CENTRAL BUREAU OF INVESTIGATION versus SHYAM BIHARI & OTHERS
[2023] 10 S.C.R. 464, Supreme Court of India, 2023
Outcome: Dismissed (Dismissed)
Segment: Ratio
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CENTRAL BUREAU OF INVESTIGATION
v.
SHYAM BIHARI & OTHERS
(Criminal Appeal No. 413 of 2013)
JULY 17, 2023
[B. V. NAGARATHNA AND MANOJ MISRA, JJ. ]
Penal Code,1860 – ss. 302 and 34 – Murder case – Acquittal
of three policeman – Correctness of – Prosecution case that
prosecution witnesses traveling with the victim, though on a separate
scooter, at night in the light of the scooter saw three policemen on
the road armed with weapons – Policemen fired at them, hitting the
victim who succumbed to the injuries and the prosecution witnesses
managed to escape – Policemen charged of murder while patrolling
u/s. 302/34 – However, acquittal by the trial court – Appeal
thereagainst, u/s. 378(3) – Dismissed by the High Court – On appeal,
held: Though judgment of the High Court is a cryptic one but that
by itself need not be a ground to set aside the order – There are
relevant record to assess the merit of the prosecution case – Incident
arose in the year 1987 and the appeal remained pending – Neither
of the prosecution witness could identify any of the three accused –
They did not depose that the three policemen involved in the crime
were those who were facing trial – Trial court justified in discarding
the testimony of the eye-witness – Also no reliable evidence that the
exchange of fire was with a view to kill – Moreover, the victim died
from a .12 bore gunshot which could not be ascribed to rifles issued
to the policemen –
Circumstances ought to have formed a chain so
far complete as to indicate that in all human probability it were the
persons facing trial and none else who committed the crime –
However, the circumstances found proved do not constitute a
complete chain – Thus, not a fit case to interfere with the order
passed by the High Court – Code of Criminal Procedure, 1973 – s.
378(3).
Code of Criminal Procedure, 1973: s. 378(3) – Appeal against
acquittal – Power of the appellate court – Explained.
Dismissing the appeal, the Court
HELD: 1.1 No doubt the judgment and order of the High
Court appears a bit cryptic but that by itself need not be a ground
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to set aside the order and remit the matter to the High Court,
particularly, when there are relevant record to assess the merit
of the prosecution case. More so, because the incident is of the
year 1987 and the appeal has remained pending since more than
a decade. In such circumstances, if the matter is remitted to the
High Court only to rewrite the judgment, it would be travesty of
justice. Consequently, as the trial court has dealt with the matter
at great length and has discussed each and every piece of evidence
on which the prosecution seeks to rely, it would be apposite to
assess whether, by not granting leave to appeal against the
judgment of the trial court, there has been a miscarriage of justice.
[Para 26][474-H; 475-A-C]
1.2 In an appeal against acquittal, the power of the appellate
court to re-appreciate evidence and come to its own conclusion
is not circumscribed by any limitation. But it is equally settled
that the appellate court must not interfere with an order of acquittal
merely because a contrary view is permissible, particularly, where
the view taken by the trial court is a plausible view based on
proper appreciation of evidence and is not vitiated by ignorance/
misreading of relevant evidence on record. [Para 27][475-C-D]
1.3 In the instant case, the prosecution case rested on ocular
account as well as on certain circumstances. The ocular account
is provided by PW-3, PW-6 and PW-15. PW-3 and PW-6 were
traveling with the deceased,
though on a separate scooter. They,
therefore, had the opportunity to witness the incident. According
to them, while they were traveling on their respective scooters,
torch light was flashed at them by men in police uniform. As a
result, deceased’s scooter skidded. Thereafter, when gun shots
were fired they escaped and came to the village. On information,
a large number of persons from the village arrived at the spot.
Neither PW3 nor PW6 could identify any of the three accused.
