Shri Parimal Gowala and ors. Vs. State of Tripura - Court Judgment

SooperKanoon Citationsooperkanoon.com/119788
Subject;Criminal
CourtGuwahati High Court
Decided OnMar-20-2007
JudgeT. Nandakumar Singh and Hrishikesh Roy, JJ.
AppellantShri Parimal Gowala and ors.
RespondentState of Tripura
DispositionAppeal allowed
Prior history
T. Nandakumar Singh, J.
1. The appellants/accused of this appeal is challenging the judgment and order dated 12-9-2001 and the order for sentence dated 15-9-2001 passed in S.T. 22 (WT/K) 2000 by the learned Additional Sessions Judge, West Tripura, Khowai convicting the appellants/ accused under Section 364 read with Section 34, I.P.C. sentencing them to suffer Rigorous Imprisonment for 10 years and to pay fine of Rs. 3000/- each I.D. to suffer further R.I. for 3 months and under Section 302 re
Excerpt:
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- - an unmerited acquittal does no good to the society. on being satisfied after knowing the contents of the ejahar, he put his l. in the absence of size and type of the bamboo torch which is in normal parlance is a very weak or/faint light, it would be hard to believe the prosecution story that the appellants/accused could be identified in the night at about 11 p. if the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable the courj. it remains admissible in the trial and there is no legal bar to base conviction upon his testimony if corroborated by other reliable evidence. para 27 before we conclude, we must place on record the fact that we are not unaware of the degree of agony and frustration that may be caused to the society in general.....
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t. nandakumar singh, j.1. the appellants/accused of this appeal is challenging the judgment and order dated 12-9-2001 and the order for sentence dated 15-9-2001 passed in s.t. 22 (wt/k) 2000 by the learned additional sessions judge, west tripura, khowai convicting the appellants/ accused under section 364 read with section 34, i.p.c. sentencing them to suffer rigorous imprisonment for 10 years and to pay fine of rs. 3000/- each i.d. to suffer further r.i. for 3 months and under section 302 read with section 34, i.p.c. sentencing them to suffer r.i. for life and fine of rs. 5,000/-each i.d., to suffer further r.i. for 5 months and the sentences will run concurrently.2. the golden thread which runs throughout the cobweb of criminal jurisprudence as administered in india is that nine guilty.....
Judgment:

T. Nandakumar Singh, J.

1. The appellants/accused of this appeal is challenging the judgment and order dated 12-9-2001 and the order for sentence dated 15-9-2001 passed in S.T. 22 (WT/K) 2000 by the learned Additional Sessions Judge, West Tripura, Khowai convicting the appellants/ accused under Section 364 read with Section 34, I.P.C. sentencing them to suffer Rigorous Imprisonment for 10 years and to pay fine of Rs. 3000/- each I.D. to suffer further R.I. for 3 months and under Section 302 read with Section 34, I.P.C. sentencing them to suffer R.I. for life and fine of Rs. 5,000/-each I.D., to suffer further R.I. for 5 months and the sentences will run concurrently.

2. The golden thread which runs throughout the cobweb of criminal Jurisprudence as administered in India is that nine guilty may escape but one innocent should not suffer. But at the same time no guilty should escape unpunished once the guilt has been proved to hilt. An unmerited acquittal does no good to the society. If the prosecution has succeeded in making out a convincing case for recording a finding as to the accused being guilty, the Court should not lean in favour of acquittal by giving weight to irrelevant or insignificant circumstances or by resorting to technicalities or by assuming doubts and give benefit thereof where none exists. A doubt, as understood in criminal jurisprudence, has to be a reasonable doubt and not an excuse for a finding in favour of acquittal. An unmerited acquittal encourages wolves in the society being on the prowl for easy prey. Reference : State of Rajasthan v. N.K. the accused : 2000CriLJ2205 .

3. Heard Mr. S. Sarkar, learned Counsel appearing for the appellants/accused and Mr. A. Ghosh, learned Public Prosecutor, for the respondent.

