Ram Jag & Ors Vs. The State of U.P
[1973] INSC 255 (21 December 1973)
CHANDRACHUD, Y.V.
CHANDRACHUD, Y.V.
BEG, M. HAMEEDULLAH
CITATION: 1974 AIR 606 1974 SCR (3) 9 1974
SCC (4) 201
CITATOR INFO:
F 1974 SC2165 (27) R 1975 SC 185 (2) F 1975
SC 274 (4) RF 1975 SC1100 (6) RF 1975 SC1808 (3) F 1976 SC1994 (13) F 1976
SC2032 (2,3) R 1976 SC2304 (22)
ACT:
Penal Code--Ss. 302, 325, 323--Constitution
of India--Art.
136--High Court setting aside
acquittal--Appeal by special leave--If Supreme Court could re appreciate
evidence.
HEADNOTE:
The appellants who were charged with the
offence of murder were acquitted by the Additional Sessions Judge but the order
of acquittal was set aside in appeal by the High Court. The High Court
convicted them under various sections of the Penal Code and sentenced them to
life imprisonment for the offence of murder and to shorter terms for the other
offences. The prosecution case was that when the deceased, along with three
other persons, was returning from temple, he was attacked at about 4 P. M. on
the day of the occurrence by the appellants. The deceased, who was mortally
injured, was carried in a bullock cart to a nearby police station. On the way
he succumbed to his injuries.
The first information report was lodged in
the police station at 12.30 that night.
Allowing the appeal to this Court,
HELD : This Court in an appeal under Art. 136
will examine the evidence only if the High Court while setting aside the order
of acquittal by the trial court has failed to apply correctly the principles
governing appeals against acquittals.
In Sheo Swarup & Ors v. The King Emperor,
61 I.A. 398, Surajpal Singh v. The state [1952] S.C.R.193 and Sanwat Singh v.
State Of Rajasthan [1961] 3 S.C.R. 120, the principles governing appeals
against acquittal are firmly established. The Code of Criminal Procedure made
no distinction between the powers of the appellate court in regard to the two
categories of appeals and, therefore, the High Court has powers as full and
wide in appeals against acquittal as in appeals against conviction. Whether the
High Court is dealing with one class of appeals of criminal jurisprudence that
unless the, statute provides to the contrary there is a presumption of
innocence in favour of the accused and secondly that the accused is entitled to
the benefit of reasonable doubt. Due regard to the views of the trial court as
to the credibility of witnesses in matters resting on pure appreciation of
evidence and the studied slowness of the appellate court in disturbing a
finding of fact arrived at by a judge who had the advantage of seeing and
hearing the witnesses, where such seeing and hearing can be useful aids to the
assessment of evidence are well known principles which generally inform the
administration of justice and govern the exercise of all appellate
jurisdiction. They are self-imposed limitations on a power otherwise plenary
and like all voluntary restraints, they constitute valuable guidelines. Such
regard and slowness must find their reflection in the appellate judgment, which
can only be if the appellate court deals with the principal reasons that
influenced the order of acquittal and after examining the evidence with care
gives its own reasons justifying a contrary view of the evidence. It is
implicit in this judicial process that if two views of the evidence are
reasonably possible, the finding of acquittal ought not to be disturbed.
If after applying these principles, not by
their mechanical recitation in the judgment, the High Court has reached the
conclusion the order of acquittal ought to be reversed, this court will not
reappraise evidence in appeals brought before it under art. 136of the
Constitution. In such appeals, only such examination of the evidence would
ordinarily be necessary as is required to see whether the high court has
applied the principles correctly. The High Court is the final court of facts
and the reserve jurisdiction of this Court under Art. 136, though couched in
wide terms, is by long practice exercised in exceptional cases where the High
Court has disregarded the guidelines set by this Court for deciding appeals
against acquittal or by disregard to the forms of legal process or some
violation of the principles of natural justice or otherwise, substantial and
grave injustice has been done', or where the finding is such that it shakes the
conscience of the court.
[15B-G] 10 The High Court in the instant case
was evidently aware of these principles but it failed to apply then to the case
on hand. The High Court was not correct in characterising of the findings
recorded by the trial court as "perverse".
