Barati Vs. State of U. P  INSC
51 (12 March 1974)
KHANNA, HANS RAJ KHANNA, HANS RAJ
CITATION: 1974 AIR 839 1974 SCR (3) 570 1974
SCC (4) 258
CITATOR INFO :
R 1979 SC 319 (12) RF 1992 SC 891 (24)
Penal Code-S. 302 Code of Criminal
Procedure-s. 417-Power of appellate Court to review at large evidence on which
order of acquittal by trial court founded--No limitation on power--Evidence of
close relations--If could be believed--Dying declaration- Effect of.
The appellant and his companions were
charged-with an offence under s. 302 I.P.C. for causing the death of the
deceased by pouring acid on him when he was sleeping on his cot on the night of
the occurrence. After recording the first information report the police sub-inspector
recorded the statement of the deceased and at the dispensary the doctor
recorded the statement of the deceased, in both of which he stated that the
appellant poured acid over his body and caused injuries to him. The deceased
succumbed to his injuries. Disbelieving the prosecution evidence the trial
court acquitted him. The High Court on the other hand accepted the evidence of
all the prosecution witnesses and convicted and sentenced the appellant to life
imprisonment but acquitted the remaining two accused.
In appeal to this Court it was contended that
the High Court should not have reversed the judgment of the trial court and the
evidence relied upon by the High Court was not satisfactory.
Dismissing the appeal.
HELD : that the approach of the trial court
was clearly unreasonable and the High Court was fully justified in setting aside
the acquittal of the. appellant. It is well settled that in an appeal under s.
417 of the Code of Criminal Procedure the Court 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 it be found expressly stated
in the Code, but in exercising the power conflict by the Code before reaching
its conclusion upon facts 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 real
and reasonable doubt and (4) the slowness of an appellate court in disturbing
the finding of fact arrived at by a judge who had the advantage of seeing the
witnesses. [576 D-F] In the instant case there was no doubt that the deceased
died as a result of acid bums. There was no cogent reason to disbelieve the
evidence of the prosecution witnesses.
The trial court was wrong in rejecting
evidence of these witnesses on the ground that they were related to the
deceased.! Close relatives of the deceased would normally be most reluctant to
spare the real assailant and falsely mention the name of another person as the
one responsible for causing injuries to the deceased. The deceased would not
spare his real assailant' and falsely mention the name of the appellant as one
who poured acid over his body.
There was no reason to discard the dying
declaration made by the appellant to the police sub-inspector, The trial Court
was wrong in rejecting the dying declaration to the police (F.I.R.) on the
ground that the deceased had stated to the doctor that he had become
unconscious after the occurrence.
There was nothing in the statement recorded
by the doctor to indicate that the deceased remained unconscious for. a long
time and as such was not in position to lodge the F.I.R. The fact that the
language used in the dying declaration made to the doctor was rather chaste
would not go to show that the said statement could not have been made by the
deceased. As to the language used in the dying declaration there is nothing
abnormal or unusual in the same person using colloquial language while talking to
one person and using refined language while talking to another person. [574 E-F
575D; 576A] 571
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 226 of 1970.
Appeal by special leave from the judgment and
order dated the 14th April, 1970, of the Allahabad High Court (Lucknow Bench)
at Lucknow in Criminal appeal no. 260 of 1968.
A. N. Mulla and O. N. Mohindroo, for the
O. P. Rana, for the respondent.
The Judgment of the Court was delivered by
KHANNA, J. Barati (26) was tried in the court of Sessions Judge Sitapur for an
offence under section 302 Indian Penal Code for causing the death of Lekhai
(45). Prabhu (24) and Ram Lal (24) were also tried along with Barati for
offence under section 302 read with section 109 Indian Penal Code for having
abetted the commission of the offence of murder.
Learned Sessions Judge acquitted all the
three accused. On appeal filed by the State the Allahabad High Court convicted
Barati under section 302 Indian Penal Code and sentenced him to undergo imprisonment
for life. The appeal against Prabbu and Ram Lal was dismissed. Barati then came
up in appeal to this Court by special leave.