4. The prosecution story as unfolded the trial, in a nut shell are as follows:

5. Shri Kuni Gour (informant/PW-1) lodged an ejahar (Ext. P-5) on 21-1-99 stating that some miscreants came to his house on 20-1-99 at about 11.00 O'clock in the night and called his father Kartik Garh (deceased), aged about 60 years asking for drinking water. He could understand that the person will be Parimal Goala (appellant) of his village. On hearing the sound at door step of his father, he lighted the lukka (mashal) on bamboo chati and opening the door he saw that said Sri Parimal Goala (appellant) was taking his father by catching hold of his hand forcibly saying that his father was called by Saheb. He also could identify the miscreants, namely, (1) Sri Surjya Goala (2) Sri Ram Charan Goala (3) Sri Naryan Goala of the same locality amongst the other miscreants by flame of the fire of Lukka (marshal) which was lighted on bamboo chati and while he started proceeding behind them asking them not to take his father forcibly, the said Surjya Goala and Narayan Goala came running in order to assault him as a result of which he did not go ahead out of fear. The miscreants had taken away his father to the north-west side. Immediately after the said incident, he went to the house of Suk Gour (PW-6). He along with his younger brother, named Mana Gour and along with his wife Smt Parbati Gour PW3, Younger sister and one Surat Tanti, PW5 of their village carried out extensive search for his father and after that they found their father with bleeding injuries in the Jungle at about 18 km on the north-west side of Laxmi Narayanpur. Thereafter when his father was brought home for getting him admitted in the hospital he died at about 1.00 O'clock. It is stated that a dispute had been going on regarding the boundary of the land with the said Ram Charan Goala for the last 14/15 years.

6. On receipt of the said ejahar, Officer -in-charge, Kalyanpur P.S. registered a case being Kalyanpur P.S. Case No. 5/99 under Section 302/34, IPC against the 5 (five) appellants/accused and started investigation of the case. After completion of the investigation, charge-sheet against all the 5 (five) appellants/accused for the commission of offence punishable under Section 364/302/34, IPC showing the appellants/accused Parimal Goala, Nirmal Goala and Narayan Goala as absconders was submitted. The learned trial Court framed the charge against the appellants/accused under Section 364/302/34, IPC to which the appellants/accused pleaded not guilty and claimed to be tried.

7. In support of the prosecution case, the prosecution examined 9 (nine) PWs i.e.P.W-1, Sri Kuni Gour (informant/eyewitness, son of the deceased), PW-2, Smt Kalpana Gour (eye-witness/daughter of the deceased), PW-3, Smt Parbati Gour (eye witness/daughter in law of the deceased), PW-4, Sri Amar Gour, PW-5, Sri Suresh Tanti, PW-6, Sri Suku Gour, PW-7, Sri Pandav Debbarma, PW-8 Dr. Pranati Das, who performed the autopsy and PW-9, Sri Pradip Kumar Bhowmik, I.O. The appellants/accused were examined under Section 313, Cr.P.C. and from the statements of the appellants/accused under Section 313, Cr.P.C, it appears that the case of the defence is total denial.

8. The High Court being the First Appellate Court against the impugned judgment and order and the order of sentence passed by the learned trial Court (learned Sessions Judge) is required to consider and reappreciate the evidence on record. The High Court while considering the appeal which is an extremely valuable right to the appellants/accused against the judgment and order convicting them under Section 364/302 and 34, IPC cannot dispose of the appeal without going into the facts and the question of law involved in the case. The disposal of the appeal on the basis of some general observation without making any effort to go into the evidence on record would amount to denial of the right of appeal to the appellants/accused. (Reference Narendra Nath Khware v. Parasnath Khware : 2003CriLJ2340 .

