Babu Ram & Ors Vs. State of Uttar
Pradesh  INSC 10 (1 February 1983)
MISRA, R.B. (J) MISRA, R.B. (J)
VENKATARAMIAH, E.S. (J)
CITATION: 1983 AIR 308 1983 SCR (2) 328 1983
SCC (2) 21 1983 SCALE (1)105
Appeal against acquittal-Interference by the
High Court-If two views about a particular circumstance are possible,
interference by the High Court with the conclusions arrived at by the Sessions
Court is not permissible unless the conclusions were not possible- Criminal
Procedure Code, 1973, Section 378-Evidence Act (1 of 1872), Section
3-Appreciation of evidence- Criminal trial-Circumstantial evidence-Powers of
the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, Section
In the State appeal against acquittal, appellant
Babu, his father Munna and Tulaiyan were convicted by the High Court of
Allahabad and sentenced to life imprisonment.
The prosecution case as unfolded in the First
Information Report and the evidence is that Dhani Ram, the deceased who was
living with his father-in-law in village Euretha came on 7th of October 1969 to
tho house of his father Ajudhya in village Therro for getting his lands
ploughed. On the 8th October 1969 at about 9 A.M., he along with his father
left village Therro for village Kurotha for getting seeds from one of Dhani
Ram's friends. When the two reached the field of Malkhan which is said to be
near the temple of Ram Kund, the appellants came out from inside the Jhunri
field of Malkhan and started beating Dhani Ram with lathis. While Tulaiyan,
appellant No. 3 caught hold of Ajudhya and prevented him from having his son
Dhani Ram rescued, the other two continued to beat him to death pursuant to the
F.I.R. filed at S.30 p.m. at the police station which was about 12 miles away,
Sub Inspector Prem Narain reached the spot at 3 A.M. on 9th October, found the
dead body of Dhani Ram Iying between the fields of Halkha and Malkhan, sent it
for postmortem and after investigation filed the chargesheet.
The prosecution produced three witnesses-Ajudhya,
father of deceased as PW 1, Arjun PW 2 and Kashi Ram PW 3, both PW 2 and PW 3
being neighbours of PW I and of the same caste. to prove the case along with
the post mortem report which showed the stomach and bladder of the deceased
empty and the large intestine with faceal matter All the appellants entered a
plea of non-guilty. Babu's defence was that the case was foisted against him as
he had earlier on 17th of July 1969 329 filed a complaint under section 498
I.P.C. against Dhani Ram, his brother Ghurka, their maternal uncle Halka and
one Ram Charan for enticing Babu's wife away. Tulaiyan took tho plea that he
was being implicated as he was one of the witnesses in the earlier case under
section 498 I.P.C.
On appraisal of evidence the Sessions Judge
came to the conclusion that the evidence produced by the prosecution was too
feeble to base any conviction on that. In his opinion there was no motive on
the part of the appellants, and the witnesses could not be said to be
independent and they were mere chance witnesses. Ho further found that tho
probability of Dhani Ram being attacked while it was dark before he had
evacuated or takeon his breakfast could not be weeded out and in all
probability the occurrence had taken place not at tho place alleged by the
Prosecution. On those findings he acquitted all the accused.
On appeal, however, the High Court set aside
the order of acquittal and convicted the appellants under section 302 road with
section 34 I.P.C. and sentenced each of them to undergo imprisonment for life.
Hence the appeal under section 2 of the Supreme Court (Enlargomont of Criminal
Appellate Jurisdiction) Act 1971.
Allowing the appeal, the Court D
HELD: 1:1 The appellate court should be slow
in disturbing the finding of fact of the trial court and if two views are
reasonably pos4sible of the evidence on the record, it should not interfere
simply because it feels that it would have taken a different view if the case
bad been tried by it, because the trial judge has the advantage of seeing and hearing
the witnesses and the initial presumption of innocence in favour of the accused
is not weakened by his acquittal. [335 P-G] State of U.P. v. Samman Dass,
 3 S.C.R. 58, followed.
1:2 In the instant cases a perusal of the
evidence produced and the two judgments of the courts below make it clear that the
conclusions arrived at by the Sessions court were fully justified and should
not have been lightly set aside by the High Court. The cumulative effect of the
various circumstances in the opinion of the Sessions Judge did throw doubt on
the prosecution case and if the learned Sessions Judge in the circumstances did
not think it safe to rely upon the evidence produced on behalf of the
Prosecution, he committed no error either as to the time of occurrence or the
venue of the occurrence, or the motive for murder, or the motive of PW 1 to
implicate the appellants by treating the witnesses as interested and/or chance
witnesses. [336 D-E, 334 B-C]
CRIMINAL APPELLATP JURISDICTION: Criminal
Appeal No. 25 of 1976.