The prosecution case is that the relations
between Lekhai deceased and his younger brother Pancham (PW 3) on the one side
and Barati accused on the other were strained. All three of them belong to
village Nasirapur in district Sitapur. Dispute had been going on between them
regarding the construction of a wall. About a couple of months before the
present occurrence, Baratia effected an opening in the western wall of his
house which gave rise to an apprehension that he intended to encroach upon the
land belonging to Lekhai and Pancham. Pancham made complaint dated May, 27,
1967 to the Judicial Panchayat in that connection. The said complaint was still
pending when the present occurrence took place. About three days prior to the
present occurrence Barati and Prabhu accused after arming themselves with
lathis went to the door of Lekhai and Threatened to assault him. Mainku PW intervened
and persuaded Barati and Prabhu to go away.
On the evening of July 30, 1967, it is
stated, Lekhai deceased after taking his meals was lying on a cot in an open
space near his baithak. Lekhai's son Nagai (PW 1) and brother Pancham (PW 3)
slept nearby on another cot. A lighted lantern was hanging nearby. At about
10.30 p.m. the three accused came there. On hearing some sound, Lekhai opened
his eyes. Lekhai saw the three accused standing near the cot. Ram Lal accused
is the brother-in-law of Barati accused. At the instigation of Ram Lal and
Prabhu, it is stated, Barati accused, who was holding a bottle, poured acid
over Lekhai. Lekhai cried aloud and shouted that he was being killed. On
hearing the cries of Lekhai, his son Nagai and brother Pancham got up from
their cot and saw the three accused standing there. Barati accused was holding
a bottle in his hand. Nagai and Pancham too raised alarm whereupon 572 Bhallu
(PW 2) and Jeorakhan (PW 4), whose houses are nearby, also arrived there with
lighted torches and lathis in their hands. On seeing them, the three accused
ran into the house of Barati and closed the door from inside. Nagai and others
chased the accused and knocked at the door of the house but the accused did not
open the door. Nagai, Pancham, Bhallu and Jeorakhan were told by Lekhai that
Barati accused had poured acid over him. Badri Pradhan (PW 6) also came there
and on his enquiry he too was told by Lekhai that Barati accused had poured
acid over him. Nagai, Pancham, Bhallu, Jeorakhan and Badri Pradhan PWs saw acid
present all over the body of Lekhai deceased. His clothes too were stained with
acid. At the suggestion of Badri, Lekhai was then taken in a bullock cart by
Nagai and Pancham PWs to police station Sandhana at a distance of two miles from
the place of occurrence. Report Ka 1 was lodged at the police station at 2.30
a.m. by Lekhai. In that report Lekhai stated that Barati accused had poured
acid over his body. The names of Nagai, Pancham, Bhallu and Jeorakhan were also
mentioned in the first information report and it was stated that they had seen
the accused present near his cot when Lekhai had raised alarm. The motive for
the assault, as given earlier, was also given.
After recording the first information report,
Sub Inspector Asrarul Haq (PW 18) recorded statement Ka 22 of Lekhai. In that
statement Lekhai reiterated what he had stated in the first information report.
The Sub Inspector thereafter recorded the statements of Nagai and Bhallu PWs.
Lekhai was then sent to Misrikh dispensary at a distance of about 12 miles from
the place of occurrence. The party arrived at the dispensary at about 3 p.m. on
July 31, 1967. Soon thereafter Dr. Bisht (PW 5) recorded statement Ka II at 3
p.m. of Lekhai deceased. Lekhai was at that time in a fit condition to make
statement. In that statement also Lekhai stated that Barati accused had poured
acid over his body and as such had caused him injuries. The injuries of Lekhai
were examined by Dr. Bisht at 3 .15 p.m.
As the condition of Lekhai was serious, Dr.
Bisht referred the case of Lekhai to District Hospital Sitapur. Lekhai was then
taken to the District Hospital Sitapur. The party arrived in the hospital at
about 4 45 p.m. the same day but about an hour thereafter at 5 .45 p.m. Lekhai
succumbed to the injuries. Post mortem examination on the body of Lekhai was
performed by Dr. N. Verma on the following day, i.e. August 1, 1967, at 4 pm.
Barati accused absconded after the
occurrence. Proceedings under sections, 87 and 88 of the Code of Criminal
Procedure were initiated against him. Barati surrendered in court on August 17,
1967. He was thereafter put under arrest.
At the trial the plea of Barati accused, with
whom we are concerned was denial simpliciter. No evidence was produced in
The trial court did not place reliance upon
the evidence of Nagai, Pancham, Bhallu and Jeorakhan PWs. The reason which
weighed 573 with the trial court was that the witnesses were related to the
deceased. The evidence with regard to the dying declarations of the deceased
was not accepted by the trial court. The deceased, in the opinion of the trial
court, became unconscious and as such was not in a position to lodge first
information report Ka 1 or to make statement Ka
22. The trial court also rejected dying
declaration Ka II recorded by Dr. Bisht as it found the language of the same to
be chaste and the same, in the opinion of the trial court, was not expected of
a rustic living in a village. In the result the accused were acquitted.
