U.P. Vs. Ram Sajivan & Ors.  INSC 1785 (4 December 2009)
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.686
OF 2002 State of U.P. .. Appellant Versus Ram Sajivan & Others ..
Unfortunately, the centuries old Indian Caste System still takes
its toll from time to time. This case unfolds the worst kind of atrocities
committed by the so called upper- caste (Kshatriya or Thakur) against the so
called lower-caste -Harijan caste in a civilized country. It is absolutely
imperative to abolish the caste system as expeditiously as possible for the
smooth functioning of Rule of Law and Democracy in our country.
In the instant case, the accused persons belonging to Thakur caste
literally butchered seven totally innocent persons belonging to the Harijan
caste and to wipe out the entire evidence of their atrocities, after shooting
they were thrown in the river Ganges where currents were very strong.
seven, even the bodies of five persons could not be recovered.
This appeal emanates from the judgment and order dated 10.01.2001
delivered by the High Court of judicature at Allahabad in Criminal Appeal No.
1715 of 1982. By this impugned judgment, all the 18 accused who were convicted
and sentenced to life imprisonment by the trial court have been subsequently
acquitted by the High Court.
The learned Additional Sessions Judge, Fatehpur, in an elaborate,
exhaustive and well considered judgment, sentenced the 18 accused persons under
section 302 read with section 149 IPC for committing the murder of Jasodiya,
Ganga, Tulsi, Deo Nath alias Madan, Din Dayal, Sukhlal and Shripal. Accused
persons were further sentenced to undergo seven years rigorous imprisonment on
each counts for 3 committing the dacoities. The accused persons were also
sentenced to undergo five years of rigorous imprisonment under section 364 IPC
for abduction of Kallu, Jasodiya, Ganga, Tulsi, Deo Nath, Din Dayal, Sukhpal
and Shripal. All the accused persons were also sentenced to undergo four years
rigorous imprisonment under section 201 IPC for elimination of evidence of
murder by throwing the dead bodies of the seven persons in the river Ganga. All
the sentences awarded to the accused persons on all counts were directed to run
In appeal, the High Court acquitted all the eighteen accused. The
appellant, State of U.P. has preferred this appeal against the impugned
judgment of the High Court acquitting all the accused persons.
Brief facts necessary to dispose of this appeal are recapitulated
as under:- On the intervening night of 9/10.9.1979 in the village Lohari,
Police station Hussainganj, U.P. 20-22 accused persons committed dacoities in
the Harijan locality by breaking open the doors of the main gate of the house
of 4 Jasodiya and Kallu P.W.14. They looted the house.
Kallu, Jasodiya, Din Dayal, Sukhlal, Shripal, Tulsi, Ganga Ram, Deo Nath alias
Madan were tied with rope and were taken to the bank of the river Ganges,
pushed in the boats and brutally murdered and thereafter all of them were
thrown in the river Ganges, at a point where there were strong currents. Out of
seven, five dead bodies could not be retrieved. Kallu P.W.14 jumped into the
stream of the river Ganges and saved his life. Jasodiya, wife of Kallu was
recovered from the river Ganges in an injured and unconscious state and after
she regained consciousness, she got a written report Ex. KA.1 scribed by the
witness Shyam Lal P.W.4 and the report was lodged at the police station
Hathgaon of the District, U.P.. The statement of Jasodiya recorded under
section 161 Cr.P.C. was recorded by the Investigating Officer, the extract of
which is Ex. KA.25. The dying declaration Ex. KA.6 of Jasodiya was recorded by
Dr. C. M. Mittal, Medical Officer at midnight on 10.9.1979. She narrated that
on the previous night i.e. 09.09.1979 at about 11 p.m. about 20-22 persons came
to her house. They forced their entry inside the house by cutting open the door
shutters 5 of the house and looted the property. The accused persons caught
hold of her and her husband Kallu, Tulsi, Madan, Ganga Ram, Din Dayal, Sukhlal
and Shripal sons of Din Dayal were also tied by a rope. The accused had
pretended to be the Police officials of the District Rai Bareilly who had come
to arrest persons in connection with some dacoity which took place in Rai
The accused persons had taken eight persons after tying them by a
rope to the village Maheva on the bank of river Ganges. These abducted persons
from that point were taken by two boats towards the east. These two boats were
being rowed by two boys belonging to the village Mahewa. Jasodiya did not
mention their names. After they covered some distance on boats towards the east
they were forced to disembark from the boats. Jasodiya started weeping and
crying and her husband Kallu, who was also terribly frightened managed to jump
into the stream of the river Ganges and swam to safety. Jasodiya, who continued
to cry and weep, was attacked by the accused with knives and she was shot at by
firing from gun and she was thrown in the river Ganges. Jasodiya was taken by
the swift current of the river 6 Ganges to village Jafrabad where she was
spotted by two persons who took her out of the river Ganges. She expressed her
apprehension about the killing of the remaining abducted persons by the said
accused who were pretending to be the police personnel. This report Ex. KA.1
was sent to the Station Officer of the Police Station Hussainganj for investigation
and necessary action. Similar story was narrated by Jasodiya to the
Investigating Officer Devi Dayal Dixit, as would appear from the extract Ex. KA
25 and also in the dying declaration Ex. KA.6.
Two persons spotted Jasodiya when she reached near the bank of the
river in village Jafrabad. They reached at the bank of the river, took her out
and put her on a small cot and she was warmed by fire under a Mahuwa tree.