(i) The High Court was not right in rejecting
the view of the Sessions Judge that there was undue delay in lodging the report
and that the delay was not satisfactorily explained.
Whether the delay was so long as to throw a
cloud of suspicion on the case of the prosecution must depend upon a variety of
factors which would vary from case to case.
(ii) In the instant case the defence of the
appellants that the occurrence must have taken place under cover of darkness,
that is, long after the time at which it was alleged to have taken place is
well founded and the High Court was clearly in error in discarding it.
(iii) If the principal witness had no
compunction in creating an eyewitness his evidence had to be approached with
great caution. The High Court was not justified in holding that the only impact
of the false discovery of an eye witness on the prosecution case was that the
evidence of the principal witness had to be rejected in part.
(iv) Yet another witness had made conflicting
statements on oath before two courts on an important aspect and the question
which the High Court should have asked itself was whether the view taken by the
Sessions Court in regard to this witness was a reasonable one. The High Court
was not right in saying that there was no reason to discard the testimony of
the other eye witnesses even if his evidence was left out.
(v) The motive was said to be illicit
intimacy between the deceased and daught of one of the assailants. But one of
the witnesses deposed that the assailants were dacoits and that they searched
his pocket as well as the pockets of his companions. The first information
report made no mention of any one of the accused referring to the illicit
intimacy before, during or after the attack. The endeavour at the trial was to
show that the incident was connected with the illicit affair. if that be the
true motive, it is hardly likely that the assailants would search the pockets
of the deceased and his companions. The Sessions Judge was justified in
attaching due importance to this aspect of the matter and the High Court was
not right in saying that unnecessary emphasis was laid on a minor matter.
CRIMINAL, APPELLATE JURISDICTION : Criminal
Appeal No. 110 of 1970.
Appeal by Special Leave from the Judgment and
Order dated the 8th January 1970 of the Allahabad High Court (Lucknow Bench) at
Lucknow in Criminal Appeal No. 634 of 1967.
A. N. Mulla and R. L. Kohli, for the
appellants.
0. P. Rana, for the respondent.
The Judgment of the Court was delivered by
CHANDRACHUD J.-The appellants, eleven in all, were acquitted by the Additional
Sessions Judge, Gonda, but the order of acquittal was set aside in appeal by
the High Court of Allahabad (Lucknow Bench). The High Court has convicted the appellants
under sections 302, 325 and 323 read with section 149 and under section 147 of
the Penal Code. They have been sentenced to life imprisonment for the offence
of murder and to shorter terms for the other offences. This appeal by special
leave is directed against that judgment. The charge against the appellants is
that on the evening of September 17, 1966 they formed an unlawful assembly and
in prosecution of the common object of that assembly 11 they caused the death
of Hausla Prasad and injuries to Rampher, Dwarika and Lakhu.
On September 17,1966 which was a Kajri Tij
day Rampher and the deceased Hausla Prasad had gone to a temple which is at a
distance about 8 miles from the village of Jhampur where they lived. They left
the temple late in the afternoon along with Dwarika and Lakhu whom they met at
the temple. Soon after they crossed a river near the village of Singha Chanda
they are alleged to have been attacked by the appellants.
Dwarika brought a bullock' cart from a
village called Gauhani and thereafter the four injured persons proceeded to the
Tarabganj police station. On the way Rampher dictated the First Information
Report to a boy called Gorakhnath and soon,, thereafter the report was lodged
at the police station at about 12-30, at night.
Hausla Prasad succumbed to his injuries just
before the party reached the police station. He had' 12 injuries on his person,
Lakhu and a swelling Rampher had received 6 injuries while Dwarika had received
9 injuries. The injuries received by these persons including, Hausla Prasad
were mostly contused lacerated wounds and abrasions.
The prosecution examined Rampher, Dwarika,
Lakhu, Ram, Shanker and Ram Kripal (P. Ws 2 to 6) as eye-witnesses to the
Occurrence. The learned Additional Session's Judge held that these witnesses
were not worthy of credit and acquitted the appellants. The High Court was not
impressed by the evidence of Ram Shanker and. Ram Kripal but accepting the
evidence of Rampher, Dwarika and Lakhu it convicted the appellants of the
offences of which they were charged.