On appeal the learned Judges of the High
Court accepted the evidence of Nagai, Pancham, Bhallu and Jeorakhan PWs as well
as the evidence about the dying declarations made by the deceased. The High
Court also took note of the fact that Barati accused had a motive to assault
the deceased and that when witnesses knocked at his door, he instead of
professing his innocence, did not open the door. Reference was also made to the
fact that Barati accused had absconded after the occurrence. In the result the
appeal against Barati accused was accepted, and he was convicted and sentenced
So far as Ram Lal and Prabhu accused were
concerned, the High Court gave them the benefit of doubt and as such acquitted
In appeal before us Mr. Mulla on behalf of
the appellant has urged that the High Court should not have reversed the
judgment of acquittal of the trial court in respect of the appellant. According
to the learned counsel, the evidence relied upon by the High Court is not
satisfactory and as such the conviction of the appellant cannot be based upon
it. In reply Mr. Rana has canvassed for the correctness of the view of the High
It cannot be disputed that acid was poured on
Lekhai deceased on the night of July 30, 1967 as a result of which he died. Dr.
Bisht, who examined Lekhai deceased on July 31, 1967 at 3 .15 p.m., found the
following injuries on his person :
"Burnt area of black colour on the left
side of the face, on both sides of the neck, on the front part of the whole
chest, on the right arm, right fore-arm, and back part of right palm on the
front and back part of both shoulders." Dr. Bisht also found black marks
caused by running down of fluid on the front and outer part of abdomen and on
the vertebral column. Burnt areas of black colour were found by the doctor on
the front and inner part of right thigh, inner and upper Part of right leg and
inner part of the left thigh in- the middle. The injuries, in the opinion of
the doctor, were previous and were caused by acid in liquid form. The injuries
were about 12 to 24 hours old.
Lekhai died at 5 .45 p.m. on July 31, 1907.
Dr N. Verma who performed the post mortem examination on the body of Lekhai on
August 1, 1967 at 4 p.m. found the following injuries on the body 574
"1.Corrosive burns area. There were marks of acid,on the left side of the
face, in front and both sides of the neck, in front of the chest and in front,
up and back side of the shoulders ; upper side and in-front of the right arm
and in front and in several places of the other arm. In front and outer side of
right thigh and in front inside of left shoulder, in front and down part of the
right leg and both sides of the back. The marks on account of pouring of acid
existed on the left side of the-face, and also existed on both sides of the
chest, abdomen, and shoulders, the inner part of the skin and flesh of front of
the chest, neck, side and several places became discolored by the action of
acid. Injuries were on account of corrosion burns which were upto III, IV, V
degree." On internal inspection the brain and thin skin cover were found
to be congested. The same was the condition of the longs, larynx, trachea and
bones. The heart was full of blood, while the stomach was empty. Death, in the
opinion of the doctor, was due to shock as a result of the pouring of acid. The
injuries were sufficient to cause death in the ordinary course of nature.
The case of the prosecution is that it was
Barati accused who poured acid over Lekhai deceased as a result of which Lekhai
died. In support of this allegation, the prosecution has relied, in the first
instance, upon the four dying declarations of Lekhai deceased. The first dying
declaration of the deceased was the one made by him to Nagai, Pancham, Bhallu
and Jeorakhan immediately after the occurrence. It is in the evidence of these
witnesses that they were told immediately after the occurrence that it was
Barati accused who, had poured acid over him. There appears to be no cogent
reason to disbelieve the above evidence of the witnesses. The trial court, in
our opinion, was wholly in error in rejecting the evidence of these witnesses
on the ground that they were related to the deceased. Close relatives of the
deceased would normally be most reluctant to spare the real assailant and
falsely mention the name of another person as the one responsible for causing
injuries to the deceased. Lekhai deceased also told Badri Pradhan (PW 6) who
arrived at the place of occurrence on hearing alarm that Barati accused had
poured acid over him. No cogent ground has been shown as to Why the above
evidence of Badri Pradhan be not accepted. All that was suggested on behalf of
the accused was that Badri was inimical to Prabhu accused. If that was so, no
reason has been shown as to why Badri should attribute the major part in the
assault on the deceased to Barati accused and not to Prabhu.
