the basis of

fardbeyan of Janmejay Ghosh (PW–8, informant and son

of deceased) on 09.07.1989 at 05.30 a.m. The incident

allegedly took place on 08.07.1989 at around 4 p.m.,

in which one Manmohan Ghosh (father of the informant)

was murdered. The P.S. Case was registered against

six accused persons namely (i) Nimai Ghosh; (ii)

Sonachand Ghosh; (iii) Sambal Ghosh; (iv) Gaya Nath

Ghosh; (v) Shridhar Ghosh and (vi) Sachin Ghosh.

After investigation, challan was filed against all

accused persons. The prosecution was unable to prove

the case beyond reasonable doubt leading to acquittal

of all the accused persons. On filing appeal by the

State, the High Court dismissed the same qua three

accused persons sustaining their acquittal, however,

by partly allowing the appeal qua other three accused

persons namely (i) Nimai Ghosh; (ii) Sonachand Ghosh

and (iii) Sambal Ghosh, they have been convicted for

the offences as charged, hence, this appeal.

3. As per case of prosecution, on 08.07.1989 at 2 CRIMINAL APPEAL NO. 102 OF 2013

about 3 p.m., the deceased Manmohan Ghosh accompanied

with his son Janmejay Ghosh (PW–8), Megh Nath Ghosh

(PW–5, nephew of deceased on maternal side) and

Shankar Ghosh (PW–2, nephew of deceased on paternal

side), started on bicycles from village Malaypur to

visit Pakur, where the house of the deceased was

under construction. Around 4 p.m., when they reached

the railway bridge near village Dadpur, Janmejay

Ghosh saw Nimai Ghosh and Sonachand Ghosh

(appellants–accused) came from eastern side of the

railway under bridge. Co-accused Gaya Nath Ghosh,

Shridhar Ghosh, Sachin Ghosh and Sambal Ghosh also

came from the western side of the bridge. Accused

Nimai Ghosh and Sonachand Ghosh were armed with

pistol and they forcibly dragged the deceased under

the railway track, where Nimai Ghosh fired on the

back of the deceased, as a result of which deceased

fell down and started bleeding. Co-accused Sonachand

Ghosh shot second fire with intention to kill him. In

the meantime, while the deceased was bleeding and

withering, Sambal Ghosh assailed him by means of

knife, as such the deceased succumbed to the 3 CRIMINAL APPEAL NO. 102 OF 2013

injuries. As further alleged, the entire incident was

witnessed by Janmejay Ghosh (PW–8), Megh Nath Ghosh

(PW–5) and Shankar Ghosh (PW–2) and when alarm was

raised by them, accused persons threatened to kill

them. Fearing the same, they could not save the

deceased. Thereafter, the accused persons left the

place and moved towards Purab Jheel. The motive for

the incident attributed in the fardbeyan is of

previous enmity and prior litigation of deceased with

accused Gaya Nath.

4. On 09.07.1989, the next day of incident, at

around 5.30 a.m., the Investigating Officer (PW–11)

reached the place of scene and recorded the statement

of Janmejay Ghosh (PW–8). Later, the investigation

was carried out by Dinanath Ram (PW–10). The post-

mortem was conducted by Dr. S.K. Gupta (PW–1) on

09.07.1989, wherein following injuries were found –

(i) One injury having one inch diameter round shape with burnt periphery on the angle of left scapula entrance wound;

(ii) One injury to the continuation of injury no. 01 on the left side of the chest, triangular shaped 4" above medial 5" 4 CRIMINAL APPEAL NO. 102 OF 2013

lateral 6’ forming a cavity fracturing a bone spanding ribs and puncturing the lungs, aorta, heart and surrounding structure exit;

(iii) One injury on the back by the X ride of the vertible columns 2" above the waist 1/2" x 1/2" with lacerated margins;

(iv) One incised wound on the left side on neck 2" x 1/4" x muscle deep;

(v) One incised wound on the face by the right side of the nose 1/2" x 1/6";

(vi) One incised wound on left iliac crest 1 and 1/2" x 1/4" x skin deep.

Out of these, injury nos. 1 and 2 were of

firearms and other injuries except injury no. 3 were

incised. Injury No. 3 was a lacerated wound on the

left side of the vertical column above neck. As

opined, the cause of death was due to injury no. 1

and 2 leading to massive intra thorax hemorrhage and

shock. After completion of investigation, the charge-

sheet was filed, and the case was committed to the

Court of Sessions for trial.

