NIMAI GHOSH & ORS.versusTHE STATE OF BIHAR (NOW JHARKHAND)

                 [2025] 1 S.C.R. 1932 : 2025 INSC 816

                        Nimai Ghosh & Ors.
                                  v.
                 The State of Bihar (Now Jharkhand)
                     (Criminal Appeal No. 102 of 2013)
                               23 January 2025
            [J.K. Maheshwari* and Aravind Kumar, JJ.]


                           Issue for Consideration
       The instant criminal appeal assails the findings recorded by the
       High Court, thereby convicting the appellants herein u/s.302/34 of
       IPC and s.27 of the Arms Act, 1959. Whether the findings recorded
       by the High Court in the facts and circumstances of the case is
       sustainable.

                                  Headnotes†
       Penal Code, 1860 – s.302/34 – Arms Act, 1959 – s.27 – P.S. Case
       No. 127/89 was registered on 09.07.1989 arraying six persons
       as accused for committing murder of father of the informant
       (PW-8) – The Trial Court acquitted all the six persons, inter-alia,
       holding that testimonies of the witnesses cannot be believed –
       In appeal, the High Court sustained acquittal qua three accused
       persons, however, the other three accused-appellant herein
       were convicted for the offences as charged – Correctness:
       Held: 1. In view of the facts and circumstances of the instant case,
       in considered opinion of this Court, the prosecution has miserably
       failed to prove the allegations of the commission of murder by the
       appellants – 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 set aside –
       Accordingly, the impugned judgment stands set aside – The order
       of the Trial Court stands restored. [Para 24]
       2. The normal conduct of the son (PW-8) and other two nephews
       (PW-5 and PW-8) 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

* Author
[2025] 1 S.C.R.                                                               1933

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


     members and villagers – The 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. [Paras 9, 23]
     3. All the three eyewitnesses (PW-8, PW-2, PW-5) are unable
     to say who were the chance witnesses at the time of incident
     and saw the commission of crime by the accused persons – It
     is pertinent here to mention that in the present case, neither the
     pistol nor the knife was recovered or seized – The testimony of
     first investigating officer (PW–11), wherein he has deposed that
     information was received through telephonic message, however in
     the cross-examination of second investigating officer (PW–10) to
     whom investigation was later carried forward to, he has specifically
     mentioned that no telephone was installed in the police station –
     Also, 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 – In view of the foregoing
     facts, the prosecution has failed to prove the allegations of the
     commission of murder by the appellants. [Paras 20-24]
     Evidence – Unnatural beaviour of witness – Discussed.
     [Paras 10-15]

     Evidence – Eye-witnesses – Quality of evidence – Conduct
     of witness:
     Held: 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
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    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. [Para 16]

    Evidence – Relative or friend of accompanying deceased –
    Furnishing information to police or relative – Relevant
    factor:
    Held: 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. [Para 17]

                             Case Law Cited
    Alil Mollah and Anr. v. State of West Bengal [1996] Supp. 3 SCR
    666 : (1996) 5 SCC 369; Gopal Singh v. State of Madhya Pradesh
    [2010] 6 SCR 1062 : (2010) 6 SCC 407; Shivasharanappa and
    Others v. State of Karnataka [2013] 5 SCR 1104 : (2013) 5 SCC
    705; Lahu Kamlakar Patil and Another v. State of Maharashtra
    [2012] 9 SCR 1173 : (2013) 6 SCC 417; Amar Singh v. State (NCT
    of Delhi) [2020] 8 SCR 751 : (2020) 19 SCC 165; Narendrasinh
    Keshubhai Zala v. State of Gujarat [2023] 2 SCR 746 : (2023) 18
    SCC 783 – relied on.

                               List of Acts
    Penal Code, 1860; Arms Act, 1959.
[2025] 1 S.C.R.                                                          1935

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


                            List of Keywords
     Evidence; Eye-witness; Relative or friend of accompanying
     deceased; Furnishing information to police or relative; Quality of
     evidence; Conduct of witness; Unnatural behaviour of witness;
     Testimony of eyewitness; Delay in lodging the FIR; Chance
     witnesses.

