GOLBAR HUSSAIN AND ORS.versusSTATE OFASSAMANDANR.

                     (2015] 5 S.C.R. 525


               GOLBAR HUSSAIN AND ORS.                            A

                               v.

              · STATE OFASSAMANDANR.

              (Criminal Appeal No. 181 of 2013)                   B

                       APRIL 28, 2015

 [PINAKI CHANDRA GHOSE AND R.K. AGRAWAL, JJ.]

        Penal Code, 1860- ss. 3021149- Prosecution under
                                                                  c
- Of five accused - Acquittal by trial courl - Conviction by
High Courl - On appeal, held: The two prosecution witnesses
were related, contradicted each other and were not supported
by any independent witness - Hence conviction based on D
those witnesses is not sustainable.

        Appeal - Appeal against acquittal - Power of
appellate court - Held: While deciding such appeal the
appellate courl has to bear in mind that presumption of E
innocence is available to the accused and such presumption
is reinforced by his acquittal - If two views are possible, the
view favourable to the accused, should be taken - Criminal
Jurisprudence.
                                                                   F
        Witness- Related witness- Evidentiary value- Held:
There is no bar on admissibility of testimony of related
witness, but it should stand the test of being credible, reliable,
trustworthy, admissible in accordance with law and
corroborated by other witnesses or documentary evidence. G

       Allowing the appeal, the Court

       HELD: 1.1 An appellate court, must bear in mind
that in case of acquittal, there is double presumption in H
                             525
526     SUPREME COURT REPORTS               [2015) 5 S.C.R.


A favour of the accused. Firstly, the presumption of
  innocence is available to him,under the fundamental
  principle of criminal jurisprudence that every person
  shall be presumed to be innocent unless he is proved
  guilty by a competent court of law. Secondly, the
B accused having secured his acquittal, the presumption
  of his innocence is further reinforced, reaffirmed and
  strengthened by the trial court. [Para 7] (531-D-F]

      Chandrappa and Ors. vs. State of Kamataka {2007} 4
c     SCC 415:2007 {2} SCR 630; Kallu alias Masih and
      Ors. vs. State of M.P. (2006} 10 SCC 313: 2006 (1)
      SCR 201 - relied on.

         1.2 The Trial Court has given a reasoned decision
D after careful and thorough analysis of the evidence
  produced by the parties. The trial court also had the
  advantage of looking at the demeanor of the witnesses,
  and was correct in granting the benefit of doubt to the
  accused and acquitting them. The High Court erred in
E presuming a version against the accused as the view
  which is favourable to the accused should be taken in
  cases where two views are probable. The view taken by
  the trial court was reasonable and probable in view of
F the facts of the present case. (Paras 8and10] [532-E-G;
  533-F]

         2.1 PW-4 and PW-5 are related witnesses. There
  is no bar on the admissibility of a statement by related
G witnesses supporting the prosecution case, but it should
  stand the test of being credible, reliable, trustworthy,
  admissible in accordance with law and corroborated by
  other witnesses or documentary evidence of the
  prosecution. It is the quality of the witness that matters
H and not the quantity, when the related witness was
  examined and found credible. In such a case, non-
       GOLBAR HUSSAIN v. STATE OF ASSAM                       527



e~amination of an independent witness would not be             A
fatal to the prosecution case. [Para 9] [532-H; 533-A-B]

  Manga alias Man Singh v. State of Uttarakhand (2013)
  7 SCC 629: 2013 (3) SCR 175- relied on.
                                                               B
       2.2 In the present case, however, the prosecution
witnesses PW-4 and PW-5, contradict each other, and
their statements are not corroborated by any
independent witness in spite of the incident happening
in the market place, with shops on both sides of the road. c
Therefore, as the testimonies of PW-4 and PW-5 are not
cc;>mpletely reliable, this is a fit case where corroboration
by an independent witness was required. The case of
the prosecution also weakens on the ground that the
only independent witness PW-8 turned hostile. [Para 9] D
(533-C-D]



  Shyama/SahaandAnr. v. StateofWestBenga/(2014)                E
  12 SCC 321:2014 (3) SCR 90 - relied on.

                   Case Law Reference

      2007 (2) SCR 630    relied on.           Para 7
      2006 (1) SCR 201    relied on.           Para 8          F
      2013 (3). SCR 175   relied on.           Para
      2014(3) SCR 90      relied on.           Para 9

      CRIMINALAPPELLATE JURISDICTION: Criminal
Appeal No. 181 of2013                                          G

     From the Judgment and Order dated 31.08.2012 of the
Gauhati High Court in Crl. Appeal No. 165 of 2004

      Ranjan Mukherjee, Azim H. Laskar, Sachin Das, Abhijit    H
528         SUPREME COURT REPORTS                [.2015] 5S.C.R.

A Sengupta, fortheAppellants.