They did not depose that the three policemen involved in the
crime were those who were facing trial. Thus, there is no infirmity,
much less perversity, in the view taken by the trial court that the
testimony of PW-3 and PW-6 is not of much help to the prosecution
qua the three accused facing trial. [Para 28][475-E-G]
1.4 With regard to the testimony of PW-15, detailed reasons
have been recorded by the trial court to hold him unreliable and
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unworthy of credit. Moreover, PW15’s presence is not confirmed
by PW3 and PW6. Otherwise also, PW15’s conduct of remaining
silent for over a week creates a lingering doubt in the mind as to
whether he is a witness set up on advise, particularly, when it is
noticed that his first statement was not to the investigating agency
but made on an affidavit prepared by a lawyer, who simultaneously
prepared three affidavits identically worded. The trial court
noticed all these facts as also that PW-15 was lying when he stated
that he went alone to get the affidavit prepared. The trial court
also noticed that all the three affidavits were prepared on stamp
papers, consecutively numbered, bought from the same vendor
and the affidavits were sworn in quick succession giving rise to a
definite conclusion that they were prepared by an advocate. The
trial court also noticed that the conduct of PW15 was a bit unusual
in the sense that he made no disclosure to anyone including the
father of the deceased yet, he straightaway went to swear and
dispatch an affidavit by post to a higher officer of the police even
though, by that time, the investigation had been transferred to
the CB-CID from the local police and, therefore, there was no
threat from the local police. In these circumstances, if the trial
court discarded the testimony of PW-15, the same was justified.
[Para 29][475-H; 476-A-D]
1.5 Adverting to the proven circumstances, what
transpires
is that the witnesses are consistent that there was a police action
on that fateful night. Assuming that it is true that in the night
there was an exchange of fire between men in uniform and
members of the public, but there is no reliable evidence that the
exchange of fire was with a view to kill. Moreover, the deceased
did not die of a rifle bullet injury. Rather, he died from a .12 bore
gunshot which could not be ascribed to rifles issued to the accused
persons. Therefore, even if empties of rifle cartridges relatable
to service rifles issued to the accused were found at the spot,
culpability of the accused persons in causing death of the deceased
is not inferable. Further, there is no recovery of a .12 bore gun
from any of the accused persons facing trial. Notably, after the
incident, villagers congregated at the scene of crime. The police
arrived at the spot and took the injured to the hospital. According
to the prosecution evidence, the accused persons were present
at the spot during this period. Therefore, if they were really
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involved they could have been identified by either PW3 or PW6,
but there was no such event. Further, the continued presence of
the accused at the spot is a circumstance which goes in favour of
the accused, being a conduct that belies a guilty mind. Another
circumstance which goes in favour of the accused is that, according
to the prosecution’s own case, the accused persons, three in
number, had a rifle each with 50 rounds. Admittedly, some of the
empty cartridges found at the spot, as per the ballistic expert
report, were not fired from the rifle issued to the accused. This
is indicative of presence of some other rifle also. Whose rifle it
was, the prosecution evidence is silent. Moreover, if the accused
were to use their rifle to fire shots why would they use a country
made pistol to inflict injury to the deceased. [Para 30 & 31][476-
E-H; 477-A-B]
1.6 The circumstance that the accused persons were
required to patrol that area and had left the police station for that
end on that fateful night is a circumstance which is not conclusive
as to turn the tables on the accused, inasmuch as the patrolling
area covered two villages. It may be possible that the accused
arrived at the spot late, when the incident had already taken place,
and to chase away the miscreants, fired shots from their service
rifles. Be that as it may, once the ocular account of PW-15 stood
discarded, to clinch a conviction on the basis of circumstances,
the circumstances ought to have
formed a chain so far complete
as to indicate that in all human probability it were the persons
facing trial and none else who committed the crime. Here the
circumstances found proved do not constitute a chain so far
complete as to indicate that in all human probability it were the
accused persons and no one else who committed the crime. In
such a situation, there was no option for the trial court but to
extend the benefit of doubt to the accused. It has not been pointed
out that the trial court ignored or misread any relevant evidence.
[Para 32, 33][477-C-E]
1.7 It is not a fit case to interfere with the order passed by
the High Court and remit the matter only for the High Court to
rewrite the judgment as the same, would be an exercise in futility.