9. PW-1, Sri Kuni Gour deposed that about two years back on 6th Magha at about 11 p.m. the incident took place. At the time of incident he was sleeping with his wife Parbati Gour (PW-3) in the southern viti hut. At about 11 p.m. Parimal Goala came to their house and called his father by his name. His father refused to open the door, but the appellant-Parimal Goala started kicking the door with a view to break it and compelled his father to open the door. As soon as his father opened the door, the accused persons pulled him by his hand. Hearing the cry of his father, he came out from his room with a bamboo lamp and by the light of bamboo tamp he had seen the appellants/accused Parimal Goala, Surjya Goala, Ramcharan Goala, Narayan Goala and Nirmal Goala, dragging his father towards west in the forest. The accused persons were armed with Dao, lathi etc. and when he tried to rescue his father the accused persons came towards him violently with dao. As he became frightened he could not proceed further. The accused persons dragged his father in deep forest. Then he informed Suraj Tanti about the incident. With Suraj Tanti he went to the house of Amar Gour (PW-4) and Suku Gour (PW-6) and informed the matter to them. His brother Mana was sleeping in the house of Suku. He also informed the matter to him. With their help he went to search his father. On way at Laxminarayanpur Colony near a culvert in a bush he had seen his father lying injured. He was not in a position to speak. He lifted his father and brought him in their house. He also deposed that they could not remove his father to hospital for want of conveyance. His father succumbed to his injuries after about an hour. On the following morning he went to Kalyanpur Police Station and lodged ejahar. His ejahar was reduced into writing by a police officer as per his dictation and it was read over and explained to him by the said police officer. On being satisfied after knowing the contents of the ejahar, he put his L.T.I. therein.

10. In his cross-examination he stated that he handed over the bamboo torch to the Police. He also stated in his statements recorded by the I/O (Ext. D-1) which was proved by the I/O that the accused persons were armed with dao and lathi and they were concealing their face at the time of incident.

11. From the deposition of the PW-1 and also from the time of the incident i,e. 11.00 O'clock in the night, ii is clear that the PW-1 could identify the appellants/accused in the night by the light of bamboo lamp which has been handed over to the police. PW-2 Smt Kalpana Gour deposed before the trial Court on 29-5-2001 that approximately one year back on a certain night in the month of Magha at about 11 p.m. she was sleeping in the room in which her father Kartik Gour (deceased) was also sleeping. At about 11 p.m. accused Parimal Goala called her father by his name to open the door stating that her father was summoned by the Saheb of Tea Garden. Her father refused to open the door. Parimal Goala then kicked the door and asked for a glass of water. As soon as her father opened the door, Parimal Goala along with other appellants/accused dragged her father. Her elder brother Kuni Gour, PW-1 (informant) came to the spot with a bamboo torch light and by the light of the torch, he could identify the appellants/accused who were previously known to him. The PW-2 and her elder brother Kuni Gour then called the villagers and searched for their father. Her father was found injured condition in a place known as Laxminarayanpur. Her father was brought in the house but could not be removed to hospital for want of conveyance. In her cross-examination she (PW-2) stated that her elder brother Kuni Gour (PW-1) was in the house since evening on the date of incident. She also further stated that some neighbors came to their house at the time of incident.

12. PW-3 Smt Parbati Gour (wife of the PW-1) Sri Kuni Gour and also the daughter-in-law of the deceased before the trial Court on 29-5-2001 that the informant, Kuni Gour (PW-1) is her husband. Approximately, 2 years back on a certain night of Magha at about 11 p.m. the incident took place. At about 11 p.m. she along with her husband was preparing to go to sleep and at that time she heard a hue and cry. Accused Parimal Goala called her father in law by his name saying that he was called by Saheb of the Tea Garden. When her father-in-law refused to open the door, the appellant/accused Parimal kicked the door and demanded a glass of water. She had seen accused Parimal kicked the door when she went near the place with her husband with a bamboo torch. By the focus of bamboo torch light she could identify all the accused persons As soon as her father-in-law opened the door the 5 (five) accused persons dragged him towards west She along with Kalpana and her husband tried to rescue her father-in-law but the accused persons came violently towards them with dao and lathi and being frightened they re treated. Thereafter they went to the house of Suresh Tanli (PW-5) and from the house of Suresh Tanli, they went to the house of Sri Suku Gour (PW-6) and then to Lakshmicharan Gour and informed the incident to them. The villagers and her husband searched her father-in-law and could trace out him at a place known as Lakshminarayanpur. He was found with severe injuries. Her father-in-law was not in a position to speak and they could not remove him to hospital for want of conveyance. Her father-in-law succumbed to his injuries. After a while he was brought to their house. In her cross-examination she stated that she did not state to I/O that she was alone in the southern viti In her statement recorded by the I/O marked as Ext. D-3 which was proved by the I/O, she stated that her husband did not return home from market and about 11 p.m. somebody came to their house and called her father-in-law and as she was alone she kept mum.

