Khem Karan & Ors Vs. The State of
U.P. & ANR  INSC 82 (8 April 1974)
BEG, M. HAMEEDULLAH CHANDRACHUD, Y.V.
CITATION: 1974 AIR 1567 1974 SCR (3) 863 1974
SCC (4) 603
Code of Criminal Procedure, 1908--Appeal against
acquittal--Propriety of Court of Appeal convicting some of the acquitted
persons--Group clash--Scope of High Court's power to re-evaluate
evidence--Foundation for acquittal is re-moved by otherwise credible testimony.
In a background of bitter hostility. there
was a confrontation and exchange of violence between the complainants' group
and that of all the accused-appellants.
Several on the prosecution side sustained
gunshot wounds, although not fatal, while the three accused-appellants received
lathi blow injuries. The complainant's plea was that when attacked by guns, he
and his men went at them, disarmed them and beat them with lathis. Twenty-three
accused stood trial.. The trial court disbelieved the defence version out found
that the prosecution testimony too partisan, and consequently acquitted
everyone. The High Court maintained the acquittal of all but the three
appellants-accused. In respect of the latter, it found that the injuries on the
persons of the three appellants and) the fact ',hat one of them had a gun in
his hands at the time of the occurrence, were sufficient, together with the
other evidence to hold them guilty. On appeal by special leave to this Court by
the said three appellants,
HELD : (1) The principle of law is well established
that merely because a. different view of the evidence is possible, you cannot
cancel a finding against guilt Rut the appellate Court is untrammelled in its
power to re-evaluate the evidence, bearing in mind the seriousness of
overthrowing an acquittal once recorded. In that view we cannot find any error
of law in the High Court reconsidering the probative value of the oral and
circumstantial evidence in the case. Nor are we persuaded to think that the
appellate Court has failed to observe the built-in.
restraints on exercise of power while
upsetting an acquittal. On the other hand, the Court has made the correct
approach that only those accused against whom there was additional probative
reinforcement could be convicted.
[864 G-865 B] (11)Neither mere possibilities
nor remote probabilities no,, mere doubts which are not reasonable can, without
danger to the administration of justice,. be the foundation of the acquittal of
an accused person, if there is otherwise fairly credible testimony. If a trial
Courts' judgment verges on the perverse, the appellate Court has a duty to set
the evaluation right and that is about all that has happened in this case. [865
E-F] (111)The fact that a large number of accused have been acquitted and the
remaining who have been convicted are less than five cannot vitiate the
conviction under s. 149 read with the substantive offence if-as in this case
the Court has taken care to find-there are other persons who might not have
been, identified or convicted but were party to the crime and together
constituted the statutory number. On trust basis, the conviction under s. 307.
read with S. 149 has to be sustained [866 A-B] Sukh Ram v. State of U.P. A.I.R.
974, S.C. 323, referred to Bharwad Mepa Dana v. State of Bombay.  2
CRIMINAL APPELLATE JURISDICTION :-Criminal
Appeal No. 40 of 1971.
Appeal by special leave from the Judgment and
Order dated the 21st September, 1970 of the, Allahabad High Court at Allahabad
in Criminal Appeal No. 944 of 1967.
12-Lg4SuP. Cl/75 864 R. L. Kohli, for the
O. P. Rana, for respondent No. 1.
The Judgment of the Court was delivered byKRISHNA
IYER, J.-This appeal by special leave, by three out of twenty three, who alone
were convicted by the High Court in reversal of a total acquittal by the trial
court, turns on the propriety of the Court of Appeal convicting accused persons
whose initial advantage of a presumption of innocence has been strengthened by
a judicial affirmation at the first level.
The few facts are these. Two groups-the
complainants' and the accused's--have been on terms of bitter hostility-a
background material which has legitimately induced both the courts to be very
sceptical about the veracity of the prosecution witnesses in the, absence of
unlying corroboration. As found by both the courts, a confrontation and
exchange of violence occurred on June 22, 1964 each party calling the other
aggressor. Anyway, several on the prosecution side did receive gunshot wounds,
although luckily not fatal, and three among the accused bunch had on their
person lathi blow injuries. The trial Judge disbelieved the version of the
defence but found the P.Ws.
too partisan to pin his faith on, and in
consequence acquitted everyone. The High Court agreed that unless the infirmity
of interested testimony was cured by other credible evidence the fate of the
case would be the same and on that basis dismissed the State's appeal against
all but the three appellants before us. Was this exceptional treatment
justified (a) by the evidence, and (b) in the light of first court's acquittal
? An encounter did take place and a case and counter-case ensued. The
accused-except a few who pleaded alibi in vainclaimed that they were attacked.