Thereafter, she was taken for medical examination of her injuries at the Public
Health Centre (for short, PHC) Hathgaon, where Dr. C. M. Mittal examined the
injuries of Jasodiya. She was taken there by Chet Ram 149 C.P. and Rais Ahmad
454 C.P. of the Police Station Hathgaon who had identified Jasodiya before Dr.
C. M. Mittal. The examination took place at 10.30 pm on 10.9.1979. Dr. Mittal
assessed the age of Jasodiya around 50 7 years and he found the following
injuries on the person of Jasodiya:
Two incised wounds of =" x 1/8", depth not measured, other wound
=" x 1/8" x depth not measured, which are on the left side neck
2" below from the left mastoid process. The wounds are paralleled and one
inch distance between two wounds. Bleeding not there. Margins were clear cut
and well defined.
2. A gun
shot wound entry of =" x =" x muscle deep size on the lower abdomen 3
=" below the umbilicus.
shot wound of entry =" x =" x muscle deep size on the outer aspect of
right thigh 3="
right anterior superior iliac spine. No bleeding.
No. (1) kept under observation caused by some sharp weapon. Rest injuries
caused by fire arm weapon. Referred to District Hospital, Fatehpur for
treatment and advised X-ray of all the affected parts. Duration about one day
Mittal prepared injury report Ex KA.5 and according to his statement these
injuries could be caused in the night between 9/10.9.1979 at any time after 11
PM. Dr. Mittal also recorded the dying declaration of Smt. Jasodiya in the same
night at about mid night. The dying declaration is Ex. KA.6."
Jasodiya succumbed to the injuries and died on 11.9.1979. Bhim
Singh conducted inquest proceedings in respect of the dead body of Jasodiya. He
prepared inquest 8 report Ex. KA.17, Photo Nash Ex. KA.18, Challan Nash Ex. KA.19,
Report for post-mortem examination Ex. KA.20 and report for sending clothes
etc. removed from the dead body of Jasodiya Ex. KA.21.
The post-mortem of Jasodiya was conducted by Dr. S.K. Tandon,
P.W.6, Medical Officer working at the District Hospital, Fatehpur on 12.9.1979
at 2 p.m. Dr. Tandon found the following ante-mortem injuries on the dead body:
One gun shot wound of entry =" x =" x bone deep on the anterior
lateral surface of upper third of right thigh. Margins lacerated. Blackening
and tattooing present.
gun shot wound of exit =" x =" x muscle deep on the leluic region
4" below umbilicus.
everted and lacerated. No blackening present.
No. (1) and (2) are interconnected with each other. There is laceration of
right femual vessel under injury No. 1. No Gun shot recovered from the body
after extensive search. Direction right to left and upward.
Contusion 4" x 1" right side back.
Abrasion =" x =" x on ankle region.
Incised wound 1" x =" muscle deep on left side neck 1 =" below
the left ear. Margins everted and clean out.
Incised wound 1" x =" x muscle deep, left side of neck.
internal examination heart was found empty and the stomach was also found
was caused due to shock and haemorrhage due to ante-mortem injuries. The
ante-mortem injuries were quite sufficient in the ordinary course of nature to
cause the death. He had taken off a Dhoti, One keel of nose, ring, 17 Chooriyan
(bangles), 6 Bachchey, two ear-rings and sealed them and gave them to Constable
Rais Ahmad for being taken to the police station."
The dead body of Shripal, S/o Din Dayal was recovered from the
river Ganges and its inquest was conducted by Bhim Singh, Sub-Inspector posted
at the Police Station Hathgaon.
appointing Panchas, Sub-Inspector Bhim Singh inspected the dead body of Shripal
and prepared the inquest report. Dr. P. Joshi, P.W.7 who was working as the
Medical Officer, District Hospital, Fatehpur, conducted the post- mortem on the
dead body of Shripal and found the following injuries:
One gunshot wound of entrance 1" x 1" x abdominal cavity deep at 11
O' clock position 1 ="
from umblicus loop of bowes protruding out of the wound. Margins lacerated and
and tattooing present.
2. One gunshot
wound of entrance 1" x 1" x chest cavity deep on the left side of
chest 3 O'clock 10 position, 1 =" apart from left nipple. Margins
lacerated, inverted. Blackening and tattooing present.
3. One gunshot
wound of entrance 1" x 1" x chest cavity deep on right side back
upper third part scapular region. Margins lacerated.
and tattooing present.
Multiple gunshot wound of entrance on the left side of chest and abdomen
1/8" x 1.8" x muscle cavity deep in an area of 5" x 7" x
10" downwards from left anterior axillary fold. Margins lacerated and
everted. Blackening and tattooing absent."
internal examination, Dr. Joshi found fracture of 4th rib from side and 11th
and 12th ribs on side.
of scapula right side. Right and left lungs were found lacerated and perforated
blood was found in the lungs in substance.
pleural cavity contained 1 LB and 10Z. blood.
cavity contains blood mixed with digested food one pound ounce clotted blood
was found normal and its contents were digested food measuring 4 0z. with
gasses. Small and large intestines were perforated throughout at places along
with mesenteric vessels. The liver was found lacerated in left lobe. Gall
bladder was found normal. Spleen was found perforated and left kidney was found
lacerated and perforated.
was caused due to shock and haemorrhage as a result of ante-mortem
The dead bodies of the remaining abducted persons viz. Madan,
Tulsi, Ganga, Sukhlal and Din Dayal could not be traced.