Learned counsel for the State, when called
upon raised a fundamental objection to our entertaining the various questions
raised on behalf of the appellants. He contends that the sole question in the
appeal, is whether the High Court was right in accepting the evidence of the
three eye- witnesses and therefore this Court, in the exercise of its powers
under article 136 of the Constitution, ought not to re-appreciate that evidence
in order to determine whether it can sustain the conviction of the appellants.
The question as regards the power of this
Court in criminal appeals by special leave from the judgments of High Courts
setting aside acquittals has been discussed in numerous cases but the precise
scope of that power is still being debated as a live issue. In case after case,
counsel have contended that this Court does not under article 136 function as
yet another court of appeal and therefore on matters of appreciation of
evidence, the final word must rest with the High Court. Considering the
staggering mass of work which is gradually accumulating in this Court, such a
rule will bring welcome relief. But it is overstating the rule to say that the
verdict of the High Court on questions of fact, including assessment of
evidence, cannot ever be re-opened in this Court.
12 The true position is that if the High
Court has set aside an order of acquittal, this Court in an appeal under
article 136 from the judgment of the High Court will examine the evidence only
if the High Court has failed to apply correctly the principles governing
appeals against acquittal. In a series of decisions, High Courts had taken the
view that upon an appeal from an acquittal the appellate court is not entitled
to interfere with the decision of the trial court on facts unless it has acted
perversely or otherwise improperly or has been deceived by fraud. (See Empress
of India v. Gayadin(1); Queen-Empress v. Robin- son(2); Deputy Legal
Remembrancer of Bengal v. Amulya Dwan (3); King-Emperor v. Deboo Singh (4);
King-Emperor; v. U San Win (5).) A contrary line of cases had, on the other
hand, ruled that the Code of Criminal Procedure drew no distinction between an
appeal from an acquittal and an appeal from a conviction, and no such
distinction could be imposed by judicial decision. (See Queen-Empress v. Prag
Dat(6); Queen-Empress v. Bibhuti Bhusan Bit(7); Deputy Legal Remembrancer,
Behar and Orissa v. Mutukdhari Singh (8); Re Sinnu Goundan (9); Queen-Empress
v. Karigowda(1O).
In Sheo Swarup and Ors. v. The
King-Emperor,(11) these conflicting decisions were canvassed before the Privy
Council but it saw no useful purpose in examining the long list of decisions.
Observing that the answer to the question in issue would depend upon the
construction of the provisions in the Code of Criminal Procedure,the,Privy
Council noticed sections 404, 410, 417, 418 and 422, examined section 423 and
concluded that the Code draw no distinction between an appeal against an
acquittal and an appeal against a conviction, as regards the powers of the High
Court. Speaking for the Judicial Committee, Lord Russell observed :
"There is, in their opinion, no
foundation for the view, apparently supported by the judgments of some Courts
in India, that the High Court has no power or jurisdiction to reverse an order
of acquittal on a matter of fact, except in cases in which the lower Court has
"obstainately blundered," or has "through incompetence,
stupidity or perversity" reached such "distorted conclusions as to
produce a positive miscarriage of justice," or has in some other way so
conducted or misconducted itself as to produce a glaring miscarriage of
justice, or has been tricked by the defence so as to produce a similar result.
"Sections 417, 418 and 423 of the Code
give to the High Court full power to review at large the evidence upon which
the order of acquittal was founded, and to reach the conclus ion that upon that
evidence the order of acquittal should be reversed No limitation should be
placed upon that power, unless it be found 1. (1881) I. L. R. 4 Allahabad 148.
2. (1894) I. L. R. 16 Allahabad 212.
3. (1913) I.L.R. 18 C.W.N. 666.
4. [1927] I.L.R. 6 Patna 496.
5. (1932) I.L.R. 10 Rangoon 312.
6. (1898) I.L.R. 20 Allahabad 459.
7. (1890) I.L.R. 17 Calcutta 485.
8. (1915) 20 C.W.N. 128.
9. (1914) I.L.R. 38 Madras 1028,1034.