5. The charges for offence under Section 302/34 of

IPC read with Section 27 of the Arms Act were framed.

5 CRIMINAL APPEAL NO. 102 OF 2013

The accused persons abjured the guilt and demanded

trial taking defence of false implication because of

previous enmity and pending litigation. The

prosecution examined Shankar Ghosh (PW–2), Megh Nath

Ghosh (PW–5) and Janmejay Ghosh (PW–8) as

eyewitnesses. The prosecution further examined Manjur

Rahman (PW–4), Mahadev Ghosh (PW–6), Saidul Rahman

(PW–9) as chance witnesses. On due appreciation of

material placed on record, the trial Court was of the

opinion that in the facts of the case, testimonies of

the witnesses cannot be believed and moreover,

material contradictions qua injuries and the weapon

possessed by the accused persons are there. Neither

the recovery of the weapon has been made out, nor any

ballistic or scientific evidence connecting overt act

of the accused persons is on record. The trial Court

also found that the conduct of the eyewitnesses is

absolutely doubtful as none of them intimated the

police about the incident that took place at about 4

p.m. on 08.07.1989. PW–11 stated that he got

intimation about the occurrence over phone by

someone, however, no clear proof has come in this 6 CRIMINAL APPEAL NO. 102 OF 2013

regard in the testimony. In such situation, the trial

Court was of the opinion that the testimonies of

eyewitnesses or chance witnesses are not worthy to be

relied upon for proving the guilt of the accused

persons, in particular looking to the previous enmity

and the litigation pending between deceased and co-

accused Gaya Nath Ghosh. As such, all the accused

persons were acquitted from the charges because the

prosecution failed to prove the case against them.

6. On filing appeal before the High Court, it was

partly allowed qua Nimai Ghosh, Sonachand Ghosh and

Sambal Ghosh. The High Court by the impugned judgment

convicted all the appellants for the charges under

Sections 302/34 of IPC and further convicted accused

Nimai Ghosh and Sonachand Ghosh for charge under

Section 27 of the Arms Act, inter–alia observing that

the defence to disprove the charge cannot be believed

when the testimonies of the eyewitnesses are

consistent with respect to the incident, corroborated

by the statements of chance witnesses. The High

Court, believing the testimonies of those witnesses,

set–aside the judgment of acquittal of trial Court so 7 CRIMINAL APPEAL NO. 102 OF 2013

far as the appellants are concerned, noting that

active role of the appellants in commission of

offence by shooting from the firearm namely pistol

and other weapon, i.e., knife has been specifically

proved and corroborated by medical evidence.

Challenging the said findings as recorded by the High

Court, the appellants have preferred this appeal.

7. Mr. Jayesh Gaurav, learned counsel appearing on

behalf of appellants submits that the incident took

place on 8th July 1989, at around 4 p.m. in an open

place where the deceased accompanying his son,

maternal nephew and paternal nephew were going

towards village Pakur on bicycles. The other three

persons were following the deceased from behind. It

is surprising that at the first instance, when only

two persons came at the place of the incident who

dragged off the deceased, the alleged eyewitness who

were deceased’s own son and close relatives were not

in a position to stop two persons and save the

deceased. The other four accused persons later came

from another direction. Therefore, the testimonies of

those witnesses were not worthy to be relied upon for 8 CRIMINAL APPEAL NO. 102 OF 2013

conviction of accused persons, in particular when

there has been no recovery of the weapon from them.

It is also not on record that the weapon (pistol)

allegedly used by two accused persons, namely, Nimai

Ghosh and Sonachand Ghosh was the same and the third

accused Sambal Ghosh used knife. In absence of

recovery of those weapons, the incident itself is

doubtful, and the charges as alleged under Section 27

of the Arms Act cannot be proved. It is further

contended that in absence of recovery, no

scientific/ballistic investigation has been carried

out and trial Court in such absence has rightly

disbelieved the testimonies of those witnesses and

recorded the finding that in absence of recovery of

weapon and ballistic report, recovered empty bullet

cover cannot be connected with the incident and the

guilt of the appellants cannot be proved, in

particular, when there is a previous enmity and

litigation pending between them. It is said that the

High Court committed grave error in setting aside

those findings without any plausible reasons and

grounds, therefore, the judgment of conviction by the 9 CRIMINAL APPEAL NO. 102 OF 2013

High Court deserves to be set-aside.