13. PW-4 Sri Amar Gour deposed before the trial Court on 23-5-01 that about 2 years back on a certain night at about 11 p.m. PW 1 Kuru Gour went to his house and informed them that his father had been kidnapped by Ram Charan Goala, appellant/ accused He along with Suresh Tanti (PW-5) Mana Gour (son of deceased), Kuni Gour (PW-1) searched for their father i.e. deceased and found him in injured condition at Laxminaryanpur. Therefore, the deceased Kartik Gour brought to his house but could not take him to hospital. He died after a while. PW-4 had been declared hostile and cross-examined by the prosecution.

14. PW-5 Sri Suresh Tanti deposed that the informant PW-1, Kuni Gour and the accused persons are known to him as they are co-villagers. As he did not support the case of the prosecution, he was declared hostile.

15. Learned Counsel appearing for the appellants/accused strenuously contended that non-mentioning of the important fact in the ejahar (Ext P-4) such as, non-mentioning of the fact that the appellants/accused were armed with deadly weapons, such as, dao. lathi etc. and non-mentioning of eye-witness create a serious doubt in the prosecution story in support of the contention, the learned Counsel appearing for the appellants/accused had placed reliance on the decisions of the Apex Court

(1) State of Gujarat v Patel Mohan Mulji 1994 Cri LJ 280

(2) Joseph alias Jose v. State of Kerala 2003 Cri LJ 2543

(3) Ram Kumar Pande v. State of Madhya Pradesh : 1975CriLJ870

(4) Decision of the Division Bench of this Court in Laba Chandra Dutta v. Slate of Tripura 2000 Cri LJ 1523 (Gau).

16. FIR (ejahar) is a previous statement which can, strictly speaking, be only used to corroborate or contradict the maker of it. The statement of the PW-1 that the appellants/accused were armed with dao, lathi etc while they dragged his father and because of their violent act with dao, lathi etc. he could not proceed further to rescue his father are seriously doubtful, in as much as, the statements of the PW-1 were contradicted by the FIR (ejahar), Ext. P-5).

17. In the instant case, the FIR was filed in the next morning of the incident stating that the incident took place at about 11 a.m. and the injured Kartik Gour were found lying in injured condition at a place Laxminarayanpur which is about 18 km. from the house of the deceased and brought the deceased to his house and died at 1.00 O'clock of the same night. The deceased could not be taken to the hospital on the' night of the date of incident i.e. 11 O'clock night as there was no conveyance. It would not be possible to bring back the injured Kartik Gour from the place at Laxminarayanpur which is a distance of 18 km from the house of the deceased within 2, hours on foot without any conveyance. As such, the case of the prosecution that the victim was brought back from the northern side of Laxminarayanpur within 2 hours to the house of the victim without any conveyance is not humanly possible inasmuch as, the distance to be covered for going to the said place at Laximinarayanpur from the house of the victim and back to the victim to his house would be 36 km.

17A. The statement of the PW-1, Kuni Gour (informant) and also the story of the prosecution the appellants/accused armed with dao, lathi etc. had come to the house of the victim in the night of about 11 p.m. is not corroborated by the statement of the PW-2, Smt Kalpana Gour (daughter of the victim/eye-witness), rather contradicted by the statement of the PW-2. The PW-9, Shri Pradip Kr. Bhowmik, I/O did not seize any (arms from the possession of the appellants/ accused or from the place of occurrence or at the pointing of the appellants/accused.