[Para 34][477-F]
CENTRAL BUREAU OF INVESTIGATION v. SHYAM BIHARI
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CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No.413 of 2013.
From the Judgment and Order dated 26.07.2012 of the High Court
of Uttarakhand at Nainital in GA No.4 of 2012.
Vikramjit Banerjee, ASG, Sanjay Kumar Tyagi, Rajan Kumar
Chourasia, Shubhendu Anand, Tathagat Sharma, Nring Chamwibo
Zeliang, Arvind Kumar Sharma, Advs. for the Appellant.
Anil K. Sharma, Sanjeev Kumar, Praveen Chaturvedi, Advs. for
the Respondents.
The Judgment of the Court was delivered by
MANOJ MISRA, J.
1. This appeal assails the judgment and order of the High Court of
Uttarakhand at Nainital (in short, “the High Court”), dated 26.07.2012,
in Government Appeal No.4 of 2022. By the said order, though the delay
in preferring the appeal against the judgment and order of acquittal dated
13.12.2011 passed by the third Additional District & Sessions Judge/
Special Judge (Prevention of Corruption Act), C.B.I., Dehradun (for
short “the trial court”) in C. No. RC-5/87-SIU.II was condoned, the
application seeking leave to appeal under section 378 (3) of the Code of
Criminal Procedure, 1973 (in short, “the Code”) was rejected and in
consequence the Government Appeal was dismissed.
Introductory Facts
2.  In the night/late evening of 24.06.1987, one Raj Kumar Baliyan
(in short, “the deceased”) was killed. A first information report (FIR)
was lodged by Pramod Kumar Tyagi (PW-6) alleging, inter-alia, that
while he and Sudeep (PW-3), on one Scooter, and
Raj Kumar Balyan
(the deceased) on another Scooter, were travelling from Muzaffarnagar
to Meerapur to attend a marriage, near Bhatoda turn, at about 9.30 pm,
in the light of the Scooter, they saw three policemen standing on the
road. One of them had a Danda (stick) whereas the other two were
carrying rifles. The person who had the Danda flashed a torch light on
them.  As a result, they lost control of their respective scooters, which
skidded and fell. One of the policemen exhorted to shoot to kill. In
consequence, shots were fired hitting the deceased, who collapsed at
the spot.  PW-3 and PW-6, however, managed to escape to the village.
On information, villagers arrived at the scene of crime and so did the
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police.  In the presence of police the deceased was rushed to the hospital
but he succumbed to his injuries on the way. Thereafter, the dead body
was taken to the hospital and after leaving the body there, PW-6 lodged
the FIR, which was registered as Case Crime No.48/87 at P.S. Sikhera.
3. Another version of the incident was lodged at the instance of
one Mahindra Singh on 25.06.1987, which gave rise to Case Crime
No.48A/87. There it was alleged, inter-alia, that on 26.05.1987 a robbery
took place in the village wherein one person died. As criminals were
regularly visiting the village since then, a constant vigil was maintained
by the villagers as well as the police which had been patrolling the area.
It was alleged therein that while three police constables were patrolling
the village and people of the village were keeping a watch in the night of
24.06.1987, at about 9.00 pm, a man came and raised an alarm that 5-6
criminals were about to come to the village on motorcycles and scooters.
On receiving this information, the villagers and the policemen became
alert.  At about 9.30 pm, a motorcycle came and stopped a little ahead of
Bhatoda turn. Thereafter, two scooters came at a fast speed. When
torch lights were flashed and the scooters were signalled to stop, the
rider fired a shot with a view to kill the villagers and the policemen.
However, one of the scooters skidded and the other stopped. The criminals
however started running away while firing shots.
As a result, there was
retaliatory fire by the police and the villagers. One of the criminals was
chased and nabbed by the villagers. He was also beaten by them.  At
that time, from P.S. Sikhera, an Inspector arrived in an Ambassador
Car.  He interrogated the criminal.  Later, several villagers arrived and
informed that the person caught is Raj Kumar, Advocate. Thereafter,
Raj Kumar was taken to the hospital.  At the same time, the spot was
searched and two empty shells of cartridges were recovered from the
spot.