8. Per contra, learned counsel Mr. Sujeet Kumar

Chaubey representing the State has strenuously argued

in support of the findings of the High Court, inter-

alia stating that the testimonies by the eyewitnesses

have been fully corroborated by chance witnesses and

the entire incident cannot be disbelieved on the

testimony of the defence witnesses who merely heard

the gun shot and arrived at the place of incident. It

was further urged that the High Court has rightly

set-aside the judgment of acquittal so far as the

appellants are concerned, therefore, the interference

in this appeal is not warranted.

9. After having considered the submissions made and

on perusal of the material placed on record, it

emerges that Janmejay Ghosh (PW–8) is the son of the

deceased, Shankar Ghosh (PW–2) is the paternal nephew

and Megh Nath Ghosh (PW–5) is the maternal nephew of

the deceased. All three along with the deceased were

going to Pakur on bicycles. On reaching the place of

occurrence, deceased was dragged off by accused Nimai

10 CRIMINAL APPEAL NO. 102 OF 2013

Ghosh and Sonachand Ghosh and was shot by firearm

from the back side by Nimai Ghosh. It is further

submitted that another shot thereafter was fired

Sonachand Ghosh. However, as per the testimony of

doctor S.K. Gupta (PW–1), out of the six injuries,

only one firearm injury was found with an entry and

exit wound. Therefore, the allegation in the

testimonies of eyewitnesses of having taken two shots

of firearm on the body of the deceased is suspicious.

The deceased was going along with his son and two

other relatives and these three persons, who were

eyewitnesses, were frightened because of the incident

and threatening by the accused person. The said

conduct of the witnesses has been questioned in the

facts of the case. In addition, the place of incident

is not a place where the deceased/accused were

residing, though 5-6 kms (as deposed by PW–11) far

from village Malaypur, i.e., from where they started.

The normal conduct of the son and other two nephews

should have been to immediately report the incident

to the nearest police station, however, in the

present case no information was furnished by them for 11 CRIMINAL APPEAL NO. 102 OF 2013

approximately 14 hours. All the eyewitnesses left the

place of the occurrence after some time and later

came back without intimating the other family members

and villagers.

10. Given the circumstances, before assessing the

witnesses’ testimony to determine the appellants’

guilt, it is imperative to consider as to how and in

what manner a witness’s testimony may be deemed

credible or otherwise in support of the prosecution’s

case. In this regard, reference is made judgment of

this Court in case of ‘Alil Mollah and Anr. Vs. State

of West Bengal’1, wherein this Court while allowing

the appeal against concurrent conviction for offence

under Section 302/24 of IPC based on testimony of

solitary eyewitness, observed in paragraph 7 as thus:

-

“7. On his own showing PW 3 was an employee of the deceased. He was present, according to his testimony, when the deceased was assaulted by the appellants. He admits that after committing the crime the appellants and their associates fled away. The witness, however, not only did not raise any alarm when his master was being assaulted, he did not go near his employer even after the assailants had

1 (1996) 5 SCC 369 12 CRIMINAL APPEAL NO. 102 OF 2013

fled away to see the condition in which the employer was after having suffered the assault. According to him he got frightened and fled away to his home. He also admitted in his cross-examination that neither at his home nor in the village did he disclose what he had seen in the evening of 4-2-1982 to anyone.

Though in the morning of the following day, the witness went to the brick-fields of the deceased-employer and many of his co-employees were also present there, he admitted that he did not disclose the occurrence to anyone of them and went on to concede that even to the Manager of the brick-fields he gave the information about the occurrence only 2-3 days after the occurrence. His statement was recorded by the police on the next day in the afternoon. This conduct of the witness that he did not tell anyone about the occurrence till the next day appears to be rather unnatural and creates an impression that he had not witnessed the occurrence. The witness however tried to take shelter on the plea that he was ‘frightened’ and therefore till he appeared before the police, he did not pick up courage to inform anyone either in the village or in the brick-fields regarding the occurrence. This plea does not impress us. ………”

As noted, this Court disbelieved the evidence of

this eyewitness due to his unnatural conduct who did

not tell about occurrence to anyone despite his

presence at the place of occurrence. His plea of fear

was also discarded.