On 15.9.1979, the Investigating Officer recorded the statements of
Dashrath and other witnesses. The Investigating Officer arrested the accused
Udai Bhan Singh alias Lallan Singh on 22.9.1979. On 23.9.1979, the
Investigating Officer raided the houses of the other accused persons but they
were not traceable. On that very day, he recorded the statements of witnesses
Suraj Prasad, Lalta Prasad, Budhuwa, Tejram Prem Shankar and Uma Shanker.
On 24.9.1979, the Investigating Officer arrested the accused
Virendra Singh and recorded his statement. On 28.9.1979, the Investigating
Officer recorded the statements of witnesses Jagat Narain, Bhagwat and Sumer.
On 1.10.1979 accused Lavkush was arrested. On 3.10.1979 accused Man Singh and
Chaturbhuj Singh were arrested. On 7.10.1979 accused Faiyaz was arrested.
Accused Dhirendra Singh, Ganga Din, Banwari and Cheddu alias Virendra Singh surrendered
in court on 7.10.1979 and they were sent to jail.
On 11.10.1979, the Investigating Officer recorded the statement of
witness Rai Dutt. On that very day, accused Suraj Bali Singh surrendered
himself in court and was sent to 12 jail. On the next day, i.e. 12.10.1979
accused Ram Niwas Singh alias Chhaila Singh and Mathura Singh alias Vijai
Bahadur Singh surrendered themselves in court and were sent to jail. On
13.10.1979 accused Vijai Karan Singh surrendered himself in court and was sent
to jail. The Investigating Officer recorded the statements of witnesses Barati
Lal and Nanku on 20.10.1979. Accused Subhash Singh surrendered himself in court
on 29.10.1979 and he was also sent to jail. Accused Chunna surrendered himself
in court on 12.11.1979.
On 25.11.1979, the Investigating Officer filed a charge- sheet
against 15 persons, namely Mathura Singh, Ram Sajiwan, Udai Bhan Singh, Ram
Niwas Singh, Suraj Pal Singh, Banwari, Lavkush, Man Singh, Virendra Singh,
Dhirendra Singh, Tejpal Singh, Faiyaz, Munna, Vijai Karan Singh and Chandra
Bhan Singh. Thereafter on 7.12.1979, a second charge-sheet was filed by the
Investigating Officer against three accused, namely Cheddu Singh, Subhash Singh
and Ganga Din.
The Investigating Officer recorded the statement of the witness
Kallu P.W.14, s/o Sukkha on 7.12.1979. The evidence of this witness is
extremely significant in the entire case. Kallu P.W.14 is the only surviving
injured eye-witness who has given graphic description of the entire incident.
He narrated that he and his wife were in their house. Out of about 25 to 30
people, about seven people were in the police uniform and others in plain
clothes. He named 18 accused persons along with their villages. He stated that
the accused persons entered their house by breaking open the door. They caught
hold of him and his wife and also Ganga, Tulsi, Deo Nath, Din Dayal, Sukhlal
and Shripal. According to him, the accused were holding rifles, guns,
revolvers, axes etc. The accused had large sized lights and they were keeping
the lights on. They forcibly took them to the side of the river Ganges. They
were made to sit in two boats. The accused also sat on the boat and took them
between Surajpur and Naroli.
a dense forest on the side of the river. They got descended there. According to
Kallu P.W.14, the accused first killed his brother Deo Nath and then Shripal.
Thereafter, they killed Sukhlal, Ganga Ram and Tulsi. According to his 14
statement, they were standing on the said bank of the river.
to him, when his turn came, he took a somersault and jumped into the river
Ganges. Thereafter, according to him, his wife was also killed. He further
stated that he made a deep dip in the water and came out at some distance. At
that point the accused were showing lights at him. Then, he again made a dip
and thereafter he reached floating the sand in middle of the river Ganges in
the forest and continued lying there.
Kallu stated that thereafter, he went to the police station of
Dalmau where he was not heard and his statement was not recorded. Then he went
to the forest of Munna and spent the night lying there. Next day, he went
towards Lalganj and reached Rai Bareilly and from there, he went to Bijnore and
stayed there for some days. Thereafter, he went to Lucknow.
mentioned in his statement that he had no enmity with Mathura Singh. He further
stated that before this incident, a dacoity was committed at the place of
Mathura Singh in which brother of Mathura Singh, Raj Bahadur was killed.
In his cross-examination, he stated that he was brought by the
police from Punjab. He came to the village in police escort. In his statement,
he has stated that the accused persons used to come to the place of Mathura
Singh frequently and therefore, he knew and recognized them. He stated that he
had also sent a complaint of 50 typed papers to Smt. Indira Gandhi and Shri
Jagjivan Ram. Perhaps at the intervention of some senior leader, the police
investigated this matter. In his cross-examination, he has stated that in
Lucknow he met one M.L.A. at Darulshafa (M.L.A's Hostel).
met Shri Chhotey Lal, M.L.A. of District Hardoi. He also stated that Shri
Chhotey Lal advised him to hide in the forests to save his life and that when
it would be needed, they would locate him. He further stated that his statement
was recorded before the Magistrate. According to him, the night of the incident
was bright because it was a moonlit night. He also denied that he gave the
statement to the Magistrate under pressure.