4.  The investigation of the aforesaid two cases was assigned to
CB-CID and later, for further investigation, to Central Bureau of
Investigation (CBI) upon which, CBI registered a case No.RC-5/87-
SIU.II. After investigation, CBI submitted a charge-sheet against the
accused persons (the respondents herein) under Section 302 read with
Section 34 of the Indian Penal Code, 1860 (in short, “I.P.C.”)  After
taking cognizance on the police report, the Court of First Additional
Sessions Judge, Dehradun charged Anil Kumar, Shyam Bihari and Arshad
Ali (the respondents herein) for committing offence punishable under
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Section 302 read with Section 32 I.P.C. The accused pleaded not guilty
and claimed trial.
5. During the trial, the prosecution examined 33 witnesses and
produced various documentary evidences with regard to GD entries,
seizure memos, site plan, forensic reports, autopsy report, etc. Various
material exhibits such as articles seized during investigation were
produced and exhibited during trial.
6. After closure of prosecution evidence, the incriminating
circumstances appearing in the prosecution evidence were put to the
accused for recording their statement under section 313 of the Code. In
their statement, under section 313 of the Code, the accused denied the
incriminating circumstances appearing against them and claimed that
they have been falsely implicated and made scapegoat.
Nature of the Prosecution Evidence
7. The prosecution sought to bring home the charge against the
aforesaid three accused by leading evidence to the following effect: -
(i)
On the date, time and place of the incident, the three
accused were on a picket duty as reflected by the GD
Entries made at the police station concerned;
(ii)
The GD Entries reflected that they had departed from the
police station with a rifle and 50 cartridges each;
(iii)
The ballistic expert report confirmed that some of the empty
rifle cartridges recovered from the spot were fired from
the service rifles of the accused thereby confirming their
presence at the spot;
(iv)
PW-3 and PW-6 narrated that the shots were fired by
policemen who flashed torch light at the scooter riders;
(v)
PW-15 (Shyam Singh) confirmed participation of the three
accused in the crime and proved that on exhortation by the
other two accused, Anil Kumar took out a country made
pistol and had fired a shot at the deceased;
(vi)
The villagers who had arrived at the spot after the incident
had noticed that the three accused along with others were
present at the spot;
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(vii)
Police set up a false cross version of the incident, namely,
Case Crime No. 48A/87, which indicated that there was a
deliberate attempt on the part of the police to save
themselves from the clutches of law.
Trial Court Findings
8. The trial court found the testimony of PW-3 and PW-6
inconsequential because the two witnesses did not state that the policemen
involved in the crime were the ones facing trial.  Rather, they admitted
that they had not seen the accused before and that the accused were
not put for identification.
9.  As regards eye-witness Shyam Singh (PW15), the trial court
found him unreliable for the following reasons: (a) PW15 made no prompt
disclosure of his knowledge about the incident and the culprits either to
the police or to the villagers, rather, after a lapse of several days, chose
to swear an affidavit and dispatch it by post to a higher official of the
police; (b) three affidavits, including that of PW15, making the same
disclosure in identical language, sworn on the same day, at more or less
the same time, and prepared by the same lawyer, were received by the
police after a few days; and (c) PW15 lied that he was alone when he
went to swear the affidavit.
10.  Having discarded the eye witness account of PW-15 and
finding the eye witness accounts of PW-3 and PW-6 inconsequential to
inculpate the accused, the trial court proceeded to address other
circumstances on which the prosecution relied. These were: (a) few
empty
cartridge shells lifted from the spot were found to have been fired
from the rifles issued to the accused; and (b) there was an attempt to set
up a false narration of the incident vide Case Crime No.48A of 1987.
11. In respect of some of the empty cartridges matching with
service rifles of the accused, the trial court noticed that out of four .303
cartridges recovered from the scene of crime, one was fired from the
rifle of accused Anil, one from the rifle of accused Shyam Bihari whereas
the remaining two cartridges were not fired from service rifles of any of
the three accused persons. Thus, it was not clear from the prosecution
evidence as to from whose rifle the remaining two bullets were fired.