It is also plain that Lekhai deceased must
have seen as to who was the person who poured acid over his body. The moment
the acid first came in contact with his body, the immediate reaction of Lekhai,
as of any other person, would be to see as to who was responsible for all that.
Even if the assailant took only a few seconds to pour acid over the body of
Lekhai, the latter would not have failed to fix the identity of the assailant
during that short time. It is significant that Barati was no stranger to
Lekhai. They were neighbours and were well known to each other. it is, in our
opinion, most difficult 575 to believe that Lekhai would spare his real
assailant and falsely mention the name of Barati as one who had poured acid
over his body.
Apart from the oral dying declarations made
by the deceased to Nagai, Pancham, Bhallu, Jeorakhan and Badri Pradhan PWs,
we-have the evidence of Sub Inspector Asrarul Haq that the deceased lodged
report Ka 1 at the police station at 2.30 a.m. when the deceased was brought
there in a cart. The deceased stated in that report that Barati accused had
poured acid over him and thus caused him injuries. Sub- Inspector, Asrarul Haq
thereafter recorded statement Ka 22 of Lekhai, deceased. In that statement also
the deceased reiterated that it was Barati accused who had poured acid over him
and thus caused him injuries. We see no particular reason to disbelieve the
evidence adduced by the prosecution regarding the dying declaration of Lekhai
deceased contained in report Ka 1 and statement Ka 22. The trial court reacted
the above evidence because it was of the view that Lekhai deceased, as
mentioned by him in dying declaration Ka 1 made to Dr. Bisht, had become
unconscious after the occurrence.
There was, however, nothing in that statement
to indicate that Lekhai remained unconscious for a long time and as such was
not in a position to lodge the first information report at the police station
or make statement Ka 22 to Sub Inspector Asrarul Haq. The view taken by the
trial court in rejecting the above evidence, in our opinion, was clearly
Another dying declaration upon which
prosecution has placed reliance was Ka 11 recorded by Dr. Bisht in Misrikh
dispensary According to Dr. Bisht, Lekhai was in possession of his senses when
he made statement Ka 11. Dr. Bisht is a wholly disinterested and respectable
witness and there appears no reason as to why his statement regarding the dying
declaration Ka 11 be not accepted. Dying declaration Ka 11 is a brief document
consisting of about 9 or 10 lines.
The statement incorporated in dying
declaration Ka 11 is very simple and relates to the pouring of acid by Barati
accused on Lekhai deceased. The fact that the language used in it is rather
chaste would not go to show that the said statement could not have been made by
Lekhai deceased. The statement of Lekhai in Ex. Ka 11 that Barati accused had
poured the liquid from a bottle on him clearly establishes the guilt of Barati
Reference was made on behalf of the accused
to the fact that statement Ka 11 was sent by Dr. Bisht to Additional District
Magistrate not immediately after recording that statement but on the third day.
According to Dr. Bisht, the delay took place because of rush of work. No adverse
inference, in our opinion, can be drawn from the fact that the dying
declaration was sent by Dr. Bisht on the third day after recording the same.
The dying declaration bears the thumb impression of Lekhai deceased. Lekhai was
sent from Misrikh dispensary soon after the dying declaration was recorded and
his injuries were examined. There could be no possibility of any such dying
declaration being prepared subsequently.
576 Mr. Mulla has pointed out that the
language used in dying declaration Kall is chaste while that used in report Ka
1 as well as in statement Ka 22 has some words which are spoken by villagers.
This fact, in our opinion, is not of much significance because there is nothing
abnormal or unusual in the same person using colloquial language while talking
to one person and using refined language while talking to another person.
Apart from the dying declaration& of the
deceased, we have the evidence of Nagai, Pancham, Bhallu and Jeorakhan PWs that
they saw Barati accused with a bottle in his hand near the cot of the deceased
when those witnesses got up on hearing alarm. The High Court accepted the
evidence of these witnesses and we see no particular reason to take a different
view. As mentioned earlier, the reason given by the trial court in rejecting
the evidence of these witnesses was wholly erroneous.
It is well settled that the High Court in an
appeal under section 417 of the Code of Criminal Procedure 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 it be found
expressly stated 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, 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 real
and reasonable 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. Keeping the above principles in view as well as the fact that the
approach of the trial court was clearly unreasonable, the High Court, in our
opinion, was fully justified in setting aside the acquittal of Barati accused.
There is, in our opinion, no force in the
appeal which fails and is dismissed.