11. In the case of ‘Gopal Singh Vs. State of Madhya

13 CRIMINAL APPEAL NO. 102 OF 2013

Pradesh’2, relating to double murder, this Court

allowed the appeal against conviction by High Court,

which had set-aside the judgment of acquittal by

trial Court for offences under Section 302/34 of IPC,

and disbelieved the testimony of eyewitness Feran

Singh (PW–5) noting as thus:-

“25. We also find that the High Court has accepted the statement of Feran Singh, PW 5 as the eyewitness of the incident ignoring the fact that his behaviour was unnatural as he claimed to have rushed to the village but had still not conveyed the information about the incident to his parents and others present there and had chosen to disappear for a couple of hours on the specious and unacceptable plea that he feared for his own safety.”

In the above case also, this Court observed that

behaviour of the eyewitness is unnatural since after

the incident, he rushed to the village, however, did

not convey any information either to the villagers or

his parents and other persons present. He disappeared

from the spot merely on the pretext of fear and to

save himself.

12. Similarly, in ‘Shivasharanappa and Others Vs.

2 (2010) 6 SCC 407 14 CRIMINAL APPEAL NO. 102 OF 2013

State of Karnataka3’, this Court in an appeal against

conviction by the High Court, which had set-aside the

judgment of acquittal by the trial Court primarily

for offences under Section 302/149 of IPC, while

allowing the appeal, disbelieved the testimony of the

daughter (PW–9) who is said to be eyewitness and

inter-alia observed as thus:-

“22. Thus, the behaviour of the witnesses or their reactions would differ from situation to situation and individual to individual. Expectation of uniformity in the reaction of witnesses would be unrealistic but the court cannot be oblivious of the fact that even taking into account the unpredictability of human conduct and lack of uniformity in human reaction, whether in the circumstances of the case, the behaviour is acceptably natural allowing the variations. If the behaviour is absolutely unnatural, the testimony of the witness may not deserve credence and acceptance.

23. In the case at hand, PW 9 was given a threat when her mother was forcibly taken away but she had the courage to walk in the night to her grandmother who was in her mid-fifties.

After coming to know about the incident, it defies commonsense that the mother would not tell her other daughter and the son-in-law about the kidnapping of the deceased by her mother-in-law. It is interesting to note that the High Court has ascribed the reason that PW 7 possibly wanted to save the reputation of the deceased daughter and that is why she did not inform the other daughter and son-in-law. That apart, the fear factor has also been 3 (2013) 5 SCC 705 – 07.05.2013 15 CRIMINAL APPEAL NO. 102 OF 2013

taken into consideration. Definitely, there would have been fear because, as alleged, the mother-in-law had forcibly taken away the deceased, but it is totally contrary to normal behaviour that she would have maintained a sphinx-like silence and not informed others. It is also worthy to note that she did not tell it to anyone for almost two days and it has not been explained why she had thought it apt to search for her daughter without even informing anyone else in the family or in the village or without going to the police station. In view of the obtaining fact situation, in our considered opinion, the learned trial Judge was absolutely justified in treating the conduct of the said witnesses unnatural and, therefore, felt that it was unsafe to convict the accused persons on the basis of their testimony. It was a plausible view and there were no compelling circumstances requiring a reversal of the judgment of acquittal. True it is, the powers of the appellate court in an appeal against acquittal are extensive and plenary in nature to review and reconsider the evidence and interfere with the acquittal, but then the court should find an absolute assurance of the guilt on the basis of the evidence on record and not that it can take one more possible or a different view.”

The Court as noted above, while taking into

consideration the fear factor, weighed in the conduct

of the daughter who is said to be the eyewitness of

the incident in remaining silent and not informing

others, and concluded that it is contrary to normal

human behaviour.

16 CRIMINAL APPEAL NO. 102 OF 2013

13. In yet another instance in the case of ‘Lahu

Kamlakar Patil and Another Vs. State of

Maharashtra’4, wherein this Court seized of an appeal

against concurrent conviction primarily for offences

under Section 302/149 of IPC, had the occasion to

deal with human conduct and reaction and observed as

under:-

“26. From the aforesaid pronouncements, it is vivid that witnesses to certain crimes may run away from the scene and may also leave the place due to fear and if there is any delay in their examination, the testimony should not be discarded. That apart, a court has to keep in mind that different witnesses react differently under different situations. Some witnesses get a shock, some become perplexed, some start wailing and some run away from the scene and yet some who have the courage and conviction come forward either to lodge an FIR or get themselves examined immediately. Thus, it differs from individuals to individuals. There cannot be uniformity in human reaction. While the said principle has to be kept in mind, it is also to be borne in mind that if the conduct of the witness is so unnatural and is not in accord with acceptable human behaviour allowing variations, then his testimony becomes questionable and is likely to be discarded.