This discrepancy, according to the trial court, rendered the prosecution
version against the accused doubtful because there could be the hand of
some other person also.
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12. In addition to the above, the trial court noticed from the autopsy
report that the gun shot injury sustained by the deceased was not from a
rifle bullet but from a .12 bore weapon which was not recovered from
any of the accused persons. Hence, even if rifle bullets were found at
the spot, they were not the ones from which injuries were caused to the
deceased.  As regards the cross version of the incident (i.e. Case Crime
No.48A/87), no adverse inference was drawn against the accused as it
was not at their behest.
13. Apart from above, the trial court noticed that, according to the
prosecution version, several persons (i.e. villagers including PW-3 and
PW-6 and police personnel) had arrived at the spot and the three accused
were also present there, yet they were not identified.  In these
circumstances, it was concluded that if PW-3 and PW-6, who were
travelling on another scooter in close proximity to the deceased, had
recognized the accused persons, they would have identified them at the
scene of crime as those who killed the deceased, and country made
pistols might have also been recovered.
14.  After analysing the entire prosecution evidence in detail, the
trial court concluded that the prosecution had failed to prove that those
three policemen in uniform, who attacked Raj Kumar Baliyan (the
deceased), were the persons facing trial.
High Court’s observations
15.  Having failed to succeed in the trial, the State
filed a time-
barred appeal along with a delay condonation application and an
application seeking leave to appeal. The High Court by the impugned
order allowed the delay condonation application but rejected the
application seeking leave to appeal and dismissed the appeal accordingly.
16.  While rejecting the application seeking leave to appeal, the
High Court noticed that the prosecution case rested on three eye-
witnesses’ accounts. Eye-witnesses PW-3 and PW-6 could not identify
the policemen and in so far as PW-15 was concerned, he was found not
reliable. Moreover, the medical evidence indicated that the deceased
died due to gun-shot injuries fired from a .12 bore weapon and not a
rifle, which was with the accused, hence, granting leave to appeal to
formally hear the appeal would be an exercise in futility.
17. We have heard Shri Vikramjit Banerjee, learned Additional
Solicitor General, assisted by Shri Rajan Kumar Chaurasia, learned
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Advocate for the appellant; Shri Anil K. Sharma, learned Advocate for
the respondents; and have perused the record.
Submissions
18.  The learned counsel for the appellants submitted that this is a
case where it was proved beyond doubt that the deceased was shot by
persons who were wearing police uniform. On the night of the incident,
the three accused, namely, Shyam Bihari, Anil Kumar Sharma and Arshad
Ali, all armed constables, were patrolling the area, as per evidence brought
on record.  Soon after the incident these constables were found present
at the spot. Hence, their presence at the scene of crime was confirmed
not only by eye witnesses but also by circumstances including the fact
that certain empty cartridges recovered from the spot were fired from
their service rifles. Thus, not only their presence was proved but another
version of the incident i.e. Case Crime No.48A of 1987, depicting police
action, confirmed that death was a consequence of police action.
Therefore, the burden was heavy on the accused to explain these
incriminating circumstances and in absence whereof, an adverse
inference ought to have been drawn against the accused persons.
19. It was also argued that even if PW-3 and PW-6 could not
identify the accused persons, they corroborated the prosecution story
with regard to the manner in which the incident occurred and, therefore,
their testimony could be used to corroborate the testimony of PW-15,
who not only narrated the incident
but could recognize and identify the
accused persons.
20. Thus, according to the learned counsel for the appellant, the
trial court’s verdict was perverse and rejection of the application seeking
leave to appeal has resulted in grave miscarriage of justice. It has therefore
been prayed that the appeal be allowed and the matter be remitted to the
High Court to accord fresh consideration on merits.
21. Per contra, the learned counsel for the respondents submitted
that, firstly, PW-3 and PW-5, who were travelling with the deceased,
have not been able to identify the accused as those who were involved
in the killing of the deceased; and, secondly, the deceased died of a gun-
shot wound which could be ascribed to a .12 bore weapon, not a rifle
which was with the accused.  Moreover, some of the empty cartridges
lifted from the spot did not match with the rifles of the three accused
thereby giving rise to a possibility that someone else was also present
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with a rifle and had used it.  In these circumstances, if the trial court
gave the benefit of doubt to the accused, the judgment and order of the
trial court cannot be held perverse as to warrant reversal in an appeal.
