Ram Kumar Pande Vs. The State of
Madhya Pradesh  INSC 29 (11 February 1975)
BEG, M. HAMEEDULLAH BEG, M. HAMEEDULLAH
CITATION: 1975 AIR 1026 1975 SCR (3) 519 1975
SCC (3) 815
CITATOR INFO :
D 1981 SC1036 (9) R 1992 SC 891 (16,18,19)
Criminal trial--High Court interfering with
acquittal by trial court--When Supreme Court can interfere with decision of
Evidence Act (1 of 1872) s. 11, Scope of.
Supreme Court (Enlargement of Criminal
Appellate Jurisdiction) Act, 1970--Acquittal set aside and sentence of life
imprisonment imposed--Certificate of High Court for appealing to Supreme Court
The appellant was charged with two offences,
(i) under s. 307 I.P.C. with respect to one person, and (ii) under s. 302/34,
I.P.C. for having, along with other accused, caused the death of another. The
trial court convicted him under s.324 I.P.C. on the first charge and acquitted
him of the other charge. The appeal by the State against the acquittal on the
second charge was allowed by the High Court and the appellant was convicted
under s.302/34 I.P.C. and sentenced to life imprisonment.
Allowing the appeal to this Court,
HELD : (1) In the case of an appeal against
an acquittal the appellate court should not interfere with the acquittal merely
because it can take one of the two reasonably possible views which favours
conviction. But if the view of the trial court is not reasonably sustainable,
on the evidence on record. the appellate court will interfere with the
acquittal. If the High Court sets aside an acquittal and convicts, this Court
has to be satisfied, after examining the prosecution and defence cases, and the
crucial points emerging for decision from the facts of--the case, that the view
taken by the trial court, on the evidence on record, is at least as acceptable
as the one taken by the High Court, before this Court could interfere with the
decision of the High Court. [521D] (a) The First Information Report is a
previous statement which, strictly speaking, can be only used to corroborate or
contradict the maker of it. In the present case, the F.I.R.
was made by the father of the deceased to
whom all the important facts of the occurrence were bound to have been
communicated. But, though the F.I.R. was given about 4 hours after the
incident, it was not mentioned therein that the appellant had stabbed the
deceased. The omission of such an important fact affecting the probabilities of
the case is relevant under s.11 of the Evidence Act in judging the veracity of
the prosecution case. [522D] (b) The evidence, shows that the deceased was
stabbed by one or the other accused; that the place of occurrence had been
shifted by the witnesses for the prosecution; that the version of the alleged
eye witnesses is not credible; and that the alleged dying declaration is
unreliable. [524B-D] (2) The High Court, having found that the appellant and
the other accused were individually responsible for their acts, erred in
finding the appellants guilty on the basis of common intention, of an offense
under s. 302/34 I.P.C.
[524FG] (3) An appeal to this Court by the
accused, in a case where his acquittal had been converted into a conviction and
the sentence of life imprisonment was imposed upon him, lies as a matter of
right under the Supreme Court (Enlargement of Criminal Appellate Jurisdiction)
Act, 1970, and no certificate of the High Court is necessary. [521A]
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 12 of 1972.
From the Judgment and Order dated the 1st
May, 1971 of the Madhya Pradesh High Court in Crl. Appeal No. 653 of 1970.
2-470SCI/75 520 R. K. Bhatt for the appellant.
Ram Punjwani, H. S. Parihar and 1. N. Shroff,
for the respondent.
