State of U.P. Vs. Ashok Kumar & ANR
[1979] INSC 26 (2 February 1979)
FAZALALI, SYED MURTAZA FAZALALI, SYED MURTAZA
KOSHAL, A.D.
CITATION: 1979 AIR 874 1979 SCR (3) 1 1979
SCC (3) 1
CITATOR INFO :
F 1989 SC1205 (18)
ACT:
Penal Code-s. 302-Supreme Court-When would
interfere with order of acquittal in special leave-Witnesses claimed they
identified the assailant from a distance of 150 yards on a moonlight night-If
could be believed.
HEADNOTE:
The respondents were charged with an offence
under s. 302, I.P.C. The prosecution case was that on the night of occurrence
(which was a moonlight night) the deceased and the prosecution witnesses
attended a drama in the Ramlila Grounds of the village and when the deceased,
after taking two samosas and tea, was returning home some time past midnight,
the respondents shot him dead and that this was seen by them from a distance of
150 yards from the scene of occurrence.
The trial court, believing the prosecution
version, convicted the respondents. On appeal the High Court rejected the
prosecution story and acquitted both the respondents.
The State came in appeal to this Court by
special leave.
Dismissing the appeal,
HELD: It is well-settled that this Court, in
special leave, would not normally interfere with an order of acquittal unless
there are cogent reasons for doing so or unless there is a gross violation of
any procedure of law which results in serious miscarriage of justice. [2H]
Having regard to the glaring defects in the prosecution story this is not a case
in which this Court should interefere with the order of acquittal. [3B] In the
present case, though it was a moon-lit night according to the almanac the moon
would have covered three- fourths distance on the night of occurrence. Even in
the moonlight it would have been difficult for the witnesses to identify the
assailants; even if they did, the possibility of mistake in identification
could not be completely excluded. According to an authority, when the moon is
at the quarter, it is possible to recognise persons at a distance of from 21
ft; in bright moonlight at from a distance of 23 to 33 ft. and at the very
brightest period of the full moon at a distance of from 33 to 36 ft. In
tropical countries the distance for moonlight may be increased. Therefore, it
would not have been possible for the eye witnesses to identify the assailants
from a distance of 150 yards. [3E-G] After the assailants had given a call and
fired at the deceased the witnesses would not have flashed the torch light, as
suggested by the prosecution, and exposed themselves to the risk of being shot
at. Even if the torches were lighted, in view of the distance, it would not
have been possible for the witnesses to identify the assailants with certainty.
[4B] Secondly, the medical evidence had shown that the stomach of the deceased
was empty and the large intestines too were empty. Therefore, the evidence 2 of
the witnesses that the deceased took two samosas after the drama at midnight
and before the attack is completely falsified by medical evidence. Another
prosecution witness stated that the deceased having had stomach ulcers never
took any food at night. Apparently until the deposition of the first witness
was complete the prosecution did not realise the gravity of the statement made
by him and deliberately introduced a change on a vital issue which by itself is
an important circumstance throwing doubt on the prosecution case. While
witnesses may lie, circumstances would never. Tho evidence of the doctor, based
on conclusive evidence cannot be belied. [4F-H]
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 166 Of 1976.
Appeal by Special Leave from the Judgment and
Order dated 21-4-75 of the Allahabad High Court in Criminal Appeal No. 2776 74
and Referred No. 76/74.
D. P. Uniyal, and M. V. Goswami for the
Appellant.
D. Mookherjee, O. P. Tewari, S. S. Srivastava
and K. C. Jain, for Respondent No. 1.
R. K. Garg, V. J. Francis and D. K. Garg for
Respondent No. 2.
The Judgment of the Court was delivered by
FAZAL ALI J.-The respondents had been convicted by the Additional Sessions
Judge, Banda under section 302 of Indian Penal Code and sentenced to
imprisonment for life. The respondents thereafter filed an appeal to the High
Court of Allahabad which after a full and complete consideration of the
evidence came to a finding of fact that the prosecution has not proved its case
and accordingly acquitted the respondents. The High Court rejected the
prosecution case mainly on two grounds. In the first place, it held that having
regard to the circumstances and the distance from which the witnesses saw the
accused, it was difficult for them to identify the accused. Secondly, the High
Court found that in view of the medical evidence which showed that the large
intestines of the stomach were absolutely empty, the evidence of the
eye-witnesses could not be believed. Against the order of acquittal passed by
the High Court the State came up to this Court by special leave and after
obtaining the same the case has been placed before us for hearing.
The facts of the case have been set out in
the judgment of the High Court and it is not necessary for us to repeat them
again. It is well settled that this Court would not normally interfere with an
order of acquittal in special leave unless there are cogent reasons for doing
so or unless there is a gross violation of any procedure of law which results
in serious miscarriage of justice. We have heard 3 counsel for the parties and
have gone through the judgment of the Sessions Judge and of the High Court. It
is true that High Court has not made an attempt to discuss the intrinsic merits
of the evidence of the eye-witnesses but having regard to the glaring defects
appearing in the prosecution case we are in agreement with the ultimate view
taken by the High Court.
