Crl.A. 59/2004 BEFORE HON’BLE THE CHIEF JUSTICE MR A.K.GOEL HON’BLE MR JUSTICE C.R.SARMA JUDGMENT AND ORDER(CAV) C.R.Sarma, J : This appeal is directed against the judgment and order, dated 2.9.20 03, passed by the learned Sessions Judge, Barpeta, in Sessions Case No.54/2001, under Sections 302/201/120(B) of the Indian Penal Code ( for short, ’IPC’). 2. We have heard Mr Z. Kamar, learned Public Prosecutor, Assam, appeari ng for the State appellant and Ms N. Bharali, learned counsel, appearing for th e respondents. The respondents in this appeal were the accused persons in the s aid Sessions Case. 3. The prosecution case, in brief, is that, on 22.8.1991, at about 12 noon , Sri Nagen Deka (hereinafter referred to as ’deceased’) went to their paddy fi eld to provide tea and snacks etc. to the persons engaged in his paddy field. At that time, one person, namely, Sri Jatin Das(since deceased) called him, but on being refused to respond, accused Sri Kailash Talukdar, Sri Subash Baish ya, Sri Ranjit Baishya, Sri Nibaron Baishya, Sri Bhagaban Baishya and Sri Chanda n Baishya appeared there and forcibly took him to the nearby club(Sangha), and killed him by assaulting with iron rod etc. Thereafter, the dead body of the de ceased was thrown to Kaldia river, wherein the same was found floating on 24.8 .1991 at about 6 p.m. 4. Sri Haricharan Deka (PW 1), brother of the deceased, lodged an FIR, on 24.8.1991, with the police. On receipt of the said FIR, police registered a c ase and launched investigation into the matter. At the close of the investigatio n, police submitted the charge-sheet against accused persons under Sections 302/ 201/120B IPC and forwarded them to the Court to stand trial. Accused Jatin Das d ied before commitment of the case. Accused Ranjit Deka and Bhagaban Baishya wer e declared absconders, and as such, the case was filed against them. 5. The case was committed to the Court of Session and the learned Sessi ons Judge, Barpeta framed charges under Sections 302/201/120(B) IPC, against the respondents. The charges were read over and explained to them, to which, th ey pleaded not guilty and claimed to be tried. 6. The prosecution examined, as many as, fifteen witnesses. At the close of the evidence for the prosecution, the accused persons were examined, under Section 313 of the Code of Criminal Procedure, 1973, ( for short, as ’Cr.P.C.’). They denied the allegations, brought against them and declined to adduce the de fence evidence. 7. The learned Sessions Judge, considering the evidence on record, came to the findings that the prosecution failed to prove the charges, beyond all rea sonable doubt. Accordingly, the accused persons were acquitted and set at lib erty. 8. Dissatisfied with the said acquittal, the State, as appellant, has come up with this appeal under Section 378 Cr.P.C. 9. Mr Z Kamar, learned Public Prosecutor, taking us through the evidence o n record, has submitted that, though there were sufficient evidence in support of the prosecution version, the learned Trial Judge committed error in recordin g the acquittal by failing to correctly appreciate the evidence and as such, the impugned judgment and order is required to be reversed. 10. Supporting the impugned judgment and order of acquittal, the learned counsel, appearing for the respondents ( accused persons) has submitted that th e prosecution failed to establish the case, beyond all reasonable doubt, by ad ducing cogent and reliable evidence resulting acquittal of the accused perso ns. The learned counsel, appearing for the respondents, has also submitted th at as nothing improper or no miscarriage has been done by the impugned order of acquittal, the same does not require any interference at this stage. 11. Law is well settled that, in a criminal trial, the burden is on the prosecution to prove the charges brought against the accused person(s), beyon d all reasonable doubt. In the touchtone of the said principle of criminal juris prudence, we are required to examine if the prosecution could prove the case be yond all reasonable doubt, and if the learned Trial Judge committed any gross e rror by recording acquittal. 12. In order to appreciate the counter arguments, advanced by the learned counsel, appearing for both the parties and to examine the correctness of the impugned judgment and order, we briefly, make a scrutiny of the evidence on rec ord. 13. Sri Haricharan Deka (PW 1), the brother of the deceased, lodged the FI R. He stated that he came to know from three boys that the deceased was taken to the club, wherein he was assaulted and acid was poured on him. This witness failed to disclose the names of the said persons from whom, he received the in formation, aforesaid. He further stated that, going to the club, he could hea r the cry of his deceased brother. According to this witness, he met Sri Ranjit Deka in front of the club and that, Sri Kailash Talukdar, Sri Bhagaban Baishya, Sri Subhash Baishya, Sri Tankeswar Baishya, Sri Nibaron Baishya , Sri Chandan D as and Jatin Das (since dead) had assaulted him (PW1). He also stated that accus ed Ranjit had told him that the deceased committed some offence and as such, an amount