The, Judgment of the Court was delivered by
BEG, J. The sole appellant Ram Kumar Pandey, aged 45 years, was tried together
with Suresh Kumar aged 20. years, and Mulkraj, aged 45 years, and Ramesh Kumar,
aged 17 years, on two charges framed against him. These were :
"Firstly; That you on or about the 23rd
day of March 1970 at Raipur, did an act, to wit, hit Uttam Singh with a knife
with such intention or. knowledge and under such circumstances, that if by that
act, you had caused the death of Uttam Singh you would have been guilty of
murder and that you caused grievous hurt to Uttam Singh by the said act and
that you thereby committed an offence, punishable under Section 307 I.P.C. and;
Secondly : That at the said time and place,
you or some other persons did commit murder by intentionally or knowingly
causing the death of Harbinger Singh and the said act was done in furtherance
of the common intention of all and thereby committed an offence punishable
under Section 302 read with Section 34 of the Indian Penal Code and within the
cognizance of the Court of Sessions." Suresh Kumar, Mulkraj and Ramesh
Kumar, were accused of ,offences punishable under Sections 307/114 and Section
302 read with Section 34 and 114 Indian Penal Code. The Sessions' Judge of
Raipur, who had tried the case, found Suresh Kumar guilty of the murder by
stabbing of Harbinder Singh, aged about 16 years, and sentenced him to life
imprisonment. He convicted the appellant under Section 324 I.P.C. only for the
injury inflicted on Uttam Singh and sentenced him to one year's rigorous
imprisonment, but acquitted him of other charges. He also acquitted the accused
Ramesh and Mulkraj of all charges leveled against him.
The State of Madhya Pradesh appealed against
the acquittal of the appellant Ram Kumar Pandey of the charge under Section
302/34 I.P.C., and of Mulkraj and Ramesh Kumar of all charges. Suresh Kumar,
the son of Mulkraj appealed against his conviction under Section 302
simplicitor, but this appeal was dismissed by the High Court which maintained
his life imprisonment. The High Court also allowed the States appeal against
the acquittal of Ram Kumar Pandey for injuries caused to Harbinder Singh, and,
convicting him under Section 302/34 I.P.C., it sentenced him- to life
imprisonment. It convicted Mulkraj of an offence punishable only under Section
323 I.P.C. and sentenced him to a fine of Rs. 200/-, and, in default of payment
of fine, to rigorous imprisonment for two months. It, upheld the acquittal of
Ramesh Kumar Ahuja of all charges.
This appeal has come up before us after a
certificate granted by the High Court under Article 134(1) (c) of the
Constitution, but the 521 certificate says that the appellant is entitled to it
under the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act,
1970, strictly speaking, no certificate of the High Court is required for such
an appeal where an acquittal has been converted into a conviction finder
Section 302/34 I.P.C., and a sentence of life imprisonment imposed upon an
accused person. Thus appeal, in such a case, lies as a matter of right to this
Court under the Act of 1970.
The only question before us now is whether
the appellant, who had not appealed at all to the High Court against his
conviction under Section 324 I.P.C., which stands, was rightly convicted by the
High Court under Section 302/34, I.P.C., after setting aside his acquittal for
the graver offence for injuries resulting in the death of Harbinder Singh.
The well settled rule of practice in a case
of an appeal against an acquittal is that the appellate Court should not
interfere with the acquittal merely because it can take one of the two
reasonably possible views which favours conviction. But, if the view of the
Trial Court is not reasonably sustainable, on the evidence on record, the
appellate Court will interfere with an acquittal. If the Appellate Court sets
aside an acquittal and convicts, we have to be satisfied, after examining the
prosecution and defence cases, and the crucial points emerging for decision
from the facts of the case, that the view taken by the Trial Court, on evidence
on record, is at least as acceptable as the one taken by the High Court, before
we could interfere with the High Court's judgment.
The prosecution case, as set out in the First
Information Report was ; Uttam Singh, PW 1, residing at Ganj Parao, on the
first floor went home at about 3.30 p.m. on 23-3-1970 and was preparing to have
a bath when Suresh Ahuja came down from an upper storey of the house and
complained that Uttam Singh had been quarreling with members of his family.
Uttam Singh requested him to take his seat and promised to look into the
matter. This angered Suresh Ahuja. Thereafter, his, elder brother arrived and
started quarreling with Uttam Singh's daughter. At this stage, the landlord
Mulkraj Ahuja, accompanied by the appellant Ram Kumar Pandey, who lives with
his family in a side room on the ground floor, entered and immediately gave him
a blow on his eye-,brow.
Uttam Singh fell down. As Uttam Singh got up,
the appellant struck him with a knife from behind. Mukhraj asked Pandey to run
down-stairs. Both the accused tried to run away.
Uttam Singh tried to catch them but failed.
Uttam Singh when asked his son Harbinder Singh to make a telephone call.