10. (1894) I.L.R. 19 Bombay 51.
11. 61 1. A. 398.
13 expressly stated in the Code, But in
exercising the power conferred by the Code and before reaching its conclusions
upon fact, the High Court should and will always 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; and (4) the slowness of an appellate Court in disturbing a finding of
fact arrived at by a judge who had the advantage of seeing the witnesses. To
state this, however, is only to say that the High Court in its conduct of the
appeal should and will act in accordance with rules and principles well known
and recognised in the administration of justice." The amplitude of the
power of the High Court in appeals against acquittal was reiterated by the Privy
Council in Nur Mahomed v. Emperor.(1) While holding that in appeals against
acquittals the High Court has full power to review at large all the evidence
and to reach the conclusion that upon that evidence the order of acquittal
should be reversed, the Privy Council had pointed out that before reaching its
conclusions on facts the High Court must always give proper weight to certain
matters like the presumption of innocence, the benefit of' doubt etc.
This qualification upon a power otherwise
wide and unlimited was no more than differently expressed by this Court in
Surajpal Singh v. The State(2), by saying that though it is well-established
that the High Court has full power to review the evidence on which the order of
acquittal was founded, "it is equally well settled that the presumption of
innocence of the accused is further reinforced by his acquittal by the trial
court, and the findings of the trial court which had the advantage of seeing
the witnesses and hearing their evidence can be reversed only for very
substantial and compelling reasons". The phrase "substantial and
compelling reasons" became almost a part, as it were. of codified law and
was repeatedly used by this Court with emphasis in cases like Ajmer Singh v.
State of Punjab(3), Puran v. State of' Punjab (4), Aher Raja Khima v.The State
of Saurashtra (5), Bhagwan Das v. State of Rajasthan (6) and Balbir Singh v.
State of Punjab. (7) Judgments of several High Courts in appeals against
acquittals would bear evidence of the magic spell which the phrase had cast and
how it had coloured their approach to the evidence before them. The apparently
rigorous requirement of the rule of "substantial and compelling rea-
sons" and to some extent its tedium was relieved by the use of words "
good and sufficiently cogent reasons" in Tulsiram Kani v. The State.(8) In
Aher Raja Khima's case(5), the formula of "substantial and corn- 1. A.I.R.
1945 P.C. 151.
3. [1953] S.C.R. 418.
5. [1955] 2 S.C.R.1285.
7. A.I.R. 1957 S.C. 216, 2. [1952] S.C.R.
193.
4. A.I.R. 1953 S.C. 459.
6. A.I.R. 1957 S. C. 589.
S. A.I.R. 1954 S.C. 1.
14 pelling reasons" though adopted, was
treated as synonymous with "strong reasons".
This stalemate was resolved by this Court in
Sanwat Singh v. State of Rajasthan(1). Observing that "In recent years the
words 'compelling reasons' have become words of magic incantation in every
..appeal against acquittal", the Court said: "The words were intended
,,to convey the idea that an appellate court not only shall bear in mind .the
principles laid down by the Privy Council but also must give its ,clear reasons
for coming to the conclusion that the order of acquittal was wrong." The
principles laid down by the Privy Council in Sheo Swarup's case(2) were
expressly approved and it was held that "the different phraseology used in
the judgments of this Court, such as, (i) ,.substantial and compelling
reasons', (ii) 'good and sufficiently cogent reasons', and (iii) 'strong
reasons' are not 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 question of fact and the reasons given by the
court below in support of its order of acquittal in its arriving at a
conclusion on those facts, but should also express those reasons in its
judgment, which lead it to hold that the acquittal was not justified." The
principles governing appeals against acquittal as explained in Sanwat Singh's
case have been adopted and applied by this Court in numerous cases over the
past many years. No case has struck a discordant note though one or the other
requirement of the well-established principles has been high-lighted more in
some judgments than in others.
These, however, are variations in style and
do not reflect a variation in approach.