18. The occurrence took place in the night at about 11 p.m. of 20-1-99 and the eye-witnesses stated that they could recognize the appellants/accused by the light of bamboo torch (Bamboo Lamp (Mashal). PW-1 Kuni Gour stated in his cross-examination that he had handed over the bamboo torch to the police. His statement is not corroborated by the statement of PW-9, Sri Pradip Kr. Bhowmick. In his statement before the Court he stated that he did not seize any bamboo torch as the same was not produced before him. The bamboo torch which iS the very material exhibit, without which the prosecution story against the appellants/accused could not be accepted, was not seized by the I/O, PW-9, Sri Pradip Kr. Bhowmick.

19. Learned Counsel appearing for the appellants/accused submits that non-seizure of the bamboo torch light with which the appellants/accused were identified by the eye-witness create a serious doubt of the 'prosecution story. The appellants/accused should be entitled to benefit of doubt. In support of his contention, learned Counsel had pressed judgment and order of this Court (Division Bench) in Laba Chandra Dutta v. State of Tripura (supra) into service. The prosecution story in Laba Chandra (supra) is that the eye-witness could identify the miscreants with the light of mashal but the mashal was not included in the list of the different materials seized from the place of occurrence. As mashal was not seized by the I/O, this Court in Laba Chandra Dutta (supra) held that the prosecution story of identification of the appellants/accused with the help of light of a mashal appears to be an afterthought introduced to lend credence to the prosecution story. Therefore, it would be difficult to rely on the prosecution story that the eyewitness identified the appellants/accused. Paras 10 and 11 of the judgment in Laba 'Chandra Dutta (supra) are quoted below:

Para 10-- There is other important feature in the prosecution case on account of which the appellants are entitled to benefit of reasonable doubt, PW-21 had stated in his examination-in-chief that he could identify the appellants out of 5/6 miscreants with the help of light of a mashal but the fact that he identified the appellants in the light of a mashal has not been corroborated in his statement under Section 164, Cr.P.C. recorded by the Magistrate on 19-6-84 (Ext.6). This has been put to him in his cross-examination and he started that he did not remember that whether he stated before the Magistrate that he could identify the appellants with the help of light of a mashal. PW-22 has also stated in the examination-in-chief that his uncle had a burning mashal in his hand. But the seizure list Ext. 2 does not disclose that any mashal was seized from the place of occurrence. PW-23, the Investigating Officer has stated in examination-in-chief that a Kupabati was seized from the place of occurrence but has sought to explain in his cross-examination that although mashal was seized, Kupabati was mentioned in the seizure list. But the description of the lamp given in the seizure list Ext. 2 against item No. XII is one flat lamp made of coconut oil can The incident occurred at about 7/7.30 p.m. when admittedly it was dark and the accused persons could not be identified without light. Thus the prosecution story of identification of the appellants by PWs 21 and 22 with the help of light of mashal appears to be an afterthought introduced to lend credence to the prosecution story. It is, therefore, difficult to rely on the prosecution case the PWs 21 and 22 identified the appellants out of 5/6 miscreants particularly when the first version of PWs 21 and 22 before the PW-1 soon after the incident at about 8.00 p.m. on the same night was that they could identify only Bhutto out of 5/6 miscreants.

Para 11-In the result, appellants are entitled to benefit of reasonable doubt. The appeal is allowed and the conviction of appellants, namely, Laba Chandra Dutta, Kusha Ranjan Dutta and Pradip Dutta under Section 302/34, IPC is set aside and they are acquitted of the charges. The appellants are in custody. They shall be released forthwith.