of Rs.25,000/- would have to be paid towards his release. He further stat ed that, he had sent accused Sri Parikshit to know about the condition of his b rother and Sri Parikshit, in turn, had informed him that his deceased brother was moved from the club house to some other place. According to this witness, the dead body of the deceased was found in the Kaldia river, on 24.8.1991. Thi s witness denied the suggestion that he did not tell police, at the time of giv ing statement under section 161 Cr.P.C., that accused Kailash, Subhash , Bhagab an, Nibaron and Chandan had killed the deceased. The Investigating Officer, who has been examined as PW 15, has proved the said contradictions. He also denied the suggestion that he did not hear the cry of the deceased coming from the clu b as well as the house of Parikshit. This contractions, on the part of PW 1, also stood proved by the Investigating Officer. From the suggestion, put to P W 1 and the contradictions proved through the Investigating Officer, it is foun d that, PW 1 did not state the facts regarding the hearing of cry of his bro ther and the assault caused to him by the accused persons. He also did not make same disclosure before the Investigating Officer, at the initial stage of reco rding his statement under section 161 Cr.P.C. Therefore, his statements that he had heard the cry of his deceased brother and that the accused persons had a ssaulted him in front of the club and that accused Ranjit Deka and Parikshit had threatened him not to launch any police case, are found to be the statements, made for the first time, before the Court. It is not safe to rely on such di sclosures, which were withheld at the initial stage of the investigation. Theref ore, in our considered opinion, the learned Sessions Judge has rightly refused to accept the evidence of PW 1 without corroboration. 14. Sri Fatik Deka (PW 2), saw about 7-8 persons on the bank of the river and he could notice that, out of the said persons, the deceased was screaming t hat he was dying. He also stated that the deceased was assaulted in front of th e club. According to his witness, when the deceased tried to flee that place, three persons had caught and brought him back to the club. According to this wi tness, Ranjit, Bhagaban, Parikshit were peeping through the gap of the fencing. He further stated that he could know that the accused was taken by ULFA. In his cross- examination, he stated that he did not see as to who had assaulted whom. This witness further stated that he had almost lost his memory. Carefully perusing the evidence of PW 2, nothing substantive, for holding that the accused persons were responsible for the death of the deceas ed, could be elicited. 15. Sri Kamaleswar Deka, who was one of the brothers of the deceased, depos ed as PW 3. He was not present at the time of taking his brother from the fiel d. He stated that, at about 3-30 p.m. when he was returning from school, he c ould hear the voice of his brother in the club house. He further stated that he, along with his nephew Arup ,went to the club and at that time, the deceased had come out from the club, but he was taken back and assaulted. This witness di d not state as to who had assaulted and who had detained his deceased brother. A ccording to this witness, he on being assured, in front of the club house, went to the house of accused Parikshit Deka and that Parikshit also had assured him that he should not be worried about his brother. This witness further stated tha t the dead body of his deceased brother was found on the next day in the Kaldia river. From the evidence of PW 3, nothing substantive could be found against ac cused persons. The evidence of PW 3 does not inspire confidence to believe that the accused persons had killed the deceased after taking him to the club house. In fact, this witness had no personal knowledge as to who had taken and assaulte d his deceased brother. 16. PW 3, denied the suggestion that he did not tell the Investigating Offi cer that he had heard the cry of his brother. He also denied the suggestion that he did not tell the I.O. that Parikshit told him that his deceased brother wo uld be released . The said contradictions of PW 3, stood proved by the Invest igating Officer, who stated that, PW 3 did not tell him that he could hear the c ry of his brother and that the said witness did not tell him that Patikshit told him that the deceased would be released. In view of the above, it appears that the statement, given by PW 3, regarding hearing of cry of his brother and t he assurance given by accused Parikshit were the statements made for the firs t time in court. Therefore, as indicated by the learned trial Judge, the possib ility of development of the evidence of the said witness cannot be ruled out. Therefore, it is not safe to believe that PW 3 could hear the cry of his broth er and that Parikshit had assured him that the deceased would be released . 