CENTRAL BUREAU OF INVESTIGATION versus SHYAM BIHARI & OTHERS

Citation: [2023] 10 S.C.R. 464 · Decided: 17-07-2023 · Supreme Court of India · Bench: B.V. NAGARATHNA · Disposal: Dismissed

Judgment (excerpt)

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SUPREME COURT REPORTS
[2023] 10 S.C.R.
464
CENTRAL BUREAU OF INVESTIGATION
v.
SHYAM BIHARI & OTHERS
(Criminal Appeal No. 413 of 2013)
JULY 17, 2023
[B. V. NAGARATHNA AND MANOJ MISRA, JJ. ]
Penal Code,1860 – ss. 302 and 34 – Murder case – Acquittal
of three policeman – Correctness of – Prosecution case that
prosecution witnesses traveling with the victim, though on a separate
scooter, at night in the light of the scooter saw three policemen on
the road armed with weapons – Policemen fired at them, hitting the
victim who succumbed to the injuries and the prosecution witnesses
managed to escape – Policemen charged of murder while patrolling
u/s. 302/34 – However, acquittal by the trial court – Appeal
thereagainst, u/s. 378(3) – Dismissed by the High Court – On appeal,
held: Though judgment of the High Court is a cryptic one but that
by itself need not be a ground to set aside the order – There are
relevant record to assess the merit of the prosecution case – Incident
arose in the year 1987 and the appeal remained pending – Neither
of the prosecution witness could identify any of the three accused –
They did not depose that the three policemen involved in the crime
were those who were facing trial – Trial court justified in discarding
the testimony of the eye-witness – Also no reliable evidence that the
exchange of fire was with a view to kill – Moreover, the victim died
from a .12 bore gunshot which could not be ascribed to rifles issued
to the policemen – Circumstances ought to have formed a chain so
far complete as to indicate that in all human probability it were the
persons facing trial and none else who committed the crime –
However, the circumstances found proved do not constitute a
complete chain – Thus, not a fit case to interfere with the order
passed by the High Court – Code of Criminal Procedure, 1973 – s.
378(3).
Code of Criminal Procedure, 1973: s. 378(3) – Appeal against
acquittal – Power of the appellate court – Explained.
Dismissing the appeal, the Court
HELD: 1.1 No doubt the judgment and order of the High
Court appears a bit cryptic but that by itself need not be a ground
[2023] 10 S.C.R. 464 : 2023 INSC 623
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to set aside the order and remit the matter to the High Court,
particularly, when there are relevant record to assess the merit
of the prosecution case. More so, because the incident is of the
year 1987 and the appeal has remained pending since more than
a decade. In such circumstances, if the matter is remitted to the
High Court only to rewrite the judgment, it would be travesty of
justice. Consequently, as the trial court has dealt with the matter
at great length and has discussed each and every piece of evidence
on which the prosecution seeks to rely, it would be apposite to
assess whether, by not granting leave to appeal against the
judgment of the trial court, there has been a miscarriage of justice.
[Para 26][474-H; 475-A-C]
1.2 In an appeal against acquittal, the power of the appellate
court to re-appreciate evidence and come to its own conclusion
is not circumscribed by any limitation. But it is equally settled
that the appellate court must not interfere with an order of acquittal
merely because a contrary view is permissible, particularly, where
the view taken by the trial court is a plausible view based on
proper appreciation of evidence and is not vitiated by ignorance/
misreading of relevant evidence on record. [Para 27][475-C-D]
1.3 In the instant case, the prosecution case rested on ocular
account as well as on certain circumstances. The ocular account
is provided by PW-3, PW-6 and PW-15. PW-3 and PW-6 were
traveling with the deceased, though on a separate scooter. They,
therefore, had the opportunity to witness the incident. According
to them, while they were traveling on their respective scooters,
torch light was flashed at them by men in police uniform. As a
result, deceased’s scooter skidded. Thereafter, when gun shots
were fired they escaped and came to the village. On information,
a large number of persons from the village arrived at the spot.
Neither PW3 nor PW6 could identify any of the three accused.
They did not depose that the three policemen involved in the
crime were those who were facing trial. Thus, there is no infirmity,
much less perversity, in the view taken by the trial court that the
testimony of PW-3 and PW-6 is not of much help to the prosecution
qua the three accused facing trial. [Para 28][475-E-G]
1.4 With regard to the 

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