The prosecution, apart from Kallu P.W.14, also examined the other
32 witnesses and a large number of documents to prove its case. We would not
like to burden the judgment by 16 naming all the prosecution witnesses. We will
deal with their statements as and when it becomes imperative. The statements of
the accused persons were recorded under section 313 of the Code of Criminal
Procedure. The accused denied their participation and suggested that they have
been falsely implicated because of enmity.
Most of the prosecution witnesses have turned hostile.
P.W.14 who was one of the victims of dacoity and abduction and whose death was
attempted by the accused persons, has fully supported the prosecution case.
Head Constable Kashi Prasad Tiwari P.W.27 has also supported the prosecution
case. He had seen accused Lallan Singh, Munna, Mathura Singh, Vijai Karan,
Chhaila Singh and Dhirendra Singh on 9.9.1979 at 6 p.m. at the road running
towards east of the police out-post Chheolaha. According to him accused Mathura
Singh and Vijai Karan Singh had rifles. He stated that he enquired from Lallan
Singh alias Udai Bhan Singh as to where they were going or whether they were
going to do some big job and then in reply accused Lallan Singh told him that
they were going to village Lohari.
Maharajiya P.W.3 had been treated as a hostile witness, though she
had corroborated the prosecution story to some extent. She is the wife of Din
Dayal who had been abducted and murdered in this occurrence. Her two sons Shripal
and Sukhlal have also been abducted and murdered. P.W.3 has supported the
prosecution case only to the extent that her husband Din Dayal and sons Sukhlal
and Shripal were taken away by the accused persons.
The other witness who has partly corroborated the prosecution
story, though he has also been treated as a hostile witness by the prosecution
and subject to cross- examination is Dashrath PW.28. He stated that about 1 =
years ago he was going to his village within police station Hussainganj from
Fatehpur and when he reached mile no. 7 at 6.30 p.m. he saw 5-6 persons sitting
on the bridge. Out of these 5-6 persons he recognized accused Mathura Singh,
resident of Lohari, Chandra, resident of Gaura, but he could not identify the
remaining persons. He stated that he heard these persons talking that they
would go to Lohari and kill the residents of Lohari and to throw away their
dead bodies in the river Ganges. He also stated that the father of Ram Prasad
of 18 Lohari be killed and his body be thrown in the Ganges. He has named
Dhirendra Singh Thakur, Man Singh Thakur and Vijai Karan Singh Thakur who were
armed with rifles.
In this case, the statement made by Jasodiya, another victim in
this occurrence, was treated as a dying declaration.
that on 09.09.1979 at 11 p.m. 20-22 persons armed with guns and rifles forced
their entry inside her house and caught hold of her and her husband Kallu. They
also caught hold of Ganga, Tulsi, Madan, Din Dayal and his two sons Shripal and
Sukhlal and all of them were tied with ropes and were made to go to jungle and
thereafter they were taken to the bank of the river Ganges. They crossed the
river on two boats and across the river those persons fired guns and rifles.
further narrated that immediately after her husband was untied, he jumped into
the river Ganges. She was also attacked and injured with knife and gun shots
and was thrown in the river Ganges. She apprehended that the other persons
namely Ganga, Tulsi, Madan Din Dayal and his two sons Shripal and Sukhlal would
have been killed and thrown in the river Ganges. She further stated that she
floated in the river and reached by the side of Jafrabad and she succeeded 19
in coming out of the river Ganges, when two persons saw her and took her on a cot
and brought under a Mahua tree and there she was warmed by the fire.
Dr. H.K. Tandon conducted the post-mortem examination on the dead
body of Jasodiya. According to him, her omission to mention the names of the
accused Mathura Singh and Ram Sajiwan in the dying declaration could be
attributed to the state of deep shock in which she was when she made the
The trial court has carefully examined the witnesses and also
appreciated the defence version as to why the testimony of Kallu P.W.14 should
not be believed. It was contended that his testimony could not be believed
because he was brought from Punjab in police escort. The trial court observed
that the evidence of Kallu P.W.14 was the only surviving witness of the
occurrence. The possibility of his being attacked and killed could not be ruled
out and it was imperative for the District Police Administration to provide
police escort to him so he could safely reach the court and back. It cannot be
inferred that P.W.14 had been tutored by the police to support 20 the
prosecution case because they provided police escort.
to the trial court, Kallu is the eye-witness to the occurrence and the only
surviving persons out of 8 persons who were abducted from village Lohari. The
trial court observed that there was absolutely no material elicited by the
defence in his cross-examination which may render his statement unbelievable.
Kallu P.W.14 clearly stated that he had no animus against the accused persons
and he could not say as to why the accused persons committed dacoities and
abducted and killed the persons named above in the occurrence. He had
recognized 18 accused persons. He stated that he knew Ram Sajiwan and Mathura
Singh because they belong to his village Lahori and also other accused persons
because they used to visit the house of Mathura Singh frequently. P.W.14 had
stated that it was a moonlit night and they were all having big lights with
them and all the accused had open faces and none of them had concealed or
covered their faces. In the instant case, accused persons were with Kallu PW14
for quite some time. Accused persons had tied Kallu and other seven persons
with rope and took them to the bank of river Ganga and put them in two boats
and they 21 were thrown in the river where currents were strong. There was
enough time to recognize the accused persons properly.