17. Sri Anup Deka, the nephew of PW 3, deposed as PW 4. He stated that he c ould come to know from his grandmother that the deceased was taken from the padd y field by Kailash Talukdar, Ranjit Deka, Jatin Das, Bhagaban Baishya. He furthe r stated that he, along with PW 3 went to the club in search of the deceased, bu t they were assaulted and chased away by Kailash, Ranjit and Bhagaban. He furth er stated that the deceased was kept in the club by tying his legs and hands an d that he too was assaulted therein. He further stated that he saw accused B hagaban Baishya, Ranjit Deka, Kailash Talukdar, Nibaron Baishya and Chandan Deka . A careful perusal of the evidence of PW 4 and PW 3 reveals major contradiction s. Both of them went to the club together, but according to PW 3, he could hear the voice of the deceased, which was coming from the club house and that, thou gh the deceased had come out from the club house, the accused persons assaulted and took him back after pouring acid on his person. But according to PW 4, the deceased was found, being tied inside the club house. If the deceased was tied up there was no scope for him to come out. Hence, the PW 4 belies the PW 4 ’s evidence. Therefore, according to PW 4, Nagen did not come out from the club house and no acid was poured on him. The said contradictory statements given by PW 3 and PW 4, on material point, raise serious doubt about the veracity of the ir evidence. Therefore, in our considered opinion, the learned Sessions Judge committed no error by refusing to accept the evidence, given by the said two witnesses. 18. Sri Rajen Deka, who deposed as PW 3 did not know as to who had taken t he deceased from the paddy field. According to this witness, he came to know f rom one Prahlad Deka that the voice of Nagen, coming from the club house, was h eard. He also stated that he came to know from Sri Haricharan Deka(PW 1) that a n amount of Rs.25,000/- was demanded towards the release of the deceased. 19. Sri Haladhar Deka, PW 6, gave different version. He stated that one da y, in the month of May, 1991, while he was returning home from the bus station , he saw the deceased in the accompany of Kailash Talukdar, Bhagaban Baishya, R anjit Deka, Subash Baishya, Tankeswar Baishya, who were going in a bus. He stat ed that the said persons were going towards Uttar Subraje and that, though the deceased had asked him to accompany them, he refused to respond. According to this witness, on the same day, at about 4-30 p.m., he came to know that the de ceased was killed. He stated that he found the deceased in the accompany of sa id accused persons at about 1-30 p.m. In his cross examination, he stated that though the brothers of the de ceased were searching for the deceased , he did not tell them that he had seen the deceased, in the company of the accused persons. If PW 6 had seen the dec eased, in the company of the accused persons about three hours prior to the dea th of the deceased, in normal course, he should have disclosed the same to the brothers of the deceased, who were searching for the deceased. But, the fail ure of PW 6, to disclose the said vital information to the brothers of the deceased, raises serious doubt about the veracity of his evidence. Hence, it i s doubtful if he had seen the deceased in the company of the accused persons. 20. Sri Chadi Charan Deka, who deposed as PW 7, stated that he came to know that the deceased was killed by ULFA. He had no personal knowledge as to who had committed the crime. 21. Sri Suruchi Roy (PW 8) also stated that she came to know that some one had killed the deceased. She clearly stated that she did not know who had take n the deceased. 22. PW 9, Sri K Roy, also did not state anything incriminating against t he accused persons. 23. PW 10, is the Medical Officer, who performed the autopsy of the deceas ed. He detected the multiple injuries on the person of the deceased. In his opinion, the death was caused due to shock and hemorrhage caused by assault. 24. PW 11, PW 12 and PW 14, stated about the recovery of the dead body of the deceased. They did not state anything about the involvement of the accused persons. 25. PW 13 stated that sister-in-law of the deceased had told him that the deceased was taken by some persons from the paddy field. She also stated that , on being asked by him, Ranjit Deka had told him that the deceased had committ ed some crime and that Rs.25,000/- would be required for his release. According to this witness, Rajen Deka had told him that the deceased was kept in the ne arby the club house and that two days thereafter, the dead body of the deceased was found in Kaldia river. Though this witness stated that Rajit Deka ( not resp ondent in this appeal) had demanded Rs.25,000/- towards release of the deceased , there is nothing to find , from the evidence, that the accused persons i.e. present respondents were involved with the killing of the deceased. 26. PW 15 is the Investigating Officer. As indicated above, he has prov ed the contradictions, appearing in the evidence of PW 1 and PW 2. 27. Considering entire evidence on record, we find that there is noting substantive to believe that the accused persons had committed the alleged crime. In our considered opinion, the learned Trial Judge has properly appreciated th e evidence on records and arrived at the findings that the prosecution failed to prove the case beyond all reasonable doubt. In our considered opinion, the vi ew taken by the learned Trial Judge, in the facts and circumstances of the case is a plausible one and the same does not suffer from perversity. 