At this point, Suresh, son of Mulkraj,
stabbed Harbinder Singh who fell down in the lane. Uttam Singh saw Harbinder
Singh lying near the house of Saudager Shah with an injury on his chest which
was bleeding profusely. Harbinder Singh was carried to a hospital on a cart and
Gurcharan Singh telephoned the police. Joginder Singh also came while the
injuries were being inflicted. Uttam Singh's daughters Amarit Kaur and Taranjit
Kaur saw Uttam Singh wrapping a chadar an the wound of Harbinder Singh. Raj
Jaggi had seen Harbinder 522 Singh falling down. The motive for this incident
was that Mulkraj Ahuja, the landlord, wanted his house vacated by Uttam Singh.
Harbinder Singh had died while being taken to hospital.
The above mentioned First information Report
was lodged at Police Station Ganj on 23-3-1970 at 9.15 p.m. The time of this
incident is stated to be 5 p.m. The only person mentioned as an eye witness to
the murder of Harbinder Singh is Joginder Singh. The two daughters Taranjit
Kaur, PW 2, and Amarjit Kaur, PW 6, are mentioned in the F.I.R. only as persons
who saw the wrapping of the chadar on the wound of Harbinder Singh, What is
most significant is that it is nowhere mentioned in the F.I.R. that the
appellant had stabbed Harbinder Singh at all. It seems inconceivable that by
9.15 p.m. it would not be known to Uttam Singh, the father of Harbinder Singh,
that the appellant had inflicted one of the two stab wounds on the body of
No doubt, an F.I.R. is a previous statement
which can, strictly speaking, be only used to corroborate or contradict the
maker of it. But, in this case, it had been made by the father of the murdered
boy to whom all the important facts of the occurrence, so far as they were,
known up to 9.15 p.m. on 23-3-1970, were bound to have been communicated. If
his daughters had seen the appellant inflicting a blow' on Harbinder Singh, the
father would certainly have mentioned it in the F.I.R. We think that or
missions of such important facts, affecting the probabilities of the case, are
relevant under Section 11 of the Evidence Act in judging the veracity of the
Even Joginder Singh, PW 8, was not an eye
witness of the, occurrence. He merely proves an alleged dying declaration.
He stated that Harbinder Singh (described by
his pet name as "Pappi") rushed out of his house by opening its door,
and held his hand on his chest with blood flowing down from it.
He deposed that, when he asked Pappi what had
happened, Pappi had stated that Suresh and Pandey had injured him. It is clear
from the F.I.R. that Joginder Singh had met Uttam Singh before the F.I.R. was
made. Uttam Singh did not mention there that any dying declaration indicating
that the appellant had also injured Harbinder Singh. was made by Harbinder
Singh. The omission to mention any injury inflicted on Harbinder Singh by the
appellant in the F.I.R.
seems very significant in the circumstances
of this case.
Indeed, according to the version in the
F.I.R., Joginder Singh, who was in the lane, is said to have arrived while
Harbinder Singh was being injured. Therefore, if this was correct, the two
injuries on Harbinder Singh must also have been inflicted in the lane outside.
Satwant Kaur, PW 7, the wife of Uttam Singh,
who claimed to have been an eye witness of the whole occurrence, was also not
mentioned in the F.I.R. Suresh had, according to her, stabbed Harbinder Singh
on the right side of the chest at the door of the kitchen, and thereafter,
Pandey was said to have attacked him.
523 Again, we find that Taranjit Kaur, PW 2,
and Amarjit Kaur, PW 6, daughters of Uttam Singh, have figured as eye witnesses
of the whole occurrence including the stabbing of Harbinder Singh by the
appellant. As already indicated, they are not mentioned in the F.I.R. as eye
witnesses of the murder. This is also very significant in the present case.
They have been mentioned only as witnesses of
wrapping a chadar on the wound of Harbinder Singh who was then said to be lying
in the lane after the occurrence.