20. The prosecution story of identifying the appellants/accused by the light of the bamboo torch appears to be material improvement, inasmuch as, PW-9, I/O stated that the witness PW-6 Shri Suku Gour while recording his statement under Section 161, Cr.P.C., he stated that the appellants/accused concealed their face. The learned Counsel appearing for the appellants/accused also referred to the decision of the Apex Court in Joseph alias Jose v. State of Kerala (supra). The prosecution story in Joseph alias Jose (supra) is that the witness identify the appellants/accused in the light of the Kerosene lamp burning in the house of the witness and there was no supply of electricity at the time of occurrence at about 10.30 p.m. The I/O seized the coconut oil/ candle in the light from place of occurrence. But the Apex Court held that the light coming from the candle/Kerosene Oil will not be sufficient to identify the appellants/accused. In the present case, neither the bamboo torch was seized nor any of the eye-witness i.e. PW-1 Kuni Gour, PW-2 Smt Kalpana Gour, PW-3 Smt Parbati Gour mentioned about the size and type of the bamboo torch. In the absence of size and type of the bamboo torch which is in normal parlance is a very weak or/faint light, it would be hard to believe the prosecution story that the appellants/accused could be identified in the night at about 11 p.m. at the house of the eye-witness where admittedly there is no supply of electricity by the light of the bamboo torch by the PW-1 Kuni Gour, PW-2 Smt Kalpana Gour and PW-3 Smt Parbati Gour.

21. The learned Counsel appearing for the appellants/accused by referring to the decision of the Apex Court in Rajeevan v. State of Kerala : 2003CriLJ1572 submitted that there are inconsistency between the facts mentioned in the FIR and the version of the informant PW-1, Kuni Gour in the Court, and there are material development of the prosecution story after thought and as such prosecution story is doubtful.

22. The presence of the eye-witness PW-1, Kuni Gour (informant) at the time of occurrence at about 11 p.m. at the house of the victim is very doubtful, inasmuch as, PW-3 Smt Parbati Gour who is the wife of the PW-1, Kuni Gour stated that her husband PW-1 Kuni Gour did not return home from market and at about 11 p.m. somebody came to her house and called her father-in-law and as she was alone, she kept mum according to her statement recorded under Section 161 of the Cr.P.C. Ext. D-3 by the J/O i.e. PW-9 Shri Pradip Kr Bhowmik. PW-9 and proved by the I/O in the course of his examination before the trial Court. The statement recorded under Section 161, Cr.P.C. no doubt cannot be used for the purpose of corroboration but can be used for the purpose of contradiction.

23. This Court (Division Bench) in Nurul Mlah v. State of Tripura : (2004)7SCC338 held that the statement recorded under Section 161, Cr.P.C. can only be used only for the purpose of contradiction and not for corroboration. Para 24 of the judgment in Nurul Miah (supra) reads as follows:

Para 24- What emerges from the above discussion is that notwithstanding the fact that Ext. P/1 has been treated as the FIR, the nomenclature so used was misconceived under the law and the same was nothing, but a statement made by PW-1 to the police during the coursed of investigation of the case. The utility of the previous statement of a prosecution witness is settled by a catena of judicial decisions. A statement recorded under Section 161 Cr PC is not a substantive piece of evidence and the same can be used only for the purpose of contradiction land nor for corroboration. See Som Nath v. Union of India reported in 1971 Cr. L.J. 1422; Sat Paul v. Delhi Administration reported in 1976 Cr. L.J. 295; Chinnamal v. State of Tamil Nadu reported in (1971) 1 SCC 145; Balu Das v. State of Bihar reported in : (1998)8SCC130 and Abdul Kalam v. State of Tripura reported in 2001 (3) GLT 35.

24. All the eye witnesses i.e. PW-1 (Kuni Gour), PW-2 (Smt. Kalpana Gour, PW-3 (Smti Parbati Gour are the near relatives of the deceased (Kartik Gour), inasmuch as, PW-1 (Kuni Gour) is his son, PW-2 (Smt Kalpana Gour) is his daughter and PW-3 (Smt Parbati Gour) is his daughter-in-law. PW-2 (Smt Kalpana Gour in her cross examination portion stated that some neighbors came to their house at the time of incident.