                           Case Arising From
     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
     102 of 2013
     From the Judgment and Order dated 02.08.2012 of the High Court
     of Judicature at Jharkhand at Ranchi in GA No. 31 of 1998

                        Appearances for Parties
     Advs. for the Appellants:
     Jayesh Gaurav, Ishwar Chandra Roy, T. Mahipal.
     Advs. for the Respondent:
     Ms. Pallavi Langar, Sujeet Kumar Chaubey.

                Judgment / Order of the Supreme Court

                                Judgment

     J.K. Maheshwari, J.

1.   Challenging the findings recorded by High Court of Jharkhand in
     judgment dated 02.08.2012 passed in Government Appeal (DB)
     No. 31 of 1998, convicting the appellants for the charges under
     Section 302/34 of Indian Penal Code, 1860 (in short ‘IPC’) and
     Section 27 of the Arms Act, 1959, by setting-aside the judgment
     of acquittal dated 02.04.1998 of Additional Sessions Judge, Pakur,
     in Sessions Trial No. 148 of 1990, the present appeal has been
     preferred by the accused-appellants.
2.   The necessary facts in brief are, P.S. Case No. 127/89 was registered
     by Shyama Ram, A.S.I., the Investigating Officer (PW–11) on the
     basis of fardbeyan of Janmejay Ghosh (PW–8, informant and son
     of deceased) on 09.07.1989 at 05.30 a.m. The incident allegedly
     took place on 08.07.1989 at around 4 p.m., in which one Manmohan
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     Ghosh (father of the informant) was murdered. The P.S. Case was
     registered against six accused persons namely (i) Nimai Ghosh; (ii)
     Sonachand Ghosh; (iii) Sambal Ghosh; (iv) Gaya Nath Ghosh; (v)
     Shridhar Ghosh and (vi) Sachin Ghosh. After investigation, challan
     was filed against all accused persons. The prosecution was unable
     to prove the case beyond reasonable doubt leading to acquittal of all
     the accused persons. On filing appeal by the State, the High Court
     dismissed the same qua three accused persons sustaining their
     acquittal, however, by partly allowing the appeal qua other three
     accused persons namely (i) Nimai Ghosh; (ii) Sonachand Ghosh
     and (iii) Sambal Ghosh, they have been convicted for the offences
     as charged, hence, this appeal.
3.   As per case of prosecution, on 08.07.1989 at about 3 p.m., the
     deceased Manmohan Ghosh accompanied with his son Janmejay
     Ghosh (PW–8), Megh Nath Ghosh (PW–5, nephew of deceased on
     maternal side) and Shankar Ghosh (PW–2, nephew of deceased
     on paternal side), started on bicycles from village Malaypur to visit
     Pakur, where the house of the deceased was under construction.
     Around 4 p.m., when they reached the railway bridge near village
     Dadpur, Janmejay Ghosh saw Nimai Ghosh and Sonachand Ghosh
     (appellants–accused) came from eastern side of the railway under
     bridge. Co-accused Gaya Nath Ghosh, Shridhar Ghosh, Sachin
     Ghosh and Sambal Ghosh also came from the western side of the
     bridge. Accused Nimai Ghosh and Sonachand Ghosh were armed
     with pistol and they forcibly dragged the deceased under the railway
     track, where Nimai Ghosh fired on the back of the deceased, as a
     result of which deceased fell down and started bleeding. Co-accused
     Sonachand Ghosh shot second fire with intention to kill him. In the
     meantime, while the deceased was bleeding and withering, Sambal
     Ghosh assailed him by means of knife, as such the deceased
     succumbed to the injuries. As further alleged, the entire incident
     was witnessed by Janmejay Ghosh (PW–8), Megh Nath Ghosh
     (PW–5) and Shankar Ghosh (PW–2) and when alarm was raised by
     them, accused persons threatened to kill them. Fearing the same,
     they could not save the deceased. Thereafter, the accused persons
     left the place and moved towards Purab Jheel. The motive for the
     incident attributed in the fardbeyan is of previous enmity and prior
     litigation of deceased with accused Gaya Nath.
[2025] 1 S.C.R.                                                       1937