           Kartika Sahay, Corporate Law Group, V. K. Jain, F. I.
      Choudhury, Rameshwar Prasad Goyal for the Respondents.
                               \

            The Judgment of th~ Court was delivered by
B
         PINAKI CHANDRA GHOSE, J. 1. This appeal is
  preferred by the appellants against the judgment and order
  dated 31.08.2012 passed by the Gauhati High Court in
C CriminalAppeal No.165 of 2004 whereby the High Court has
  allowed the appeal filed by the State and convicted all the
  appellants under Section 302 read with Section 149 of the
  Indian Penal Code ("IPC") and sentenced them to undergo
  rigorous imprisonment for life and to pay a fine of Rs.10,000/
o -each.
         2. The brief facts of the case, as per the prosecution
  story, are that on 5.1.2001 at about 6:10 p.m. at Chapra
  Beparipara which is under Chapar Police Station, the accused
E persons fotmed an unlawful assembly and in prosecution of
  the common object of such assembly, committed the murder
  of Hasen Ali. Amir Hussain, son of the deceased (PW-3)
  lodged an Ejahar about the incident at Chapar Police Station
  on 5.1.2001 at about 10:00 p.m. On receipt of the Ejahar, F.l.R.
F No.3/2001 was registered by Chapar Police Station and
  started investigation. The police arrived at the place of
  occurrence and called the Executive Magistrate who prepared
  the inquest on the dead body and the inquest was sent for
  post-mortem examination to Dhubri Civil Hospital. The police
G found one bag containing one dagger and two hand-made
  bombs lying near the dead body. After investigation, charge-
  sheet was submitted against the accused persons under
  Sections 147, 148,.149, 341and302 of the IPC. On 29.6.2001,
  the said charge-sheet'was received by the Chief Judicial
H
        GOLBAR HUSSAIN v. STATE OF ASSAM                           529
            [PINAKI CHANDRA GHOSE, J.]

Magistrate, Dhubri. Since the offence was triable exclusively A
by the Court of Sessions, the Chief Judicial Magistrate by his
order dated 15.3.2002 committed the case to the Court of
Sessions for trial. During the course of trial the prosecution
examined 10 witnesses to bring home the charges levelled
against the appellants. The defense adduced no evidence and B
took a plea of total denial.

         3. The Trial Courton a careful scrutiny of the evidence
 found that the statements of PW-4 & PW-5 were contradictory
 which created doubt as to the presence of these two witnesses     C
 atthe place of occurrence. Jamaluddin (PW-1) deposed that
 about 6 months ago, when he was returning from the Pharmacy,
 he met Shah Alam who said that his brother had been killed in
the market, but he did not mention the name of any person.         D
The incident took place in the market place where there were
 about 50 shops on both sides of the road. The Trial Court
observed that if accused Golbar and Abu Sama appeared from
the left and right, they must have come out of one of the shops
on both sides of the road since PW-4 categorically stated that     E
 he had not seen the accused persons on the road while they
were going towards the house of the deceased. But none of
the shopkeepers, adjacent to the place of occurrence, came
forward to depose that any occurrence as stated by PW-4 &
PW-5 had taken place in front of their shops. PW-5 during          F
cross-examination stated that he knew the names of two
shopkeepers and they are Sattar and Hazrat Ali. Hazrat Ali
(PW-2) did not state that the occurrence took place in front of
his shop. PW-5 further stated during cross examination that
the deceased was an accused in a murder case and had no            G
explanation as to whether the deceased would move around
having bombs and other weapons with him. The Trial Court
drew the conclusion that the seized articles were belonging to
the deceased persons. On analysis of the evidence the Trial        H
530       SUPREME COURT REPORTS                  [2015] 5 S.C.R.


A Court decided that the evidence of PW-4 and PW-5 was full of
  contradictions on material particulars and as such the
  testimony of these witnesses did not inspire any confidence.
  Under the circumstances, the uncorroborated testimony of PW-
  4 and PW-5 by some independent eye witness could not be
8 accepted to warrant the conviction of the accused persons.

         4. The High Court on the other hand overruled the
  decision of the Trial Court and convicted all the five accused
  under Section 302 read with Section 149 of IPC and
C sentenced them to undergo rigorous imprisonment for life and
  to pay a fine of Rs.10,000/- each.

         5. We have heard the learned counsel appearing for
  the appellants as also the learned counsel appearing for the
D State of Assam.

          6. The present case involves consideration on two
  issues. First being the powers of appellate Court while dealing
  with an appeal against an order of acquittal. Second, being
E the sufficiency of the testimonies of PW-4 and PW-5 to convict
  the accused persons without any corroboration from an
  independent witness and the relevancy of the statement of a
  hostile witness involving appreciation of the statement of PW-
  8 who turned hostile.
F
          7. On the first issue, the legal principles regarding
  powers of the appell~te Court while dealing with an appeal
  against an order of acquittal, have been reiterated by this Court
  in a catena of cases. This Court culled down five general
G principles in Chandrappa and Ors. vs. State of Karnataka,
  (2007) 4 sec 415, as follows:
      "(1) An appellate court has full power to review,
      reappreciate and reconsider the evidence upon which
H
      GOLBAR HUSSAIN v. STATE OF ASSAM                           531
          [PINAKI CHANDRA GHOSE, J.]

the order of acquittal is founded.                                A
(2) The Code of Criminal Procedure, 1973 puts no
limitation, restriction or condition on exercise of such
power and an appellate court on the evidence before it
may reach its own conclusion, both on questions of fact           B
and of law.