22. With regard to the testimony of PW-15, the learned counsel
for the respondent submitted that PW-15 has been found not reliable for
multiple reasons. Firstly, he did not make disclosure to anyone of having
witnessed the incident even though the villagers had arrived and
congregated at the spot in sufficient numbers to instil confidence in any
person to make a disclosure against any person regardless of his position.
Secondly, instead of giving his statement to the investigating agency, the
witness  got an affidavit prepared from a lawyer, who prepared not one
but three affidavits identically worded. One was of PW15 and the other
two were of those two persons who could not appear as witnesses during
the trial. This would indicate that those affidavits were prepared on legal
advice. Thirdly, PW15’s version that Anil Kumar took out a country
made pistol to shoot the deceased appears improbable for two reasons,
namely, there was no proven motive to commit such an act and once
they had already fired from their rifles they could easily have used the
same to kill the deceased by giving the incident a colour of an encounter.
23. In respect of the incriminating circumstances such as the
presence of the
accused persons at the spot, use of service rifle to fire
shots and killing of the deceased by policemen, it was submitted that
they by themselves are insufficient to constitute a chain so far complete
as to indicate that in all human probability it were the accused and no
one else who committed the crime. Rather, there existed circumstances,
proven on record, such as the presence of few empty cartridges at the
spot which were not fired from rifles issued to the three accused, which
indicated the presence of some other person also and possibility of the
incident occurring in some other manner than set out by the prosecution.
24. Highlighting all the above points, the learned counsel for the
respondents submitted that this is not a case where the judgment and
order of the High Court be interfered with.
Analysis
25. We have considered the rival submissions and have perused
the record.
26.  At the outset, we may observe that no doubt the judgment
and order of the High Court appears a bit cryptic but that by itself need
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not be a ground for us to set aside the order and remit the matter to the
High Court, particularly, when we have the relevant record to assess the
merit of the prosecution case. More so, because the incident is of the
year 1987 and the appeal has remained pending since more than a decade.
In such circumstances, if we remit the matter to the High Court only to
rewrite the judgment, it would be travesty of justice. Consequently, as
the trial court has dealt with the matter at great length and has discussed
each and every piece of evidence on which the prosecution seeks to
rely, it would be apposite for us to assess whether, by not granting leave
to appeal against the judgment of the trial court, there has been a
miscarriage of justice.
27. It is trite law that in an appeal against acquittal, the power of
the appellate court to reappreciate evidence and come to its own
conclusion is not circumscribed by any limitation. But it is equally settled
that the appellate court must not interfere with an order of acquittal
merely because a contrary view is permissible, particularly, where the
view taken by the trial court is a plausible view based on proper
appreciation of evidence and is not vitiated by ignorance/misreading of
relevant evidence on record.
28. In the instant case, the prosecution case rested on ocular
account as well as on certain circumstances. The ocular account is
provided by PW-3, PW-6 and PW-15. PW-3 and PW-6 were traveling
with the deceased,
though on a separate scooter. They, therefore, had
the opportunity to witness the incident. According to them, while they
were traveling on their respective scooters, torch light was flashed at
them by men in police uniform. As a result, deceased’s scooter skidded.
Thereafter, when gun shots were fired they escaped and came to the
village. On information, a large number of persons from the village arrived
at the spot. What is important is that neither PW3 nor PW6 could identify
any of the three accused. They did not depose that the three policemen
involved in the crime were those who were facing trial. Thus, there is no
infirmity, much less perversity, in the view taken by the trial court that
the testimony of PW-3 and PW-6 is not of much help to the prosecution
qua the three accused facing trial.
29.  With regard to the testimony of PW-15, detailed reasons have
been recorded by the trial court to hold him unreliable and unworthy of
credit. Moreover, PW15’s presence is not confirmed by PW3 and PW6.
