Nimai Ghosh & Ors v. State of Bihar (Now Jharkhand)

8. Per contra, learned counsel Mr. Sujeet Kumar Chaubey representing the State has strenuously argued in support of the findings of the High Court, interalia 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 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 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: -

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 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:-

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.

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:-

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.

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:-

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 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 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: -

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 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 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:-

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 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 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 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.

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 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 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 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 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 setaside. 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 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.