Even the trial court has rejected this contention and the High Courthas held
that, having regard to the number and nature of injuries and the number of
persons who have been hit by fire power, the accused were the attackers. We see
no reason to disturb, this conclusion. Even so, how could you hand-pick three
out ,of twenty three for punishment? The complainant's plea is that when
attacked by guns he and his men werit at them, disarmed them and beat them with
lathis. The convicted three have injuries which fit in with this version. The
appellate Court has taken these injuries as corroborative of participation in
the rioting and attempt to murder (read with s. 149, I.P.C.) charged against
all the accused. The short question is whether these wound bring home the guilt
so strongly as to warrant upsetting of an earlier acquittal.
The principle of law is well-settled that
merely because a different view of the evidence is possible-minds differ as
rivers differyou cannot cancel a finding against guilt. But the appellate Court
is untrammelled in its power to reevaluate the evidence bearing in mind the
seriousness of overthrowing an acquittal once recorded. In that view we cannot
find any error of law in the High Court 865 reconsidering the probative value
of the oral and circumstantial evidence in the case. Nor are we persuaded to
think that the appellate Court has failed to observe the built-in restraints on
exercise of Dower while upsetting an acquittal. On the other. hand, the Court
has made the correct approach that only those accused against whom there was additional
probative reinforcement could be convicted.
So, it found that the injuries on the persons
of the three appellants and the fact that Siya Ram, appellant No. 2, had a gun
in his hands at the time of the occurrence were sufficient, together with the
other evidence, to hold the appellants guilty.
We cannot part with this case without
mentioning the serious error some subordinate courts commit in the application
of the rule of benefit of reasonable doubt. For instance, in the present case
the learned Sessions Judge has misguided himself by chasing bare possibilities
of doubt and exalting them into sufficiently militating factors justifying
acquittal. The following passage illustrates the grievous mistake of the
"I must concede that probabilities for
such a situation are remote but possibilities cannot be ruled out. We have to
see whether the incident took place in the manner as alleged by the prosecution
or not. To inspire confidence of the Court the prosecution has to establish
each link in its version beyond all doubts. When other links in the
prosecution, as discussed above, have failed to inspire confidence, I think in
such a case the benefit of doubt prevailing around the remaining links in the
version must go to the accused." Neither mere possibilities nor remote
probabilities nor mere doubts which are not reasonable can, without danger to
the administration of justice, be the foundation of the acquittal of an accused
person, if there is otherwise fairly credible testimony. If a trial court's
judgment verges on the perverse, the appellate court has a duty to set the
evaluation right and that is about all that has happened in this case. The High
Court has given a large margin for reasonable doubt and confirmed the acquittal
of a considerable number of the accused.
Although the surviving accused who have been
convicted are only three, s. 149, and in any case s. 34, I.P.C., will rope in
the appellants by way of constructive liability. This Court has, in Sukh Ram v.
State of U.P.,(1) held that the acquittal of two out of three named accused
does not bar the conviction of the third under s. 302, read with s. 34, if he
is shown to have committed the offence with unknown companions. As in that
case, here also no possible prejudice can be claimed by the accused-appellants
by the invocation of s.34, I.P.C., even if twenty out of twenty three have been
acquitted. Moreover, this Court has in Bharwad Mena Dana v. State of Bombay(2)
(1) A.I.R. 1974 S.C. 323.
(2)  2 SCR 172.
866 taken the view that nothing in law
prevents the court from finding that the unlawful assembly consisted of less
than five convicted persons and some unidentified persons together numbering
more than five. In our view, the fact that a large number of accused have been
acquitted and the remaining who have been convicted are less than five cannot
vitiate the conviction under s. 149 read with the substantive offence if-as in
this case the Court has taken care to find there are other persons who might
not have been identified or convicted but were party to the crime and together
constituted the statutory number. On this basis, the conviction under s. 307,
read with s. 149, has to be sustained.
What remains is the question of sentence. It
is true that those assailants who did not receive injuries have escaped
punishment and conviction has been clamped down on those who have sustained
injuries in the course of the clash. It is equally true that those who have
allegedly committed the substantive offences have jumped the gauntlet of the
law and the appellants have been held guilty only constructively.
We also notice that the case has been pending
for around ten years and the accused must have been in jail for some time, a
circumstance which is relevant under the new Criminal, Procedure Code though it
has come into operation only from April 1, 1974. Taking a conspectus of the various circumstances in the case, some of which are indicated above, we are
satisfied that the ends of justice would be met by reducing the sentence to
three years rigorous imprisonment under s. 307, read with s. 149, and one yearrigorous
imprisonment under s. 147, I.P.C., the two terms running concurrent y. With
this modification regarding sentence, we dismiss the appeal.