Otherwise also, PW15’s conduct of remaining silent for over a week
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creates a lingering doubt in our mind as to whether he is a witness set up
on advise, particularly, when we notice that his first statement was not
to the investigating agency but made on an affidavit prepared by a lawyer,
who simultaneously prepared three affidavits identically worded. The
trial court noticed all these facts as also that PW-15 was lying when he
stated that he went alone to get the affidavit prepared. The trial court
also noticed that all the three affidavits were prepared on stamp papers,
consecutively numbered, bought from the same vendor and the affidavits
were sworn in quick succession giving rise to a definite conclusion that
they were prepared by an advocate. The trial court also noticed that the
conduct of PW-15 was a bit unusual in the sense that he made no
disclosure to anyone including the father of the deceased yet, he
straightaway went to swear and dispatch an affidavit by post to a higher
officer of the police even though, by that time, the investigation had been
transferred to the CB-CID from the local police and, therefore, there
was no threat from the local police. In these circumstances, if the trial
court discarded the testimony of PW-15, in our view, the same was
justified.
30. Adverting to the proven circumstances, what transpires is that
the witnesses are consistent that there was a police action on that fateful
night. Assuming that it is true that in the night there was an
exchange of
fire between men in uniform and members of the public, but there is no
reliable evidence that the exchange of fire was with a view to kill.
Moreover, the deceased did not die of a rifle bullet injury. Rather, he died
from a .12 bore gun- shot which could not be ascribed to rifles issued to
the accused persons. Therefore, even if empties of rifle cartridges
relatable to service rifles issued to the accused were found at the spot,
culpability of the accused persons in causing death of the deceased is
not inferable. Further, there is no recovery of a .12 bore gun from any of
the accused persons facing trial. Notably, after the incident, villagers
congregated at the scene of crime. The police arrived at the spot and
took the injured to the hospital. According to the prosecution evidence,
the accused persons were present at the spot during this period.
Therefore, if they were really involved they could have been identified
by either PW3 or PW6, but there was no such event. Further, the continued
presence of the accused at the spot is a circumstance which goes in
favour of the accused, being a conduct that belies a guilty mind.
31. Another circumstance which goes in favour of the accused is
A
B
C
D
E
F
G
H
477
that, according to the prosecution’s own case, the accused persons, three
in number, had a rifle each with 50 rounds. Admittedly, some of the
empty cartridges found at the spot, as per the ballistic expert report,
were not fired from the rifle issued to the accused. This is indicative of
presence of some other rifle also. Whose rifle it was, the prosecution
evidence is silent.  Moreover, if the accused were to use their rifle to fire
shots why would they use a country made pistol to inflict injury to the
deceased.
32. The circumstance that the accused persons were required to
patrol that area and had left the police station for that end on that fateful
night is a circumstance which is not conclusive as to turn the tables on
the accused, inasmuch as the patrolling area covered two villages. It
may be possible that the accused arrived at the spot late, when the
incident had already taken place, and to chase away the miscreants,
fired shots from their service rifles. Be that as it may, once the ocular
account of PW-15 stood discarded, to clinch a conviction on the basis of
circumstances, the circumstances ought to have formed a chain so far
complete as to indicate that in all human probability it were the persons
facing trial and none else who committed the crime. Here the
circumstances found proved do not constitute a chain so far complete as
to indicate that in all human probability it were the accused persons and
no one else who committed the crime. In
such a situation, there was no
option for the trial court but to extend the benefit of doubt to the accused.
33. At this stage, we may put on record that the learned ASG
could not point out that the Trial Court ignored or misread any relevant
evidence.
34. For all the reasons as stated above, we do not find it to be a fit
case to interfere with the order passed by the High Court and remit the
matter only for the High Court to rewrite the judgment as the same, in
our view, would be an exercise in futility.  The appeal is dismissed.
Nidhi Jain
Appeal dismissed.
(Assisted by : Tamana, LCRA)
CENTRAL BUREAU OF INVESTIGATION v. SHYAM BIHARI
& OTHERS [MANOJ MISRA, J.]