CENTRAL BUREAU OF INVESTIGATION (CBI) v. SHYAM BIHARI (2023) 8 SCC 197 

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FACTS OF THE CASE

Three person namely Raj Kumar Baliyan (deceased), Pramod Kumar Tyagi and Sudeep were traveling from Muzaffarnagar to Meerapur to attend a marriage, where Sudeep and Pramod were on one scooter meanwhile Raj Kumar on another scooter. On the road they saw three policemen standing, one of them had a danda (stick) in his hand and another carrying rifles. The person who had danda with him flashed a torchlight toward the three people resulting in the lost control of their respective scooters, which skidded and fell. One the policemen in hustle and tackle exhorted to shoot to kill. As a result, the deceased died, Sudeep and Pramod somehow managed to escape to a village. In the presence of the policemen only, the deceased was rushed to the hospital but he succumbed to his injuries on the way. Pramod Kumar Tyagi has lodged the FIR.

Another version of the incident came to the knowledge of the police by one Mahindra Singh on 25.06.1987 alleging a Robbery took place in the Village wherein a person died. It was alleged therein that while the police constables were patrolling the village from the gangsters. A man came and raised an alarm that 5-6 criminals eree about to come with the intend to do robbery in the village. Two scooters came at a high speed and when the torchlight flashed toward the men in the scooter, they fired a shot with the intent to kill the villagers and the policemen. However, one of them skidded and the other one stopped. To retaliate the policemen fired shots which eventually killed the deceased. Firstly, the investigations of the aforesaid case was assigned to CB-CID and then for further investigation to CBI. After the investigation was made the CBI submitted a charge sheet against the accused i.e. the policemen under section 302 with sec.34 of IPC. The court of additional session judge charged the policemen guilty for committing the offence.. The accused pleaded not guilty.

ISSUE RAISED: 

Before the  supreme court of India the issue raised were: 

1. Whether the circumstantial evidence has formed a chain to connect the facts and prove the offence?
2. Whether the judgement of the High court is of plausible view and not a miscarriage of justice? 

ARGUMENTS:

The prosecution argued that on the date and time of the incident, the three accused were present at the place of incident as per the General diary (GD) entries. The ballistic expert report confirmed that some of the empty cartridges which were recovered from the spot were fired from the same rifles which were issued to the policemen. The witnesses Sudeep and Pramod also proved that the accused were the one who killed the deceased.

The respondent argued that the witnesses Sudeep and Pramod were not able to clearly state that the policemen facing the trail were the same who had killed the deceased. The few empty cartridges found at the place of incident were merely circumstantial evidence because the four cartridges were of 0.303 and the murder weapon was of 0.12  bore weapon. 

JUDGEMENT:

The Trial court after analysing all the evidences and facts, concluded that the prosecution had failed to prove that the accused i.e. the policemen were the person who had committed the offence. The state filed appeal in the high court, and the court observed that the whole case of the prosecution rests upon the three witnesses. The three witnesses were not found reliable. Also the medical evidences indicated that the deceased died with a bullet of 0.12 bore weapon and not from the service rifles that were alloted to the policemen. Hence, the high court acquitted the accused.

The supreme court of India observed that without any doubt the order and judgement of the High court seems to be a bit cryptic but that itself doesn’t proved a ground to set aside the order. Moreover, this particular case is a matter of year 1987 and the appeal is pending for over a decade. In such circumstances, if this court of appeal remit the matter to the high court only to rewrite the judgement, it would be a miscarriage of justice. It is trite law that if an appeal is against acquittal then the power of the appellate court to re appreciate evidence and come to it’s own conclusion is not circumscribed by any limitation. But the appellate court must not interfere with an order of acquittal passed by the High court unless there is a travesty of justice.

Here, the two ocular witnesses were travelling with the deceased on a seperate scooter whereby, the policemen flashed a torchlight which resulted into skidding of the scooter and gunshot was fired which caused the death of the deceased. Adverting to the proven circumstances, the witnesses stated that there was a police action on that night. Assuming that it’s true there existed an exchange of fire between the members in uniforms and ordinary people, but there is no reliable evidence that the exchange of fire was with a view to kill. Moreover, the deceased died with a bullet shot by the weapon of 0.12 bore and not from the service rifles, though the cartridge shells were present on the spot but it doesn’t prove that the accused were the one to kill the deceased because the murder weapon was different. The supreme court further said and questioned the prosecution that why would the policemen kill the deceased with a different gun i.e. a country made pistol and not the service rifles, if they actually intended to kill the deceased.

The circumstances that the accused persons were required to patrol that area and had left the police station, it may be possible that the policemen were present at the place of the incident. According to the testimony of the witnesses of the village, the policemen were present when the ambulance arrived and the deceased was taken up to the hospital. If they actually had the Mens Rea to kill the deceased then why wouldn’t they run away. Thus, on the basis of the cirumstances and facts, it can not be duly proved that the offence was commited by the accused in all human probability without leaving any doubt of reason of a prudent man, and no one else. Here, the circumstances failed to form a chain of action to prove the above charges.

For all the reasons, the supreme court concluded that the reason and judgement of the High court is of plausible view and leaving no doubt behind that the offence was commited by the accused. Thus, this court refused to interfere with order and Judgement of acquittal passed by the High court. The appeal is Dismissed.

REFERENCE:

https://www.scconline.com/DocumentLink/9GENnKbb

https://indiankanoon.org/doc/177350563/

The above article is written by Deepanshi Srivastava from shambhunath institute of law, a legal intern at legal Vidhiya. 

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