27. Keeping in mind the aforesaid, we shall proceed to scrutinise the evidence of PW 2. As is evincible from his deposition, on seeing the assault he got scared, ran away from the hotel and hid himself behind the pipes till early morning. He went home, changed his 4 (2013) 6 SCC 417 – 14.12.2012 17 CRIMINAL APPEAL NO. 102 OF 2013

clothes and rushed to Pune [Ed.: Since the case has been tried by the Additional Sessions Judge, Raigad, Alibag, it would seem that the incident took place in Alibag, Raigad, which is about 300 km from Pune.]. He did not mention about the incident to his family members. He left for Pune and the reason for the same was also not stated to his family members. He did not try to contact the police from his residence which he could have. After his arrival at Pune, he did not mention about the incident in his sister-in-law's house.

After coming back from Pune, on the third day of the occurrence, his wife informed him that the police had come and that Bhau, who had accompanied him, was dead. It is interesting to note that in the statement under Section 161 of the Code, PW 2 had not stated that he was hiding himself out of fear or he was scared of the police. In the said statement, the fact that he was informed by his wife that Bhau was dead was also not mentioned. One thing is clear from his testimony that on seeing the incident, he was scared and frightened and ran away from the hotel. He was frightened and hid himself behind the pipes throughout the night and left for home the next morning. But his conduct not to inform his wife or any family member and leaving for Pune and not telling anyone there defies normal human behaviour. He has also not stated anywhere that he was so scared that even after he reached home, he did not go to the police station which was hardly at any distance from his house. There is nothing in his testimony that he was under any kind of fear or shock when he arrived at his house. It is also surprising that he had not told his family members and he went to Pune without disclosing the reason and after he arrived from Pune and on being informed by his wife that his companion Bhau had died, he went to the police station. We are not oblivious of the fact that certain witnesses in certain circumstances may 18 CRIMINAL APPEAL NO. 102 OF 2013

be frightened and behave in a different manner and due to that, they may make themselves available to the police belatedly and their examination gets delayed. But in the case at hand, regard being had to the evidence brought on record and, especially, non-mentioning of any kind of explanation for rushing away to Pune, the said factors make the veracity of his version doubtful. His evidence cannot be treated as so trustworthy and unimpeachable to record a conviction against the appellants. The learned trial court as well as the High Court has made an endeavour to connect the links and inject theories like fear, behavioural pattern, tallying of injuries inflicted on the deceased with the post-mortem report and convicted the appellants. In the absence of any kind of clinching evidence to connect the appellants with the crime, we are disposed to think that it would not be appropriate to sustain the conviction.”

In the facts as discussed, the conduct of the

eyewitness in the facts of the case was found highly

improbable vis-à-vis normal human conduct out of fear

who has witnessed an incident as after the incident,

this witness without reporting the same to anyone,

left the place to visit Pune making his testimony

doubtful.

14. Assistance may also be drawn from the judgment

of this Court in ‘Amar Singh Vs. State (NCT of

19 CRIMINAL APPEAL NO. 102 OF 2013

Delhi)’5, wherein this Court yet again while dealing

with an appeal against concurrent conviction for

offences under Section 302/34 of IPC based on

testimony of sole eyewitness PW–1, found his conduct

to be unnatural and inconsistent with the ordinary

course of human nature. The consideration as made by

the Court is reproduced for ready reference as under:

-

“20. The assailants were only armed with hockey sticks and a knife and not with any firearms. It seems very unnatural that two brothers present on the spot will not even make slightest attempt to intervene and try to save the other brother being assaulted, merely on the threat extended by the assailants armed with hockey sticks and a knife. This unnatural conduct totally against natural human behaviour casts a serious doubt of shadow on the presence of eyewitness on the spot at the time of occurrence. Moreover, the facts stated by PW 1 Parminder Singh in this regard, as already discussed above, have not been corroborated by the other brother Amar Singh PW 11.

21. The other unnatural conduct of two brothers PW 1 and PW 11 just after the incident again makes their presence on the spot extremely doubtful. There was a medical clinic of Doctor Bhardwaj just nearby the place of incident and the first endeavour of the two brothers would have been to take injured brother to the clinic for immediate medical aid or try and get some medical aid

5 (2020) 19 SCC 165 20 CRIMINAL APPEAL NO. 102 OF 2013

from the clinic of Doctor Bhardwaj.