According to the trial court, the statement of Kallu P.W.14
regarding the occurrence appears to be a true version of the occurrence. The
relevant observation of the trial court is set out as under:
Kallu after escaping death went to Dalmau Police Station but he was not heard
went to Rae Bareilly and from there to Bijnore, Lucknow etc. During this period
he sent some applications to the various leaders of the country. The fact
remains that Kallu was quite shocked and frightened and he could not dare to
come to Fetehpur all alone. It cannot be said that Kallu had been tutored there
to implicate the accused persons in this occurrence."
court further observed that:
abduction of these persons is established it is for the accused to show as to
what happened to them and that they were alive and not dead. In the instant
case there is evidence of Kallu that these persons were murdered by the accused
and their companions and there is no evidence of these persons being alive.
Under these circumstances it is proved that these five persons were also killed
and thus murdered in this incident."
The trial court further observed that in view of the testimony of
Kallu, who is an independent and reliable witness and his statement contains
the true version of the 22 occurrence. The accused persons and their companions
committed multiple murders of the seven innocent persons of Harijan caste in
cold blood. It was a ghastly crime committed by them which can shock the
conscience of any person of a civilized society. According to the trial court,
it may be a case of a caste war in which the accused and their companions
wanted to teach a lesson to the persons of the lower caste (Harijan and Chamars
in this case). The trial court found that the prosecution had succeeded in
establishing the charge of abduction of Kallu, his wife Jasodiya, Ganga, Tulsi,
Deo Nath, Din Dayal, Shripal and Sukhlal with the intention of committing their
murder. The trial court observed that the prosecution has also succeeded in
establishing beyond any shadow of reasonable doubt of the charge of dacoity
punishable under section 395 IPC against the accused. The trial court further
observed that the accused persons were further liable to be held guilty of the
charge punishable under section 201 IPC for destroying the evidence of murder
by throwing the dead bodies of the said victims in the river Ganges, except
Jasodiya who at that time had not died but was seriously wounded and later on
succumbed to her 23 injuries. The trial court convicted 18 accused persons
named by Kallu P.W.14 in his testimony and sentenced them to life imprisonment.
The accused respondents herein filed an appeal before the High
Court of Allahabad against the judgment of the trial court. The appeal before
the High Court was in the nature of first appeal and the High Court in a case
of this nature was expected to carefully analyze the entire evidence and
documents on record but unfortunately the High Court without analyzing the
entire evidence set aside the judgment of the trial court on the following
Jasodiya in her first information report which was construed as the dying
declaration did not name the appellant.
statement of Kallu PW14 was recorded after three months and because of his
silence for three months his statement is not worth relying.
High Court has drawn adverse inference because the copy of the complaint sent
Gandhi and Shri Jagjivan Ram was not produced by Kallu PW14.
The High Court termed the testimony of Kallu PW14 as
untrustworthy. The findings of the High Court are not based on proper analysis
and marshalling of the entire evidence on 24 record. As a matter of fact, the
High Court in the impugned judgment did not discuss the evidence on record.
A careful examination of the case in a proper perspective leads us
to an entirely different conclusion. The High Court ought to have appreciated
the mental frame of Jasodiya wherein she gave a statement which was construed
as a dying declaration. The eight persons who were abducted and tied with rope
and brought to river Ganges in the midstream and after their murder were thrown
in the river one by one except Kallu PW14 who escaped because he jumped into
the river. In that fear psyche, naming the appellants would have meant risking
her life and in that state of mind, the omission of mentioning the names of the
appellants is not unnatural and her testimony cannot be discarded on that
Similarly, the High Court has failed to appreciate the
circumstances in which Kallu PW14 has survived by jumping into the river and
hiding at certain places. In a genocide and massacre which was witnessed by
him, wherein all his seven close relatives including his wife were killed one
after other in his presence and were thrown in the river Ganga, his escaping 25
the death was a miracle. Hiding and saving his life from a mighty cruel upper
caste group was a normal human instinct.
reasonable or prudent person would have behaved in the same manner. Immediately
after his escape, he tried to make a complaint but he did not succeed.
Ultimately when he wrote to Smt. Indira Gandhi and Shri Jagjivan Ram, perhaps
at the intervention of someone, the police seriously investigated the matter
and he was brought to his village Lohari under police protection. The delay in
giving his statement is fully explained and in the facts and circumstances of
the case delay was quite natural. In a case of this nature, the witnesses
turning hostile is not unusual particularly in a scenario where upper caste
people have created such a great fear psyche. The instinct of survival is
paramount and the witnesses cannot be faulted for not supporting the
prosecution version. Even the evidence which is on record particularly of
Jasodiya and Kallu PW14 supported by the evidence of Head Constable Kashi
Prasad Tiwari PW27 is sufficient to bring home the guilt of the accused. The
evidence of PW14 and PW27 lead to the only conclusion that the accused were
squarely responsible for committing such a ghastly crime.
We are quite conscious of the fact that this court is interfering
with a case where there was a conviction by the trial court which ended up in
acquittal by the High Court.
Court is usually very slow in interfering with the acquittals. In the instant
case, the findings of the High Court are palpably erroneous and unsustainable.