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


4.   On 09.07.1989, the next day of incident, at around 5.30 a.m., the
     Investigating Officer (PW–11) reached the place of scene and recorded
     the statement of Janmejay Ghosh (PW–8). Later, the investigation
     was carried out by Dinanath Ram (PW–10).The post-mortem was
     conducted by Dr. S.K. Gupta (PW–1) on 09.07.1989,wherein following
     injuries were found –
     (i)    One injury having one inch diameter round shape with burnt
            periphery on the angle of left scapula entrance wound;
     (ii)   One injury to the continuation of injury no. 01 on the left side
            of the chest, triangular shaped 4" above medial 5" lateral 6’
            forming a cavity fracturing a bone spanding ribs and puncturing
            the lungs, aorta, heart and surrounding structure exit;
     (iii) One injury on the back by the X ride of the vertible columns 2"
           above the waist 1/2" x 1/2"with lacerated margins;
     (iv) One incised wound on the left side on neck 2" x 1/4" x muscle
          deep;
     (v)    One incised wound on the face by the right side of the nose
            1/2" x 1/6";
     (vi) One incised wound on left iliac crest 1 and 1/2" x 1/4" x skin
          deep.
     Out of these, injury nos. 1 and 2 were of firearms and other injuries
     except injury no. 3 were incised. Injury No. 3 was a lacerated wound
     on the left side of the vertical column above neck. As opined, the
     cause of death was due to injury no. 1 and 2 leading to massive intra
     thorax hemorrhage and shock. After completion of investigation, the
     charge-sheet was filed, and the case was committed to the Court
     of Sessions for trial.
5.   The charges for offence under Section 302/34 of IPC read with
     Section 27 of the Arms Act were framed. The accused persons
     abjured the guilt and demanded trial taking defence of false implication
     because of previous enmity and pending litigation. The prosecution
     examined Shankar Ghosh (PW–2), Megh Nath Ghosh (PW–5) and
     Janmejay Ghosh (PW–8) as eyewitnesses. The prosecution further
     examined Manjur Rahman (PW–4), Mahadev Ghosh (PW–6), Saidul
     Rahman (PW–9) as chance witnesses. On due appreciation of
     material placed on record, the trial Court was of the opinion that in
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     the facts of the case, testimonies of the witnesses cannot be believed
     and moreover, material contradictions qua injuries and the weapon
     possessed by the accused persons are there. Neither the recovery
     of the weapon has been made out, nor any ballistic or scientific
     evidence connecting overt act of the accused persons is on record.
     The trial Court also found that the conduct of the eyewitnesses is
     absolutely doubtful as none of them intimated the police about the
     incident that took place at about 4 p.m. on 08.07.1989. PW–11
     stated that he got intimation about the occurrence over phone by
     someone, however, no clear proof has come in this regard in the
     testimony. In such situation, the trial Court was of the opinion that
     the testimonies of eyewitnesses or chance witnesses are not worthy
     to be relied upon for proving the guilt of the accused persons,in
     particular looking to the previous enmity and the litigation pending
     between deceased and co-accused Gaya Nath Ghosh. As such, all
     the accused persons were acquitted from the charges because the
     prosecution failed to prove the case against them.
6.   On filing appeal before the High Court, it was partly allowed qua Nimai
     Ghosh, Sonachand Ghosh and Sambal Ghosh. The High Court by
     the impugned judgment convicted all the appellants for the charges
     under Sections 302/34 of IPC and further convicted accused Nimai
     Ghosh and Sonachand Ghosh for charge under Section 27 of the
     Arms Act, inter-alia observing that the defence to disprove the charge
     cannot be believed when the testimonies of the eyewitnesses are
     consistent with respect to the incident, corroborated by the statements
     of chance witnesses. The High Court, believing the testimonies of
     those witnesses, set-aside the judgment of acquittal of trial Court
     so far as the appellants are concerned,noting that active role of the
     appellants in commission of offence by shooting from the firearm
     namely pistol and other weapon, i.e., knife has been specifically
     proved and corroborated by medical evidence. Challenging the
     said findings as recorded by the High Court, the appellants have
     preferred this appeal.
7.   Mr. Jayesh Gaurav, learned counsel appearing on behalf of appellants
     submits that the incident took place on 8th July 1989, at around 4
     p.m. in an open place where the deceased accompanying his son,
     maternal nephew and paternal nephew were going towards village
     Pakur on bicycles. The other three persons were following the
     deceased from behind. It is surprising that at the first instance, when
[2025] 1 S.C.R.                                                      1939