Admittedly, according to the statement of Parminder Singh PW 1 PCR van arrived after about 15 minutes. During this period no effort was made to either take the injured brother to the clinic or to call Doctor Bhardwaj for some first aid. This is totally against normal human behaviour.

22. Further no effort is alleged to have been made to either shift the injured to any hospital or even inform the police. It is highly unnatural that two real brothers made no efforts to save the life of third brother who was severely injured if they were present at the place of the incident. The PCR van is stated to have arrived after 15 minutes on the basis of information given by some unknown person regarding a person lying injured in front of Qumayun Hotel. PW 20 lady constable Renu in her evidence stated that on the fateful night she was posted at PCR van when at about 10.27 p.m. an unknown person made a call to inform that one man was lying unconscious near Qumayun Hotel, Defence Colony which was registered as DD No. 493. It was on the information given by an unknown, the PCR van reached at the site of the incident and shifted the injured to Aiims where he was declared brought dead.

xx xx xx xx

24. This in itself casts serious doubts of shadow on the prosecution story that two brothers of the deceased, namely, Parminder Singh PW 1 and Amar Singh PW 11 were present on the spot and accompanied the injured in PCR van to Aiims. Had it been so, naturally, they would have given the name of the deceased and their own names which would have been recorded in the MLC Ext. PW 17/A at the first instance. Doctor Romesh Lal PW 17/A who prepared the MLC stated in his evidence that one dead body was brought in the casualty of Aiims by Head Constable Dharam Singh having multiple sharp 21 CRIMINAL APPEAL NO. 102 OF 2013

deep injuries all over the body and he prepared the MLC PW 17/A. xx xx xx xx

32. The conviction of the appellants rests on the oral testimony of PW 1 who was produced as eyewitness of the murder of the deceased. Both the learned Sessions Judge, as well as the High Court have placed reliance on the evidence of PW 1 and ordinarily this Court could be reluctant to disturb the concurrent view but since there are inherent improbabilities in the prosecution story and the conduct of eyewitness is inconsistent with ordinary course of human nature we do not think it would be safe to convict the appellants upon the uncorroborated testimony of the sole eyewitness. Similar view has been taken by a three-Judge Bench of this Court in Selvaraj v. State of T.N. [Selvaraj v. State of T.N., (1976) 4 SCC 343 : 1976 SCC (Cri) 620] wherein on an appreciation of evidence the prosecution story was found highly improbable and inconsistent of ordinary course of human nature, concurrent findings of guilt recorded by the two courts below was set aside.”

As discussed, the Court noted that brothers of

the deceased have not attempted to save him though

indicating their presence as eyewitness on the place

of occurrence. In addition, they did not bring the

deceased to the medical clinic which was situated

nearby and admittedly, the deceased was brought to

the doctor by a constable. This creates a doubt about

the presence of eyewitness on the spot and also the

22 CRIMINAL APPEAL NO. 102 OF 2013

natural conduct of any prudent person whose brother

has been killed.

15. Further, in the case of ‘Narendrasinh Keshubhai

Zala Vs. State of Gujarat6’, this Court addressing an

appeal arising out of concurrent conviction for

offence under Section 302/34 of IPC based on

testimony of sole eyewitness (PW–3), examined his

conduct and in paragraph 13 observed as under:-

“13. Further, PW 3's credit stands impeached in the cross-examination part of his testimony. The witness is an adult, mature and worldly wise. He is aged 24 years and runs a grocery shop. He is not illiterate, yet he chose to not take any action, even to save the life of his friend. His explanation that he went home and slept is uninspiring in confidence for the incident took place in his presence and in close proximity of habitation, more specifically at a short distance i.e. just 3-4 minutes of walking distance from the Police Headquarters where constables are posted round the clock. He left his friend profusely bleeding on the spot but did not seek any help and immediately did not report the incident to the family members of the deceased whose house he visited only the following day at around 8.00-9.00 a.m. His conduct of going off to sleep, having seen his friend being murdered right before his eyes and then not visiting the hospital forthwith is quite unnatural. Also he did not inform the incident to his parents. It was only when the police interrogated him that he named the

6 (2023) 18 SCC 783 23 CRIMINAL APPEAL NO. 102 OF 2013

accused. His testimony is not free from embellishments, nor is not corroborated by any other evidence. Also, he admits not to have any information of any monetary transactions between the accused and the deceased.”