This court would not have interfered if the view which has been
taken by the High Court is a possible or plausible view. In our considered
view, on proper scrutiny of the entire evidence and documents on record, no
other view is possible except the guilt of some of the accused. The High Court
without analyzing the evidence and assigning any cogent reason set aside the well
reasoned judgment of the Additional Sessions Judge and acquitted all the
We are equally conscious of the fact that reversal of the judgment
of the High Court would mean sentence of life imprisonment for some of the
accused. We have given patient hearing to the learned counsel for the parties
and have examined and re-examined the entire evidence and documents on record
to ensure that no innocent person is punished. On 27 a careful scrutiny of the
statement of Kallu PW14, only one aspect creates slight doubt in our minds
about his remembering the names of the 18 accused persons along with the names
of their villages after a lapse of three months.
people with sharp memory may perhaps be able to recount and recall all the
names and villages correctly. But when we take the case of ordinary rustic
illiterate villager, the possibility of over implications cannot be fully ruled
PW14 has named all the 18 accused but the independent witness Head Constable
Kashi Prasad Tiwari PW27 has named Lallan, Munna, Mathura Singh, Vijai Karan
Singh, Chhaila Singh and Dhirendra Singh. So as far as these names are
concerned, we find corroboration from the testimony of Head Constable Kashi
Prasad Tiwari PW27 and there cannot be slightest doubt regarding their
participation in this ghastly crime. We have strong suspicion about
participation of Ram Sajivan but we are giving him benefit of doubt because he
has not been named by PW27.
Before we part with this judgment, we deem it appropriate to deal
with judicial parameters to deal with the cases in which this court would be
justified in reversing the 28 judgment of acquittal. This court would
ordinarily be slow in interfering in order of acquittal. The scope of the
powers of the appellate court in an appeal is well settled. The powers of the
appellate court in an appeal against acquittal are no less than in an appeal
In Tulsiram Kanu v. The State, AIR 1954 SC 1, this Court
explicated that the appellate court would be justified in reversing the
acquittal only when very substantial question and compelling reasons are
present. In this case, the Court used a different phrase to describe the
approach of an appellate court against an order of acquittal. There, the
Sessions Court expressed that there was clearly reasonable doubt in respect of
the guilt of the accused on the evidence put before it. Kania, C.J., observed
that it required good and sufficiently cogent reasons to overcome such
reasonable doubt before the appellate court came to a different conclusion.
In Lekha Yadav v. State of Bihar (1973) 2 SCC 424, the Court
following the case of Sheo Swarup (supra) again reiterated the legal position
"The different phraseology used in the judgments of this Court such as-
(a) substantial and compelling reasons:
and sufficiently cogent reasons;
intended to curtail the undoubted power of an appellate court in an appeal
against acquittal to review the entire evidence and to come to its own
conclusion, but in doing so it should not only consider every matter on record
having a bearing on the questions of fact and the reasons given by the court
below in support of its order of acquittal but should express the reasons in
its judgment which led it to hold that the acquittal was not justified."
In Bishan Singh & Others v. The State of Punjab (1974) 3 SCC
288, Justice Khanna speaking for the Court provided the legal position:
It is well settled that the High Court in appeal under Section 417 of the CrPC
has full power to review at large the evidence on which the order of acquittal
was founded and to reach the conclusion that upon the evidence the order of
acquittal should be reversed. No limitation should be placed upon that power
unless is be found expressly stated be in the Code, but in exercising the power
conferred by the Code and before reaching its conclusion upon fact the High
Court should give proper weight and consideration to such matters as (1) the
views of the trial judge as to the credibility of the witnesses; (2) the
presumption of innocence in favour of the accused, a presumption certainly not
weakened by the fact that he has been acquitted at his trial; (3) the right of
the accused to the benefit of any doubt;
the slowness of an appellate court in 30 disturbing a finding of fact arrived
at by a judge who had the advantage of seeing the witnesses."
In Umedbhai Jadavbhai v. The State of Gujarat (1978) 1 SCC 228,
the Court observed thus:
an appeal against acquittal, the High Court would not ordinarily interfere with
the Trial Court's conclusion unless there are compelling reasons to do so inter
alia on account of manifest errors of law or of fact resulting in miscarriage
In B.N. Mutto & Another v. Dr. T.K. Nandi (1979) 1 SCC 361,
the Court observed thus:
stems out of the fundamental principle of our criminal jurisprudence that the
accused is entitled to the benefit of any reasonable doubt. If two reasonably
probable and evenly balanced views of the evidence are possible, one must
necessarily concede the existence of a reasonable doubt. But, fanciful and
remote possibilities must be left out of account. To entitle an accused person
to the benefit of a doubt arising from the possibility of a duality of views,
the possible view in favour of the accused must be as nearly reasonably
probable as that against him. If the preponderance of probability is all one
way, a bare possibility of another view will not entitle the accused to claim
the benefit of any doubt. It is, therefore, essential that any view of the
evidence in favour of the accused must be reasonable even as any doubt, the
benefit of which an accused person may claim, must be reasonable.
reasonable doubt", it has been remarked, "does not mean some light,
airy, insubstantial doubt that may flit through the minds of any of us about
almost anything at some time or other, it does not mean a doubt begotten by
sympathy out of reluctance to convict; it means a real doubt, a doubt founded
31 upon reasons. [Salmond J. in his charge to the jury in R. v. Fantle reported
in 1959 Criminal Law Review 584.]"
In Tota Singh & Another v. State of Punjab (1987) 2 SCC 529,
the Court reiterated the same principle in the following words:
Court has repeatedly pointed out that the mere fact that the appellate court is
inclined on a re-appreciation of the evidence to reach a conclusion which is at
variance with the one recorded in the order of acquittal passed by the court
below will not constitute a valid and sufficient ground for setting aside the
jurisdiction of the appellate court in dealing with an appeal against an order
of acquittal is circumscribed by the limitation that no interference is to be
made with the order of acquittal unless the approach made by the lower court to
the consideration of the evidence in the case is vitiated by some manifest
illegality or the conclusion recorded by the court below is such which could
not have been possibly arrived at by any court acting reasonably and
judiciously and is, therefore, liable to be characterised as perverse. Where
two views are possible on an appraisal of the evidence adduced in the case and
the court below has taken a view which is a plausible one, the appellate court
cannot legally interfere with an order of acquittal even if it is of the
opinion that the view taken by the court below on its consideration of the
evidence is erroneous."