In Harbans Singh v. State of Punjab(3), a
four-Judge Bench observed: "What may be called the 'golden thread running
through all these ,decisions is the rule that in deciding appeals against
acquittal the Court of Appeal must examine the evidence with particular care,
must examine also the reasons on which the order of acquittal was based and
should interfere with the order only when satisfied that the view taken by the
acquitting Judge is clearly unreasonable." In Ramabhupala Reddy and Ors.
v. The State of Andhra Pradesh(4), the same thought was expressed by saying :
"if two reasonable conclusions, can be reached oil the basis of the
evidence on record, the appellate court should not disturb the findings of the
trial court." Very recently, in Shivaji Sahebrao Bobade and Anr. v. State
of Maharashtra(5), this Court rejuvenated the suspect formula of
"substantial and compelling grounds" thus : "We are clearly in
agreement...... that an acquitted accused should not be put in peril of
conviction on appeal save where substantial and ,compelling grounds exist for
such a course........ In law there are no fetters on the plenary power of the
Appellate Court to review the whole ,evidence on Which the order or acquittal
is founded and, indeed, it 1. [1961] 3 S.C.R. 120.
3. [1962] 1 Supp. S.C.R. 104. 1 5. A.I.R.
1973 S.C. 2622.
61 1. A. 398.
4. A.I.R. 1971 S.C. 460, 15 has a duty to
scrutinise the probative material de novo, informed, however, by the weighty
thought that the rebuttable innocence attributed to the accused having been
converted into an acquittal the homage our jurisprudence owes to individual
liberty constrains the higher court not to upset the holding without very
convincing reasons and comprehensive consideration." The principles
governing appeals against acquittal are thus firmly established and the issue
cannot now be re-opened.
The Code of Criminal Procedure by section
423, has accorded parity to appeals against conviction and appeals against
acquittal; the Code makes no distinction between the powers of the appellate
court in regard to the two categories of appeals and therefore the High Court
has powers as full and wide in appeals against acquittal as in appeals against
conviction. Whether the High Court is dealing with one class of appeals or the
other, it must equally have regard to the fundamental principles of Criminal
Jurisprudence that unless the statute provides to the contrary there is a
presumption of innocence in favour of the accused and secondly, that the
accused is entitled to the benefit of reasonable doubt. Due regard to the views
of the trial court as to the credibility of witnesses in matters resting on
pure appreciation of evidence and the, studied slowness of the appellate court
in disturbing a finding of fact arrived at by a Judge who had the advantage of
seeing and hearing the witnesses, where such seeing and hearing can be useful
aids to the assessment of evidence, are well-known principles which generally
informs the administration of justice and govern the exercise of all appellate
jurisdiction. They are self-imposed limitations on a power otherwise plenary
and like all voluntary restraints, they constitute valuable guidelines. Such
regard and slowness must find their reflection in the appellate judgment, which
can only be if the appellate court deals with the principal reasons that become
influenced the order of acquittal and after examining the evidence with care
gives its own reasons justifying a contrary view of the evidence. It is
implicit in this judicial process that if two views of the evidence are
reasonably possible. the finding of acquittal ought not to be disturbed.
if after applying these principles, not by
their mechanical recitation in the judgment, the High Court has reached the
conclusion that lie order of acquittal ought to be reversed, this Court will
not reappraise evidence in appeals brought before it under article 136 of the
Constitution. In such appeals, only such examination of the evidence would
ordinarily be necessary as is required to see whether the High Court has
applied the principles correctly. The High Court is the final court of facts
and the reserve jurisdiction of this Court tinder article 136, though couched
in wide terms, is by long practice exercised in exceptional cases where the
High Court has disregarded the guide-lilies set by this Court for deciding
appeals against acquittal or "by disregard to the forms of legal process
or some violation of the principles of natural justice or otherwise,
substantial and grave injustice has been done" or where the finding is
such that it shocks the conscience of the Court (See, Sanwat Singh & Or.;.
v. State of Rajasthan(1); Harbans Singh & (1) [1961]3 S.C.R. 120, 134-135.
16 Anr. v. State of Punjab (1); Ramabhupala
Reddy and Ors., V. The State of Andhra Pradesh(2); and Shivji Genu Mohite v. State
of Maharashtra)(3). A finding reached by the application of correct principles
cannot shock judicial conscience and this Court does not permit its conscience
to be projected save where known and recognised tests of testimonial assessment
are totally disregarded; otherwise, conscience can become an unruly customer.
