IMPORTANT POINT
In a case of murder of two young boys, while granting benefit of doubt to the accused, the court observed that they are not unaware of the degree of agony and frustration that may be caused to the society in general and the families of the victims in particular, by the fact that a heinous crime like this goes unpunished, while stating that the law does not permit the courts to punish the accused on the basis of moral conviction or on suspicion alone.

Headnote:Indian Penal Code, 1860-Sections 120-B, 302 rw/s 34, 201 rw/s 34-Murders of two young boys, aged 16-17 years-Circumstantial evidence -Prosecution case that 5 accused persons assaulted deceased and physically threw both of them over the Howrah Bridge-Explanation of prosecution as to non availability of an independent witness contradictory as there were hundreds of pedestrians and vehicular traffic-There were many police personnel also present on the bridge-Doubt about place of occurrence-Evidence of PWs found not creditworthy hence not safe to be relied upon-Circumstances relied on by the prosecution in this case are neither fully established nor are consistent with hypothesis of guilt of accused-Appellants are entitled to benefit of reasonable doubt-Appellants acquitted of charges framed against them.
       Held : Before we conclude, we must place on record the fact that we are not unaware of the degree of agony and frustration that may be caused to the society in general and the families of the victims in particular, by the fact that a heinous crime like this goes unpunished, but then the law does not permit the courts to punish the accused on the basis of moral conviction or on suspicion alone. The burden of proof in a criminal trial never shifts, and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence. (Para 27)
       We are also aware that this Court does not disturb the concurrent findings of the courts below if the same are based on legal evidence merely because another view is possible. Thus, keeping in mind the caution expressed by Baron Alderson (supra) as also the need to respect the concurrent findings of two courts below, we have assessed the evidence in this case very carefully, but in spite of the same we are unable to concur with the findings of the courts below. In our opinion, both the courts below have departed from the rule of prudence while appreciating the evidence led by the prosecution. (Para 29)
       In our opinion the circumstances relied on by the prosecution in this case are neither fully established nor are consistent with the hypothesis of the guilt of the accused. These circumstances do not exclude the hypothesis of innocence of the accused, therefore, the appellants are entitled to the benefit of reasonable doubt. Accordingly, we allow these appeals, set aside the judgments of the courts below and acquit the appellants of the charges framed against them. (Para 31)

JUDGMENT

Santosh Hegde, J.-The appellants in these appeals and one Deepak Rajak were tried in S.T. Case No. V(4) of 1999 by the Additional District and Sessions Judge for offences punishable under Section 120-B, 302 read with Section 34 IPC and Section 201 read with Section 34 IPC. Learned Sessions Judge as per his judgment dated 29.3.2000 while acquitting Deepak Rajak convicted the other accused under Section 302 read with Section 34 IPC, and sentenced them to undergo imprisonment for life with a fine of Rs. 2,000; in default to undergo further RI for one year. He did not award separate sentences for offences punishable under Section 120-B and 201 read with 34 though he found them guilty of the said offences also. The appellants herein preferred appeals before the High Court at Calcutta while State preferred a separate appeal against the acquittal of Deepak Rajak. A Division Bench of the High Court as per its judgment dated 24-5-2001 dismissed the appeal of the appellants while it allowed the State appeal, and convicted Deepak Rajak also, for offences for which these appellants were sentenced.

2. Against the said judgment of the High Court the appellants have preferred the abovenoted criminal appeals. Deepak Rajak who was convicted by the judgment of the High Court did prefer an SLP before this Court but since he did not surrender, as required under the Supreme Court Rules, his appeals came to be dismissed for default. Therefore it is only accused Nos. 1, 2, 4 and 5 who are before us in these appeals.

3. Brief facts necessary for disposal of these appeals are as follow:

One of the deceased Pritam Chakraborty who was aged about 16-17 years was a student of Vevekananda Institution, Howrah. He was staying with his widowed mother Purnima Chakraborty (PW-6) at Mouza 5/2/1, Katapukur 3rd bylane. Kadamtala, Howrah. The second deceased Rudra Pauri who was of the same age as Pritam, was his classmate and a good friend. He was residing with his father Uttam Kumar Parui (PW-9) at Mouza 62, Tantipara Lane, P.S. Shibpur, Distt. Howrah. Apart from going to school together, they also used to go for tutorial classes together in the evening. It is the prosecution case that deceased Pritam was having a love affair with one Reshma Gupta. It is stated that A-1 Mousam Singha Roy was also in love with said Reshma. Because of this twist of love triangle, the prosecution alleges that said accused Mousam was jealous or angry with deceased Pritam. It is because of this on 1-12-1998 appellant Mousam allegedly made a telephone call to Pritam at the residence of latter s maternal uncle Sibananda Bhattacharjee (PW-1) with whom Pritam and his mother PW-6 were residing. The telephone call in question was received by PW-1 at about 8 a.m. and the caller identified himself as Mousam, a friend of Pritam who desired to speak to Pritam. Thereupon PW-1 called Pritam and handed over the phone to him. During the conversation on the telephone, PW-1 found Pritam perturbed and shaky therefore after the conversation PW-1 asked Pritam what the matter was. Though Pritam did not say anything in the beginning, on being rebuked by PW-1, he replied that Mousam had asked him to come to Howrah Bridge later in the night for which PW-1 told him not to go there as desired by Mousam. Pritam then replied that since his friend Rudra (the other deceased) was going to accompany him there need be no apprehension. It is the further case of prosecution that in the evening Pritam did not come back to his house from the tutorial class even by about 8.45 p.m. which was the normal time for him to return home after the tutorial class so his mother PW-6 told PW-1 about the non-arrival of Pritam. PW-1 comforted his sister by saying that Pritam might have gone for xeroxing some of his papers. PW-1 waited till about 9.30 p.m., then went in search of Pritam to the tutorial school and on the way he met the father of Rudra, Uttam Kumar Parui (PW-9), and some others. They told PW-1 that even Rudra had no

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2003 Supreme(SC) 781

Cases Referred (2)