In Harijana Thirupala & Others v. Public Prosecutor, High
Court of A.P., Hyderabad (2002) 6 SCC 470, this Court 32 again had an occasion
to deal with the settled principles of law restated by several decisions of
this Court. Despite a number of judgments, High Courts continue to fail to keep
them in mind before reaching a conclusion. The Court observed thus:
The principles to be kept in mind in our system of administration of criminal
justice are stated and restated in several decisions of this Court. Yet,
sometimes High Courts fail to keep them in mind before reaching a conclusion as
to the guilt or otherwise of the accused in a given case. The case on hand is
one such case. Hence it is felt necessary to remind about the well-settled
principles again. It is desirable and useful to remind and keep in mind these
principles in deciding a case.
our administration of criminal justice an accused is presumed to be innocent
unless such a presumption is rebutted by the prosecution by producing the
evidence to show him to be guilty of the offence with which he is charged.
Further if two views are possible on the evidence produced in the case, one indicating
to the guilt of the accused and the other to his innocence, the view favourable
to the accused is to be accepted. In cases where the court entertains
reasonable doubt regarding the guilt of the accused the benefit of such doubt
should go in favour of the accused. At the same time, the court must not reject
the evidence of the prosecution taking it as false, untrustworthy or unreliable
on fanciful grounds or on the basis of conjectures and surmises. The case of
the prosecution must be judged as a whole having regard to the totality of the
evidence. In appreciating the evidence the approach of the court must be
integrated not truncated or isolated. In other words, the impact of the
evidence in totality on the prosecution case or innocence of the accused has to
be kept in mind in coming to the conclusion as to the guilt or otherwise of the
33 accused. In reaching a conclusion about the guilt of the accused, the court
has to appreciate, analyse and assess the evidence placed before it by the
yardstick of probabilities, its intrinsic value and the animus of witnesses. It
must be added that ultimately and finally the decision in every case depends
upon the facts of each case.
Doubtless the High Court in appeal either against an order of acquittal or conviction
as a court of first appeal has full power to review the evidence to reach its
own independent conclusion.
it will not interfere with an order of acquittal lightly or merely because one
other view is possible, because with the passing of an order of acquittal
presumption of innocence in favour of the accused gets reinforced and
strengthened. The High Court would not be justified to interfere with the order
of acquittal merely because it feels that sitting as a trial court it would
have proceeded to record a conviction; a duty is cast on the High Court while
reversing an order of acquittal to examine and discuss the reasons given by the
trial court to acquit the accused and then to dispel those reasons. If the High
Court fails to make such an exercise the judgment will suffer from serious
In Chandrappa & Others v. State of Karnataka (2007) 4 SCC 415,
this Court held:
An appellate court has full power to review, reappreciate and reconsider the
evidence upon which the order of acquittal is founded.
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 and of law.
Various expressions, such as, "substantial and compelling reasons",
"good and sufficient grounds", "very strong circumstances",
"distorted conclusions", "glaring 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 the power of the court to review the evidence
and to come to its own conclusion.
appellate court, however, must bear in mind that in case of acquittal, there is
double presumption in 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 accused having secured his
acquittal, the presumption of his innocence is further reinforced, reaffirmed
and strengthened by the trial court.
two reasonable conclusions are possible on the basis of the evidence on record,
the appellate court should not disturb the finding of acquittal recorded by the
In the case of Raj Narain v. State of U.P. & Others [Criminal
Appeal Nos. 891-892 of 2002 decided on 18.09.2009], this Court reiterated the
aforesaid view and held that even if two views are reasonably possible, one
indicating conviction and other acquittal, this Court will not interfere with
the order of acquittal. However, this Court will not 35 hesitate to interfere
with such order if the acquittal is perverse in the sense that no reasonable
person would have come to that conclusion, or if the acquittal is manifestly
illegal or grossly unjust [See also Chikkarangaiah & Others v. State of
Karnataka Criminal Appeals No. 634-635 of 2002 decided on 02.09.2009]
In Sambasivan & Others v. State of Kerala (1998) 5 SCC 412,
while relying on the case of Ramesh Babulal Doshi v. State of Gujarat ((1996) 9
SCC 225, the Court observed thus:
The principles with regard to the scope of the powers of the appellate court in
an appeal against acquittal, are well settled. The powers of the appellate
court in an appeal against acquittal are no less than in an appeal against
conviction. But where on the basis of evidence on record two views are
reasonably possible the appellate court cannot substitute its view in the place
of that of the trial court. It is only when the approach of the trial court in
acquitting an accused is found to be clearly erroneous in its consideration of
evidence on record and in deducing conclusions therefrom that the appellate
court can interfere with the order of acquittal."
In Ghurey Lal v. State of UP (2008) 10 SCC 450, one of us
(Bhandari J.) summarized the legal position as follows in paras 69 and 70:
"69. The following principles emerge from the cases above:
appellate court may review the evidence in appeals against acquittal under
Sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of
reviewing evidence is wide and the appellate court can reappreciate the entire
evidence on record. It can review the trial court's conclusion with respect to
both facts and law.
accused is presumed innocent until proven guilty. The accused possessed this
presumption when he was before the trial court.
court's acquittal bolsters the presumption that he is innocent.