In order to explain how Harbinder Singh, said
to have been attacked near the kitchen of Uttam Singh on the first floor, was
found lying in the lane in a pool of blood, the persecution version is that,
after the attack with knives by Suresh and the appellant, Harbinder Singh ran
and rushed down the steps into the lane. It was pointed out that, in view of
the nature of two injuries sustained, by Harbinder Singh and the medical
evidence about them, it was not possible for Harbinder Singh either to have
rushed down, or, in any case, to have made a dying declaration. The injuries on
Harbinder Singh found by Dr. S. C. Vishnoi were as follows :
"(i) An incised wound on the left side
of the chest placed anteriorly and measuring 1-1/2" x 1" x
1-1/2" deep. In the fifth intercostal space-closed to the lateral border
of the left side of the sternum. It had clean cut and blood stains margins.
(ii) An incised wound on the right side of
back in the 8th intercostal space 2" below the inferior angle of scapula.
It had measured 1" x 1" x 1". It had clean cut and bloodstains
margins. There was found difficulty in probing through this wound".
The Doctor said about the first injury
"This injury had entered the cavity of the right ventrical. It was a very
serious injury. Right ventrical is an important part of the heart. Generally
such an injury would result in an instantaneous death. Injury to the right
ventrical and the paricardium had resulted in profused hemorrhage".
He also said :
Injury to the lobe of the right lung and the
pleura as found in this case will result in shock. Ordinarily such a injury
would immediately be fatal".
The main points for decision which emerged
from the evidence in the case were:
1. Where was Harbinder Singh stabbed?
2. Who could have been the witness of the
3. Could the alleged eye witnesses be
4. Could the dying declaration, said to have
been made, to 524 Joginder Singh, be made the sole basis of the conviction of
the appellant under section 302/34 IPC if the evidence ,of alleged eye
witnesses was to be discarded? As regards the place where the stabbing' took place,
the High Court had itself felt highly dissatisfied with the manner in which the
case was investigated. The site plans do not show any place where the blood was
found. if blood marks had been shown and blood had been taken from spots where
it had fallen, it would have afforded very valuable evidence on the question
whether any stabbing of Harbinder Singh did take place at door of the kitchen
and whether he ran after that.
The site plans did not show even where the
Therefore, we cannot know, by looking at
these, whether the three ladies, who are alleged to be eye witnesses at the
trial, could have seen the occurrence in the room in which Uttam Singh was
injured as well as at the door of the kitchen. Taking all the relevant evidence
on this point into account, it is far 'more likely that, as the Sessions' Judge
had guessed, the deceased had been stabbed by Suresh twice in the lane,
probably once from the front and again while he fell or was trying to run away.
He could not have moved far from the scene where he was stabbed. The High
Court's reasons to dislodge this inference are insufficient.
As regards the second and third points, we
are unable to give credence to the version of the three alleged eye witnesses
as they were not mentioned as eye witnesses in the F.I.R. made in the
circumstances indicated above.
Lastly, the alleged dying declaration is also
not mentioned in the F.I.R. On the other hand, the F.I.R., mentions Joginder
Singh, who tried to prove the dying declaration as an eye witness.
It may be pointed out that the charge against
the appellant for offences under Section 302/34 I.P.C. is also defective
inasmuch as it shows that either the appellant "or some other person"
committed the murder. It does not show how or even mention that the appellant
acted in concert with anyone else. However, no grievance has been made of any
defect in the charge or any prejudice to the appellant from it. We therefore,
It may also be mentioned that the High Court
had itself recorded the following finding:
"All the eye-witnesses have admitted
that the four accused did not come together ;it the same time in the room where
the incident happened. Suresh Kumar came in that room first, Ramesh Kumar then
entered the room and sometime after they were followed by Mulkraj and Ram Kumar
Pandey. There is nothing to show that there was a preconcert between the four
accused to commit any particular offence in the room. It appears that the whole
incident took an ugly and unexpected turn and the most unfortunate result 525
was that Harbinder Singh was killed. We are of the view that the trial Court
was right in reaching the conclusion that Ram Kumar Pandey and Suresh Kumar
were individually responsible for their acts".
It is difficult, after this finding to follow
the reasoning of the High Court in coming to the conclusion that the appellant
was guilty of an offence punishable under Section 302/34 I.P.C.
Consequently, we allow this appeal and set
aside the conviction and sentence of the appellant under Section 302/34 I.P.C.
If the appellant has already served the sentence awarded under Section 324
I.P.C., as is stated on his behalf, he will be released forthwith.
V.M.K. Appeal allowed.