(3) Various expressions, such as, 'substantial and
compelling reasons', 'good and sufficient grounds', 'very
strong circumstances', 'distorted conclusions', 'glaring          c
mistakes', etc. are not intended to curtail extensive
powers of an appellate court in an appeal against
acquittal. Such phraseologies are more in the nature of
'flourishes of language' to emphasise the reluctance of
an appellate court to interfere with acquittal than to curtail    D
the power of the court to review the evidence and to come
to its own conclusion.

(4)An appellate court, however, must bear in mind that in
case of acquittal, there is double presumption in favour          E
of the accused._fii:stly; the presumption of innocence
is availableto him under the fundamental principle
of criminal jurisprudence that every person shall
be presumed to be innocent unless he is proved
guilty by a compete'nt court of law. Secondly, the                F
accused having secured his acquittal, the
presumption of his innocence is further reinforced,
reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the            G
basis of the evidence on record, the appellate court
should not disturb the finding of acquittal recorded by
the trial court."

                                      (Emphasis supplied)        H
532        SUPREME COURT REPORTS                     [2015] 5 S.C.R.

A           8. The Court referred to Kallu alias Masih and Ors.
      vs. State of M.P., (2006) 10 SCC 313, in the above-
      mentioned judgment, where it held that;

        "While deciding an appeal against acquittal, the power
B       of the Appellate Courtis no less than the power exercised
        while hearing appeals against conviction. In both types
        of appeals the power exists to review the entire evidence.
        However, one significant difference is that an order of
        acquittal will not be interfered with, by an appellate court,
c       where the judgment of the trial court is based on evidence
        and the view taken is reasonable and plausible. It will not
        reverse the decision of the trial court merely because a
        different view is possible. The appellate Court will also
        bear in mind that there is a presumption of innocence in
D
        favour of the accused and the accused is entitled to get
        the benefit of any doubt. Further if it decides to interfere,
        it should assign reasons for differing with the decision of
        the trial Court".

E In our view, the above mentioned are certain cardinal rules to
  be kept in mind in appeals against acquittal. In our view the
  Trial Court has given a reasoned decision after careful and
  thorough analysis of the evidence produced by the parties.
F The Trial Court also had the advantage of looking at the
  demeanor of the witnesses, and was correct in granting the
  benefit of doubt to the accused and acquitting them. The High
  Court erred in presuming a version against the accused as
  the view which is favourable to the accused should be taken in
G cases where two views are probable.

         9. The Second issue for consideration is the
  testimonies of PW-4 and PW-5 in absence of any corroboration
  from any independent witness. PW-4 and PW-5 are related
H witnesses as the¥ are the brothers of the deceased Hasen Ali.
  There is no bar on the admissibility of a statement by related
          GOLBAR HUSSAIN v. STATE OF ASSAM                           533
              [PINAKI CHANDRA GHOSE, J.)

witnesses supporting the prosecution case, but it should stand        A
the test of being credible, reliable, trustworthy, admissible in
accordance with lawand~orroborated by other witnesses or
documentary evidence of the prosecution. This Court has held
 in Manga alias Man Singh v. State of Uttarakhand, (2013)
7 SCC 629, that it is the quality of the witness that matters and     B
not the quantity, when the related witness was examined and
found credible. In such a case non-examination of an
independent witness would not be fatal to the prosecution case.
 In the present case, however, the prosecution witnesses PW-          C
4 anti PW-5, contradict each other, and their statements are
not corroborated by any independent witness in spite of the
incident happening in the market place, with shops on both
sides of the road. Therefore, in our view, as the testimonies of
PW-4 and PW-5 are not completely reliable, this is a fit case         D
where corroboration by an independent witness was required.
The case of the prosecution also weakens on the ground that
lhe only independent witness PW-8 turned hostile. A similar
situation arose in Shyamal Saha and Anr. v. State of Wesf
Bengal, (2014) 12 SCC 321, where the only independent                 E
witness turned hostile. This Court decided to affirm the acquittal
and granted benefit of doubt to the accused considering the
factual background and circumstances involved in the case.

        10. Therefore, in the light of the above conclusions on F
the issues for consideration, the view taken by the Trial Court
was reasonable and probable on the facts of the present case.
We are, therefore, of the opinion that the High Court should
not have set aside the acquittal of the appellants. Accordingly,
this appeal is allowed and the impugned judgment and order G
passed by the High Court is set aside. The appellants are
accordingly directed to be set free from incarceration, if not
required in any other case.

Kalpana K. Tripathy                                Appeal allowed.   H