3. Due or
proper weight and consideration must be given to the trial court's decision.
This is especially true when a witness' credibility is at issue. It is not
enough for the High Court to take a different view of the evidence. There must
also be substantial and compelling reasons for holding that the trial court was
light of the above, the High Court and other appellate courts should follow the
well-settled principles crystallised by number of judgments if it is going to
overrule or otherwise disturb the trial court's acquittal:
appellate court may only overrule or otherwise disturb the trial court's acquittal
if it has "very substantial and compelling reasons" for doing so.
of instances arise in which the appellate court would have "very
substantial and compelling reasons" to discard the trial court's decision.
"Very substantial and compelling reasons" exist when:
trial court's conclusion with regard to the facts is palpably wrong;
trial court's decision was based on an erroneous view of law;
trial court's judgment is likely to result in grave miscarriage of justice";
entire approach of the trial court in dealing with the evidence was patently
trial court's judgment was manifestly unjust and unreasonable;
trial court has ignored the evidence or misread the material evidence or has
ignored material documents like dying declarations/report of the ballistic
This list is intended to be illustrative, not exhaustive.
appellate court must always give proper weight and consideration to the
findings of the trial court.
3. If two
reasonable views can be reached--one that leads to acquittal, the other to
conviction--the High Courts/appellate courts must rule in favour of the
In a recently delivered judgment of this court in State of U.P. v.
Banne alias Baijnath & Others (2009)4 SCC 271, one of us (Bhandari, J.)
summarized the entire legal position and observed that this court would be
justified in interfering in the judgment of the High Court in the following
circumstances which are illustrative and not exhaustive:
The High court's decision is based on totally erroneous view of law by ignoring
the settled legal position;
High court's conclusions are contrary to evidence and documents on record.
entire approach of the High court in dealing with the evidence was patently
illegal leading to grave miscarriage of justice;
High court's judgment is manifestly unjust and unreasonable based on erroneous
law and facts on the record of the case;
Court must always give proper weight and consideration to the findings of the
court would be extremely reluctant in interfering with a case when both the
Sessions Court and the High Court have recorded an order of acquittal.
The following principles emerge from the aforementioned cases.
appellate court may review the evidence in appeals against acquittal under
sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of
reviewing evidence is wide and the appellate court can reappreciate the entire
evidence on record. It can review the trial court's conclusion with respect to
both facts and law.
accused is presumed to be innocent until proved guilty. The accused possessed
this presumption when he was before the trial court.
court's acquittal bolsters the presumption that he is innocent.
must also be substantial and compelling reasons for reversing an order of
court would be justified in interfering with the judgment of acquittal of the
High Court only when there are very substantial and compelling reasons to
discard the High Court decision.
When we apply the test laid down by this court repeatedly in large
number of cases, the irresistible conclusion is that the High Court in the
impugned judgment has not correctly followed the legal position. In the instant
case, the trial court exhaustively dealt with the entire evidence and documents
on record and the findings of the High Court is based on proper marshalling and
analyzing the evidence and documents on record. The trial court has given
graphic description of the entire case of the prosecution and the detailed
circumstances in which the evidence of Kallu PW14 was recorded. To satisfy our
conscience and to ensure that even the miscarriage of justice should not take
place, we reexamined the entire evidence and documents on record.
court's view is the only possible view in the facts and 40 circumstances of the
case. Though the trial court convicted 18 accused but to ensure that even the
slightest miscarriage of justice should not take place, we have modified the
order of the trial court and given benefit of doubt to 12 accused but as far as
other six accused are concerned, there is no iota of doubt about their
participation in this ghastly crime where seven innocent persons of lower caste
were literally butchered and were thrown in the river Ganges at a point where
there were strong currents to wipe out the entire evidence in this case. The
High Court has neither analyzed the evidence nor the documents on record and
without any cogent evidence, the High Court by the impugned judgment has set aside
a very well reasoned judgment of the trial court.
On consideration of the totality of the facts and circumstances of
the case, we partly allow the appeal filed by the State and the acquittal of
six accused namely (1) Mathura Singh @ Vijay Bahadur Singh R/o Vill. Lohari,
District Fatehpur, (2) Udai Bhan Singh @ Lallan Singh R/o Kasraon District.
Fatehpur, (3) Dhirendra Singh R/o Mawaiya, District Fatehpur, (4) Munna son of
Ram Lal R/o District Banda, (5) Ram Niwas Singh alias Challa Singh R/o Siyari,
District 41 Fatehpur, and (6) Vijay Karan Singh R/o Bhainsahi, District
Fatehpur recorded by the High Court is set aside and their conviction as
recorded by the trial court is restored. However, during the pendency of this
appeal, Ram Niwas Singh alias Challa Singh died and consequently his appeal
The bail bonds of the convicted accused are cancelled and they are
directed to surrender forthwith. In case they do not surrender within a period
of four weeks from today, the State of UP is directed to arrest and lodge them
in the prison to suffer the life imprisonment. Other accused who were convicted
by the trial court are given benefit of doubt. They were acquitted by the High
Court in the impugned judgment.
acquittal is maintained.
The appeal is accordingly disposed of.
........................................J. (Dalveer Bhandari)
.......................................J. (A.K. Patnaik)