According to the prosecution the deceased
along with P.Ws. 1 & 2 had gone to Atarra to witness a drama in the Ramlila
Grounds. The party reached Atarra at about 9 o'clock and the drama finished at
about 12 o'clock. Baura and Chanada P.Ws. 2 and 5 were also with the deceased
Budhi Bilas when he was returning from the Natak. It is alleged that at about
12.30 a.m. the respondent-Ashok Kumar fired a few shots which hit the deceased
as a result of which he died instantaneously. The two eye-witnesses P.Ws. 1 and
2 admittedly saw the firing from a distance of about 150 yards, as would appear
from an examination of the site plan Ka-23 and which is endorsed by P.W. 1 who
stated in his evidence that he has given the detail of the place from where
they saw the occurrence to the Investigating Officer at the spot. The first
question which falls for consideration is as to whether or not the witnesses
would be in a position to identify the respondents from such a large distance
at night. It is true that it was a moon-lit night but from a reference to the
almanac it would appear that the moon had covered 3/4th distance on the night
of occurrence and was to set at 3.23 a.m. Even though there may be some moon
light at that night, it is difficult for the witnesses to identify the
respondents or even if they did the possibility of mistake in identification
cannot be completely excluded. In this connection, we may refer with advantage
to the following passage appearing in Dr. Hans Gross's Criminal Investigation
at page 185:
"By moonlight one can recognise, when
the moon is at the quarter, persons at a distance of from 21 feet, in bright
moonlight at from 23 to 33 feet; and at the very brightest period of the full
moon, at a distance of from 33 to 36 feet. In tropical countries the distances
for moonlight may be increased." The opinion of Gross referred to above
fully fortifies our conclusions that it was not possible for the witnesses to
have identified the respondents even in moonlight from a distance of about 150
yards. In these circumstances, therefore, the High Court was fully justified in
holding that it was not possible for the eye-witnesses to identify the
respondents from such a long distance on the night of the 4 occurrence. The
prosecution suggested that the witnesses had lighted their torches and it was
in the light of torches coupled with moon light that identification was
possible. In the first place, we find it difficult to believe that after Ashok
Kumar had given a call and fired, the witnesses would dare to flash the torch
light and expose themselves to the risk of being shot themselves. Secondly,
even if torches were lighted, in view of the large distance, it would not be
possible for the witnesses to identify the respondents with absolute certainty.
Another important circumstance which appears
to clinch the issue is the medical evidence in the case. It appears from the
evidence of Dr. Pillay, P. W. 7 who performed the post-mortem that the small
intestines were distended with gas and in the end of the small intestines liquid
faeces was present. The doctor further says that large intestines were empty.
Doctor also found the stomach to be empty. These facts are also mentioned in
the post-mortem report. This clearly shows that the deceased must have been
shot at a time when he had either not taken any food at all or the entire food
if taken was fully digested and left the stomach. P.W.1 had stated in his
evidence that he along with his uncles and the deceased took tea and ate
samosas. The deceased had taken two samosas. This meal was taken by the
deceased and the witnesses after the Natak ended, that is to say, at about 12
O'clock in the night, because the evidence of P.W.1 is that the Natak started
at 9 p.m. and continued for three hours. If the evidence of this witness is believed,
then it is completely falsified by the medical evidence which shows that the
stomach was empty. In other words, if the witness is believed, the position
would be that the deceased would have been shot only a few minutes after he had
taken two samosas and a cup of tea. In that case the stomach would not be
empty. Perhaps realising this difficulty the prosecution through the mouth of
P. Ws. 2 and 3 tried to effect a deliberate embellishment in their evidence by
making them depose that the deceased Budhi Bilas had taken only milk when he
started. P.W. 3 goes to the extent of saying that deceased Budhi Bilas was
suffering from stomach ulcers and he never took any food at night. The story of
the deceased having taken samosas is given a complete go-back by other
eye-witness, P.W. 2. Indeed, if these witnesses were present at the time when
the deceased has taken something we should not have expected any discrepancy of
this kind on this important aspect of the matter. Either deceased took food or
he did not take any food. This fact would be known to his son, P.W. 1 and also
to P.W. 2. We cannot understand what is the explanation for the two different
versions given by P.Ws. 1 & 2 unless the idea 5 was to bring the evidence,
at least, of P.W. 2 in tune with the medical evidence. Until the deposition of
P.W. 1 was complete, the prosecution did not realise the gravity of the
statement made by P.W. 1 that the deceased has taken two samosas and a cup of
tea shortly before the occurrence. This deliberate attempt to introduce a
change on a vital issue is by itself a very important circumstance which throws
doubt on the prosecution case. It is manifest that whereas witness may lie
circumstances never lie. The evidence of the doctor is based on conclusive
circumstantial evidence which cannot be belied, and therefore an attempt has
been made by the prosecution to introduce improvements in explaining the lacuna
present in the case. Apart from this we have gone through the evidence of P.Ws.
I & 2 and their evidence also is full of discrepancies as pointed out by
the High Court.
Taking therefore an overall view of the
picture, we hold that this is not a case in which we should interfere with the
order of acquittal passed by the High Court.
For the reasons given above, we confirm the
order of the High Court and dismiss this appeal. The respondent No. 1 who is in
jail is directed to be released forthwith and respondent No. 2 will be
discharged from his bail bonds.
P.B.R. Appeal dismissed.
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