The High Court in the instant case was
evidently aware of these principles but it failed to apply them to the case on
hand. In an effort to justify its interference with the order of acquittal it
has characterised one of the findings recorded by the trial court as 'perverse'
but with that we must express our disagreement. We will now proceed to show how
the view taken by the learned Sessions Judge is clearly a reasonable view to
take of the evidence.
According to the prosecution the occurrence
took place at about 4 p. zn. and since the First Information Report was lodged at
about 12-30 at night at the Tarabganj police station which is at a distance of
about 4 miles from the scene of occurrence, the learned Sessions Judge held
that there was undue delay in lodging the Report and that the delay was not
satisfactorily explained. It is true that witnesses cannot be called upon to
explain every hour's delay and a commonsense view has to be taken in
ascertaining whether the First Information Report was, lodged after an undue
delay so as to afford enough scope for manipulating evidence. Whether the delay
is so long as to throw a cloud of suspicion on the seeds of the prosecution
must depend upon a variety of factors which would vary from case to case. Even
a long delay in filing report of an occurrence can be condoned if the witnesses
on whose evidence the prosecution relies have no motive for implicating the
accused. On the other hand, prompt filing of the report is not an unmistakable
guarantee of the truthfulness of the version of the prosecution.
In the instant case the importance of the
question whether there was delay in filing the First Information Report is of a
different order. The case of the appellants is that the occurrence must have
taken place under cover of darkness, that is, long after the time at which it
is alleged to have taken place and that is why the First Information Report
could not be ledged earlier than at 12-30 a.m. , This defence is wellfounded
and the-High Court was clearly in error in discarding it.
The village of Singha Chanda is just about a
furlong away from the scene of offence and yet Dwarika claims to have gone to
Gauhani, which is about 3 or 4 miles away, to get a bullock-cart. The High
Court observes:"It is not an unreasonable conduct on the part of the
witnesses not to take chance in the nearby village for arranging for a bullock.
cart when they felt sure that they would be able to procure one from a. village
which was somewhat farther away, the persons who owned the bullock-cart being
known to one of them." We find it difficult to endorse this view. After
the bullock-cart was brought to the place (1) (19621 1 Supp. S.C. R. 104, 1 1
1.
(2) A. I. R. 1971 S.C. 460, 464.
(3) A.I.R. 1973 S.C. 55. 62.
17 where the incident took place-Rampher and
his to w companions claimed to have taken a longer route to reach the police
station for the reason that taking the shorter route would have meant crossing
a river twice. The river had but ankle- deep water and was only 12 paces from
one end to the other.
Hausla Prasad was in a critical condition and
it is impossible to believe that a longer route was taken thoughtfully in order
to facilitate the journey. The High Court observes: "The taking of a
longer route also was justified in order to avoid the jolts for the injured on
the way for we find in the official map that there is a route by the road of
sufficiently good distance along which the bullock-cart could go if it took the
longer route." This reasoning is wholly devoid of substance because in
situations like the one in which the injured persons were placed, there is
neither time nor leisure to consider calmly the pros and cons of the matter.
The uppermost thought would be to reach the hospital and the police station as
early as possible and it is in the least degree likely, as observed by the High
Court that the injured persons avoided going through the tiny river because it
"might have done damage to Hausla Prasad whose condition was by no means
good." The truth of the matter is that the occurrence had taken place long
after 4 p.m. and witnesses were hard put to explaining why on their own theory
they took more than 8 hours to cover a distance of 4 miles. They offered a
fanciful explanation which was rightly rejected by the Sessions Court and was
wrongly accepted by the High Court.
It is significant that Rampher had stated in
the committing court that all of them were waiting at the spot of occurrence
for about 2 hours after "night-fall".
Ram Kripal, a brother of Rampher, himself was
examined by the prosecution as an eye-witness. His name was not mentioned in
the First Information Report in spite of the fact that the name of other
witnesses and several other minute details were mentioned therein. If Ram
Kripal was present at the time of the incident, he rather than the injured
Dwarika would have gone to fetch the bullock-cart.