25. The learned Counsel appearing for the appellants/ accused submitted that if some neighbors were at the time of incident according to the statement of PW-2 (Smt Kalpana Gour), no reason was given by the prosecution as to why none of the independent eye witnesses were examined in support of the prosecution case. The non-explanation /omission to examine independent eye witness would give rise to adverse inference according to the learned Counsel appearing for the appellants/accused and for such submission made by the learned Counsel, he referred to the decision of the Apex Court in Hem Raj and Ors. v. State of Haryana : 2005CriLJ2152 . Para-10 of the judgment in Hem Raj and Ors. (supra) read as follows:

Para 10 Non-examination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eye witnesses raise serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness Kapur Singh, would assume significance. This Court point out in Takhaji Hiraji v. Thakore Kubersing Chamansing and Ors. : 2001CriLJ2602 :.if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of such other witnesses may not be material. In such a case, the Court ought to scrutinize the worth of the evidence adduced. The Court of facts must ask itself whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the Court. If the answer be positive then only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable the Courj. can safely act upon it, uninfluenced by the factum of non-examination of other witnesses. In the present case we find that there are at least 5 witnesses whose presence at the place of the incident and whose having seen the incident cannot be doubted at all. It is not even suggested by the defence that they were not present at the place of the incident and did not participate therein.

26. The learned Counsel appearing for the appellants/accused also further placed reliance on the decision of the Apex Court in D.V. Shanmugham and Anr. v. Slate of A.P. : 1997CriLJ3129 and submitted that even though the independent witnesses were available, they were not examined and only the related witnesses were examined in the present case and in such situation the prosecution case has to be scrutinized with more care and caution.

27. Further the statement of the PW-1 (Kuni Gour) that immediately after the incident, he informed about the incident to Suresh Tanli (PW-5), Amar Gour (PW-4) and Shri Suku Gour (PW6) are not corroborated by the statement of PW-4 (Shri Amar Gour) and PW 6 (Sri Suku Gour). Both the PW-4 and PW-6 were declared hostile by the prosecution.

28. The Apex Court in Koli Lakhmanbhai Chanabhai v. State of Gujarat AIR 2000 SC 210 held that the evidence of the hostile witness cannot be treated as washed off the record. It remains admissible in the trial and there is no legal bar to base conviction upon his testimony if corroborated by other reliable evidence. By Section 9 of the Criminal Law (Amendment) Act 2005 (Act No. 2 of 2006) Sub-section (2) has been inserted to Section 154 of the Evidence Act. Section 9 of the Criminal Law (Amendment) Act, 2005 (No. 2 of 2006) read as follows:

9. Amendment of Section 154 of Act 1 of 1872.-- In the Indian Evidence Act, 1872, Section 154 shall be numbered as Sub-section (1) thereof and after Sub-section (1) as so numbered, the following sub-section shall be inserted, namely:

(2). Nothing in this section shall disentitle the person so permitted under Sub-section (1), to rely on any part of the evidence of such witness.

29. For what has been discussed above, we are of the considered view that that the prosecution story might have been proved for moral conviction, but short of the standard of proof which would be required in a criminal trial. Accordingly, we are of the firm view that the appellants/accused ought to have been acquitted. We may here recall the decision of the Apex Court in Mousam Singha Roy and Ors. v. State of W.B. : (2003)12SCC377 . Paras 27 and 28 of the judgment in Mousam Singha Roy and others (supra) are as follows:

Para 27 Before we conclude, we must place on record the fact that we are not unaware of the degree of agony and frustration that may be caused to the society in general and the families of the victims in particular, by the fact that a heinous crime like this goes unpunished, but then the law does not permit the Courts to punish the accused on the basis of moral conviction or on suspicion alone, The burden of proof in a criminal trial never shifts, and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence. In a similar circumstances this Court in the case of Sarwan Singh Rattan Singh v. State of Punjab stated thus : 1957CriLJ1014 p. 645, Para 12.

It is no doubt a matter of regret that a foul cold blooded and cruel murder should go unpunished. There may also be an element of truth in the prosecution story against the accused. Considered as a whole, the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted.

28. It is also a settled principle of criminal Jurisprudence that the more serious the offence, the stricter the degree of proof, since a higher degree of assurance is required to convict the accused.

30. In the result this appeal succeed. Conviction and sentence passed against the appellants/accused are hereby set aside. Appellants/accused are directed to be set at liberty forthwith, if they are not on bail and if they are not wanted in connection with any other case.

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