16. In view of the foregoing, it can safely be

observed that, as a general rule, to prove the case

of the prosecution, the testimony of eyewitness

primarily ought to be considered and be relied upon

to prove the guilt of the accused. It is trite to say

that the testimony of the eyewitness must be

trustworthy, free from any kind of blemish and of

sterling character to prove the incident, whereby the

case of the prosecution may be proved beyond

reasonable doubt. It is also settled that the quality

of evidence brought to prove the guilt is a relevant

factor and not the quality of the witnesses. The

testimony of those witnesses either proves the case

as alleged by the prosecution or otherwise.

Sometimes, the testimony of the eyewitness is found

unbelievable and can be discarded. To adjudge the

credibility of the said testimony, relevant factor

would be the conduct of the witness indicating the

natural reaction comparable to a prudent man, making 24 CRIMINAL APPEAL NO. 102 OF 2013

the conduct of witness realistic. The said factors

shall be based upon parameters which have been

discussed in the judgment hereinabove.

17. At the cost of repetition and to prove those

parameters it can be observed that if a friend or

relative is accompanying the deceased at the time of

incident, action taken by the witness is a relevant

factor to save him. Moreover, in addition, at the

time of incident and immediately after commission of

the offence, what steps were taken by the eyewitness

to save the life of the deceased. Whether the

eyewitness left the place of occurrence and returned

the place of incident simpliciter without furnishing

information to the police or intimating the

relatives/friends/near dear ones becomes relevant. In

case, the eyewitness does not convey any information

about the incident to anyone which is not expected

from a prudent man, his conduct does not appear to be

natural of a human being. The time of furnishing

information to the police at the earliest by

eyewitness is one of the relevant factors to dislodge

the plea of belated FIR, therefore, the conduct of an 25 CRIMINAL APPEAL NO. 102 OF 2013

eyewitness should be reflected like a real image in a

mirror, thereby making his testimony reliable to

prove the guilt of the accused.

18. In the context of the above said principles,

reverting to the facts of the present case, the

allegation of commission of murder as alleged against

the appellants is required to be analyzed on the

anvil of testimonies of eyewitnesses and whether they

have proved the same to bring home the guilt of the

accused. In this regard, as per testimony of Janmejay

Ghosh – son of the deceased (PW–8), who at the time

of incident was behind deceased on a bicycle along

with two cousin brothers, in his examination in

chief, except to narrate the incident and the

allegation of exhortation by Gaya Nath Ghosh, has

merely said that when they tried to raise voice, the

accused persons threatened to kill them. This witness

has not reported the incident to the police. After

the incident and staying there for some time, he

visited his village Malaypur where except to

communicate the same to Bridaban Ghosh (PW–7,

Sarpanch), he has not informed about incident to 26 CRIMINAL APPEAL NO. 102 OF 2013

anyone. However, PW–7 in his testimony has not

deposed or accepted that any information was

furnished by PW–8. Furthermore, it is highly

improbable that deceased’s son on reaching home did

not inform his mother, sister and brothers about the

incident and returned to the place of occurrence

after some time without intimating the police.

19. Likewise, in the statement of other eyewitness

Shankar Ghosh (PW–2), paternal nephew of deceased,

similar allegations were made by prosecution against

the appellants, though he also did not make any

attempt to save the deceased uncle and returned to

his village without furnishing any information to the

police. Further, at one place, he states that on the

next day he had not reached the place of occurrence,

though in the latter part of the testimony it is said

that in the evening he has visited the place of

occurrence, and his statement was recorded in the

morning on the next day. Lastly, this witness does

not know about the chance witness and does not

mention them in his testimony.

27 CRIMINAL APPEAL NO. 102 OF 2013

20. The third eyewitness is Megh Nath Ghosh (PW–5),

cousin of two other witnesses and maternal nephew of

the deceased. He has also deposed alike two other

witnesses. He does not have any knowledge that anyone

had gone to the police station to report the

incident. The said witness did not convey the

incident to anyone on returning home. As such all the

three eyewitnesses are unable to say who were the

chance witnesses at the time of incident and saw the

commission of crime by the accused persons. In

absence thereof, the testimonies of the chance

witnesses, howsoever supporting the allegation,

cannot be relied upon. It is to be observed that once

the eyewitnesses do not recognize the presence of the

chance witnesses at the time of occurrence, then

their testimonies are unrealistic and concocted.