The Sessions Court therefore rejected the
evidence of Ram Kripal and indeed the High Court also came to the conclusion
that Ram Kripal was not a reliable witness, 'that he might not have been
present at an and has been added as an after- thought in support of the
prosecution or in any case his statement is of doubtful value, but that does
not mean that Rampher's statement should be discarded for the principle of'
falsus in uno, falsus in omnibus is a principle that does not apply in our
country.' If Rampher had no compunction in creating an eyewitness his evidence
had to be approached with great caution. The High Court was not justified in
holding that the only impact of the false discovery of an eye-witness on the
prosecution case was that Rampher's evidence had to be rejected in part.
Ram Shanker is also alleged to have been
present at the time of the incident but he had admitted before the committing
magistrate that he left his house for the temple at about 2- 30 p.m. That would
make it impossible for him to be at the scene of offence at about 4 p.m. on his
18 way back from the temple. He therefore improved his version by stating in
the Sessions Court that he had left his house at about 6 a.m. He had also
stated in the committing court that he was waiting at the scene of offence till
about 8 p.m. but he denied in the Sessions Court that he had made any such
statement. The learned Sessions Judge was therefore justified in rejecting the
evidence of Ram Shanker. also. While dealing with the evidence of this witness
the High Court observes that "the statement of a witness should be
examined as a whole and the mere fact that the witness has denied certain
statements made by him earlier under the challenge thrown to him in the
witness-box during cross-examination should not detract from the value of his
testimony made on oath before the trial Judge". One can be unconventional
in the assessment of evidence but the approach of the High Court is impossible
to accept. Ram Shanker had made conflicting statements on oath before the two
courts on an important aspect and the question which the High Court had to ask
itself in the appeal against the order of acquittal was whether the view taken
by the Sessions Court in regard to the presence of Ram Shanker was not a
reasonable view to take. After indicating its disapproval of the conclusion
recorded by the Sessions Court that Ram Shanker was not a witness of truth' the
High Court proceeded to say that even if his evidence was left out, there was
no reason to discard the testimony of the other eye-witnesses.
The High Court also failed to appreciate the
true implication of Rampher's evidence in the Sessions Court that the
assailants were dacoits or 'Looteras' and that they had searched his pockets as
well as the pockets of his companions. Appellants are alleged to have assaulted
Hausla Prasad and his companions not with the motive of thieving but for the
alleged motive that-Hausla Prasad was in illicit intimacy with Sheshkali, the
daughter of Gaya Prasad who was the principal accused but who died during the
proceedings.
If that be the true motive, it is hardly
likely that Gaya Prasad and his companions would search the pockets of Rampher
and his troupe. The Sessions Court was justified in attaching due importance to
Rampher's evidence on this aspect of the matter. We are unable to appreciate
the criticism of the High Court that "It is again the case of an
unnecessary emphasis being laid on a minor matter". Indeed witnesses
themselves thought the matter to be so important that in order to render the
story of motive probable, they introduced in their evidence the embellishment
that before hitting Hausla Prasad, Gaya Prasad said "Is ko .... Aashnai ka
Maza Chakha do". The endeavour at the trial was to show that the incident
was connected with the illicit affair between Hausla Prasad and Sheshkali.
Significantly, the First Information Report makes no mention of any one of the
accused referring to the 'Aashnai' (illicit intimacy) before, during or after
the attack.
In the concluding portion of its judgment the
High Court has observed that the injured-persons must have been present at the
spot and as the occurrence took place in "broad day- light", there
was no reason why their evidence should not be accepted, "even though they
might have one reason or the other to falsely implicate one or the other 19
accused". It was wrong to conclude that the incident had taken place in
broad day-light and it was even more wrong that the High Court did not warn
itself of the danger of accepting the evidence of witnesses who bad reason to
implicate the appellants falsely.
For these reasons we are of the view that the
High Court was not justified in interfering with the order of acquittal passed
by the learned Sessions Judge. We therefore allow this appeal, set aside the
order of conviction and sentence and direct that the appellants shall be set at
liberty, if they are not already on bail.
P.B.R, Appeal allowed.
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