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


     only two persons came at the place of the incident who dragged off
     the deceased, the alleged eyewitness who were deceased’s own
     son and close relatives were not in a position to stop two persons
     and save the deceased. The other four accused persons later came
     from another direction. Therefore, the testimonies of those witnesses
     were not worthy to be relied upon for conviction of accused persons,
     in particular when there has been no recovery of the weapon from
     them. It is also not on record that the weapon (pistol) allegedly used
     by two accused persons, namely, Nimai Ghosh and Sonachand Ghosh
     was the same and the third accused Sambal Ghosh used knife. In
     absence of recovery of those weapons, the incident itself is doubtful,
     and the charges as alleged under Section 27 of the Arms Act cannot
     be proved. It is further contended that in absence of recovery, no
     scientific/ballistic investigation has been carried out and trial Court
     in such absence has rightly disbelieved the testimonies of those
     witnesses and recorded the finding that in absence of recovery of
     weapon and ballistic report,recovered empty bullet cover cannot be
     connected with the incident and the guilt of the appellants cannot be
     proved, in particular, when there is a previous enmity and litigation
     pending between them. It is said that the High Court committed grave
     error in setting aside those findings without any plausible reasons
     and grounds, therefore, the judgment of conviction by the High Court
     deserves to be set-aside.
8.   Per contra, learned counsel Mr. Sujeet Kumar Chaubey representing
     the State has strenuously argued in support of the findings of the High
     Court, inter-alia 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
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     was shot by firearm from the backside 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: -
            “7. On his own showing PW 3 was an employee of the
            deceased. He was present, according to his testimony,
            when the deceased was assaulted by the appellants. He
            admits that after committing the crime the appellants and
            their associates fled away. The witness, however, not
            only did not raise any alarm when his master was being
            assaulted, he did not go near his employer even after the
            assailants had fled away to see the condition in which the


1   (1996) 5 SCC 369
[2025] 1 S.C.R.                                                              1941

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


            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:-
            “25. We also find that the High Court has accepted the
            statement of Feran Singh, PW 5 as the eyewitness of the
            incident ignoring the fact that his behaviour was unnatural
            as he claimed to have rushed to the village but had still not
            conveyed the information about the incident to his parents
            and others present there and had chosen to disappear for


2   (2010) 6 SCC 407
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            a couple of hours on the specious and unacceptable plea
            that he feared for his own safety.”
     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:-
            “22. Thus, the behaviour of the witnesses or their reactions
            would differ from situation to situation and individual to
            individual. Expectation of uniformity in the reaction of
            witnesses would be unrealistic but the court cannot be
            oblivious of the fact that even taking into account the
            unpredictability of human conduct and lack of uniformity in
            human reaction, whether in the circumstances of the case,
            the behaviour is acceptably natural allowing the variations.
            If the behaviour is absolutely unnatural, the testimony of
            the witness may not deserve credence and acceptance.
            23. In the case at hand, PW 9 was given a threat when
            her mother was forcibly taken away but she had the
            courage to walk in the night to her grandmother who was
            in her mid-fifties. After coming to know about the incident,
            it defies commonsense that the mother would not tell her
            other daughter and the son-in-law about the kidnapping
            of the deceased by her mother-in-law. It is interesting
            to note that the High Court has ascribed the reason
            that PW 7 possibly wanted to save the reputation of the
            deceased daughter and that is why she did not inform the
            other daughter and son-in-law. That apart, the fear factor
            has also been taken into consideration. Definitely, there