21. After perusal of the record, it is seen that in

support of the prosecution allegations and the

testimonies of the eyewitnesses or chance witnesses,

the allegations were of assault by means of firearm

and knife. Those allegations were corroborated by the

injuries received by deceased as per the statement of 28 CRIMINAL APPEAL NO. 102 OF 2013

doctor S.K. Gupta (PW–1). In this regard, if the

testimony of eyewitness is worthy to rely on, its

corroboration by medical evidence along with seizure

report reflecting the weapon used in the commission

of offence becomes highly relevant. It is pertinent

here to mention that in the present case, neither the

pistol nor the knife was recovered or seized. From

the spot of occurrence, merely one bullet cover along

with blood-stained soil was seized by PW–11. As per

the testimony of the doctor in his cross-examination,

it is specifically admitted by him that injury nos. 1

and 2 have been caused by single shot firearm,

meaning thereby, the firearm was used only once, not

twice. Injury no. 1 is of entry wound and injury no.

2 is of exit wound. Therefore, it appears that

prosecution has concocted the story of causing

firearm injury on the deceased by Sonachand Ghosh

using firearm by taking the second shot. In absence

of recovery of the weapon used in commission of the

offence either by pistol or knife and its ballistic

as well as scientific examination through FSL,

corroboration of the allegations as per the testimony 29 CRIMINAL APPEAL NO. 102 OF 2013

of eyewitness is not possible. Moreover, the bullet

cover which was recovered and seized by the police at

the place of incident cannot be tallied with the

weapon.

22. Further, if we examine the testimony of first

investigating officer Shyama Ram (PW–11), wherein he

has deposed that information was received through

telephonic message, however in the cross-examination

of second investigating officer Dina Nath Ram (PW–10)

to whom investigation was later carried forward to,

he has specifically mentioned that no telephone was

installed in the police station. As such, how and in

what manner PW-11 received the information of the

incident that occurred at 4 pm and reached the place

of incident is unexplained. Similarly, in the

testimony of PW–11, it is stated that he has deputed

two chowkidars namely, Kishori Ram and Badal

Rajbanshi at the place of occurrence, who stayed in

the night, but their statements have not been

recorded for reasons not explained.

23. Lastly, upon examining the records, it is

30 CRIMINAL APPEAL NO. 102 OF 2013

evident that following the entire incident, Janmejay

Ghosh (PW–8), along with his relatives and police

chowkidars, remained at the scene of the occurrence

with the deceased’s body throughout the night.

According to the cross-examination of PW–11, he

arrived at the scene on the night of the incident to

see the body and assigned two chowkidars to guard the

same. Despite his presence, neither PW–8 nor any

other relatives lodged FIR. Notably, PW–11 also

failed to record any fardbeyan from those present at

the site. At this point, it is pertinent to note

that no explanation has been brought either by this

witness, any family member, or other eyewitnesses for

the delay in lodging the FIR. Curiously, the

witnesses’ testimony remains completely silent on why

the deceased’s body was not taken to the nearest

hospital and why it was kept at the site overnight.

This conduct raises serious questions, especially

considering that PW–8, a key eyewitness, allegedly

witnessed the brutal murder of his own father. Given

these circumstances, it is perplexing and surprising

as to why he refrained from reporting the incident 31 CRIMINAL APPEAL NO. 102 OF 2013

immediately and bringing the deceased to the nearest

hospital. Such inaction undermines the credibility of

the prosecution’s narrative, as any reasonable person

faced with the murder of a close family member would

typically inform the police without delay. This kind

of passive conduct runs contrary with the natural

behavior expected of a prudent person in such grave

and distressing circumstances.

24. In view of the foregoing facts, in our

considered opinion prosecution has miserably failed

to prove the allegations of the commission of murder

of Manmohan Ghosh by the appellants Nimai Ghosh,

Sonachand Ghosh and Sambal Ghosh. Therefore, the

findings as recorded by the High Court are not based

on due appreciation of records but on misreading of

evidence which cannot be sustained and is hereby set-

aside. Accordingly, this appeal is allowed, and the

impugned judgment stands set aside. The order of the

Trial Court stands restored.

25. Since the accused persons have been exempted

from surrendering as per order dated 23.11.2012, as

32 CRIMINAL APPEAL NO. 102 OF 2013

such in view of their acquittal from the charges,

they are not required to surrender. Pending

application(s), if any, shall stand disposed of.

……………………………………………………….,J.

[J.K. MAHESHWARI]

……………………………………………………….,J.

[ARAVIND KUMAR]

New Delhi;

January 23, 2025.

33