28. As observed by the Supreme Court in the case of State of U.P. vs. Sat ish, reported in AIR 2005 SC 1000, the golden thread which runs through the w eb of administration of justice in criminal cases is that, if two view are possible, on the evidence adduced in the case, one pointing to the guilt of th e accused and the other to his innocence, the view which is favourble to the acc used should be adopted. The paramount consideration of the court is to ensure that the miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon t he appellate Court to re-appreciate the evidence, where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused rea lly committed any offence or not.. It has also been observed that the Court i s required to interfere only when there is compelling and substantive reasons f or doing so. In the above referred case, the Supreme Court further observed tha t, there is no embargo on the appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further s trengthened by acquittal. 29. As discussed above, the evidence adduced by the prosecution, does no t convincingly substantiate the allegations, brought against the respondents. There is no cogent, reliable and substantive evidence to hold them guilty, bey ond all reasonable doubt. 30. In the teeth of the above referred principles to be adopted, in an appeal against acquittal and considering the entire evidence on record, we find nothing substantive to hold that the impugned judgment is clearly unreasonable, or that reliable and convincing materials have been unjustifiably alienated. T herefore, we find no substantive reason for interfering with the impugned judg ment and order of acquittal. Therefore, we find no merit in this appeal requi ring interference. Accordingly, the appeal fails. 31. Before we part with the record, we express our concern that due to defec tive and improper investigation and lapse on the part of the prosecution, in m ost of the cases, the criminal proceedings end in acquittal. As observed by the Supreme Court in the case of State of U.P. vs. Satish (Surpa), a miscarriage of justice, which may arise from acquittal of the guilty, is no less than fro m the conviction of an innocent. It is the duty of the investigating agency to collect convincing, reasonable and substantive evidence and establish the alleg ations, brought against the accused person(s). 32. The cardinal principle of criminal jurisprudence is that the allegation , brought against the accused person(s) is required to be proved, beyond all reasonable doubt, and the benefit of doubt should always go in favour of the a ccused persons. 33. In the present case, as revealed from the prosecution version, the v ictim was taken away by the miscreants in broad day light, that too, in presenc e of some persons, who were working in the paddy field. Thereafter, he was take n to the nearby club, wherein he was tortured. Subsequently, his dead body was found in a river. None of the persons, in whose presence the victim was taken a way, were examined by the prosecution. No cogent and substantive evidence coul d be adduced by the prosecution to establish that the deceased was taken by th e accused persons from his paddy field and thereafter kept confined in their cus tody till his death. Acquittal of accused person(s), involved in criminal cases , seriously and adversely affects the pubic confidence in the system of admini stration of justice and creates a feeling of insecurity in the minds of the peo ple, in the society. Therefore, it is the duty of the State to bring the real culprit(s ) to book and adduce reliable and cogent evidence to substantiate th e allegations. Failure to do so indicates failure to do justice to the victim as well as his/her relatives and dependants. Therefore, we would like to observ e that, there is a dire need to take follow up action on the part of the prose cution as well as the investigating agency, in the case where a case fails on account of lapses, discrepancies and defects, on the part of the investigati ng agency, resulting acquittal of the guilty, more so, when question is raise d about the fairness of investigation. The present case is not an exceptional . Therefore, we recommend that all the State Governments, within the jurisd iction of this Court , will look into this aspect of the matter and examine the possibility of creating a cell or such other suitable mechanism, as may be d eemed fit and proper to examine/assess the cases, where the prosecution fails, with a view to explore as to whether further follow up action should be taken b y way of further investigation or by way of any action for misconduct or lapses, on the part of the persons involved with the prosecution/ investigation, in a ppropriate cases. A copy of this order be sent to all the Chief Secretaries of the State G overnments, within the jurisdiction of this Court, for doing the needful. 34. With the above directions and observations, this appeal is disposed of.