3   (2013) 5 SCC 705 – 07.05.2013
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       Nimai Ghosh & Ors. v. The State of Bihar (Now Jharkhand)


            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:-
            “26. From the aforesaid pronouncements, it is vivid that
            witnesses to certain crimes may run away from the scene
            and may also leave the place due to fear and if there is
            any delay in their examination, the testimony should not
            be discarded. That apart, a court has to keep in mind


4   (2013) 6 SCC 417 – 14.12.2012
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        that different witnesses react differently under different
        situations. Some witnesses get a shock, some become
        perplexed, some start wailing and some run away from the
        scene and yet some who have the courage and conviction
        come forward either to lodge an FIR or get themselves
        examined immediately. Thus, it differs from individuals to
        individuals. There cannot be uniformity in human reaction.
        While the said principle has to be kept in mind, it is also
        to be borne in mind that if the conduct of the witness is
        so unnatural and is not in accord with acceptable human
        behaviour allowing variations, then his testimony becomes
        questionable and is likely to be discarded.
        27. Keeping in mind the aforesaid, we shall proceed to
        scrutinise the evidence of PW 2. As is evincible from his
        deposition, on seeing the assault he got scared, ran away
        from the hotel and hid himself behind the pipes till early
        morning. He went home, changed his 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
[2025] 1 S.C.R.                                                            1945

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


            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


5   (2020) 19 SCC 165
1946                                                     [2025] 1 S.C.R.

                      Supreme Court Reports


    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: -
        “20. The assailants were only armed with hockey sticks and
        a knife and not with any firearms. It seems very unnatural
        that two brothers present on the spot will not even make
        slightest attempt to intervene and try to save the other
        brother being assaulted, merely on the threat extended by
        the assailants armed with hockey sticks and a knife. This
        unnatural conduct totally against natural human behaviour
        casts a serious doubt of shadow on the presence of
        eyewitness on the spot at the time of occurrence. Moreover,
        the facts stated by PW 1 Parminder Singh in this regard,
        as already discussed above, have not been corroborated
        by the other brother Amar Singh PW 11.
        21. The other unnatural conduct of two brothers PW 1 and
        PW 11 just after the incident again makes their presence
        on the spot extremely doubtful. There was a medical clinic
        of Doctor Bhardwaj just nearby the place of incident and
        the first endeavour of the two brothers would have been
        to take injured brother to the clinic for immediate medical
        aid or try and get some medical aid 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
[2025] 1 S.C.R.                                                           1947

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


           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.”
1948                                                        [2025] 1 S.C.R.

                          Supreme Court Reports


     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:-
            “13. Further, PW 3's credit stands impeached in the cross-
            examination part of his testimony. The witness is an adult,
            mature and worldly wise. He is aged 24 years and runs
            a grocery shop. He is not illiterate, yet he chose to not
            take any action, even to save the life of his friend. His
            explanation that he went home and slept is uninspiring
            in confidence for the incident took place in his presence
            and in close proximity of habitation, more specifically at
            a short distance i.e. just 3-4 minutes of walking distance
            from the Police Headquarters where constables are posted
            round the clock. He left his friend profusely bleeding on
            the spot but did not seek any help and immediately did not
            report the incident to the family members of the deceased
            whose house he visited only the following day at around
            8.00-9.00 a.m. His conduct of going off to sleep, having
            seen his friend being murdered right before his eyes and
            then not visiting the hospital forthwith is quite unnatural.
            Also he did not inform the incident to his parents. It was
            only when the police interrogated him that he named the
            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.”


6   (2023) 18 SCC 783
[2025] 1 S.C.R.                                                        1949

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


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
1950                                                         [2025] 1 S.C.R.

                         Supreme Court Reports


     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
[2025] 1 S.C.R.                                                      1951

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


     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
1952                                                        [2025] 1 S.C.R.

                            Supreme Court Reports


     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 set-
    aside. 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.

     Result of the case: Appeal allowed.




     †
         Headnotes prepared by: Ankit Gyan