From the Judgment and order dated the 17th
September 1975 ' of the Allahabad High Court in Government Appeal No. 163 of
330 S.K. Mehta and M.K. Dua for the
Dalveer Bhandari, H.M. Singh and Ranbir Singh
Yadav for the Respondent.
The Judgment of the Court was delivered by
MISRA, J. The present appeal under s. 2 of the Supreme Court (Enlargement of
Criminal Appellate Jurisdiction) Act is directed against the judgment of the
High Court of Allahabad dated 17th September, 1975 setting aside the order of
acquittal passed by the Sessions Judge and convicting the appellants under s.
302 read with s. 34 IPC and sentencing therm to undergo imprisonment for life.
It appears that wife of Babu, appellant No. 1
had been enticed away. He, therefore, filed a complaint on 17th of July, 1969
against Dhani Ram, the deceased, his brother Ghurka, their maternal uncle Halka
and one Ram Charan under s. 498 IPC. The prosecution n case as unfolded in the
first information report and the evidence is that Dhani Ram, deceased, used to
live at the house of his father-in-law in village Kuretha. On 7th of October,
1969 he came to the house of his father Ajudhya in village Therro for getting
his lands ploughed. Next day at about 9 A.M. he along with his father left
village Therro for village Kuretha. His father was going there for getting
seeds from one of Dhani Ram's friends. When the two reached the field of
Malkhan, which is said to be near the temple of Ram Kund, the three accused
came out from inside the jhunri field of Malkhan and started beating Dhani Ram
with lathis. Tulaiyan, appellant No. 3 caught hold of Ajudhya, the father of
Dhani Ram and prevented him from having his son rescued. The other two
continued beating Dhani Ram to death. The first information report was lodged
at the police station at a distance of about 12 miles at 5-30 P.M. by Ajudhya.
Sub-Inspector Prem Narain reached the spot at 3 A.M. On 9th October. He found
the dead body of Dhani Ram lying on the way between the fields of Halka and Malkhan.
He prepared the challan of the dead body and a letter for postmortem and sent
the dead body for postmortem. Thereafter he investigated the case and submitted
the chargesheet against the three appellants.
The accused denied the charge. Babu said that
the case was start ed against him as he had filed a complaint under s. 498 IPC
against Halka and three others. Tulaiyan in his defence said that he had 331
been implicated as he was a witness for Babu in the criminal case A under s.
According to the doctor, who conducted the
postmortem, the death had taken. place at about 48 hours before postmortem. He,
however, admitted that there could be a difference of two to four hours either
way in the duration given by him. Postmortem report showed the stomach and
bladder of Dhani Ram empty. There was faecal matter at places in the large
intestine. There was also faecal matter stuck to the addah dhoti which Dhani
Ram was wearing.
The prosecution produced three witnesses to
prove its case. On appraisal of evidence the Sessions Judge came to the
conclusion that the evidence produced by the prosecution was too feeble to base
any conviction on that. In his opinion the witnesses could not be said to be
independent and they were mere chance witnesses. He further found that the
probability that Dhani Ram was attacked while it was dark, before he had
evacuated or taken his breakfast could not be weeded out and in all probability
the occurrence had .. y taken place not at the place alleged by the
prosecution. On these findings he acquitted all the accused.
On appeal, however, the High Court set aside
the order of acquittal and convicted the appellants under s. 302 read with s.
34 IPC and sentenced each of them to undergo imprisonment for life. E The
circumstances which weighed with the Sessions Court for disbelieving the
evidence of the prosecution, in our opinion, appear to be weighty. According to
prosecution, Dhani Ram had come to help his father in ploughing his fields on
7th October, 1969, but from the evidence on record it is clear that he came in
the evening of 7th October to village Therro and left the same for village
Kuretha the next day at 9 A.M. It does not stand to reason that Dhani Ram would
leave for a different village at a distance of about S or 6 miles without
easing himself or without taking his breakfast. But, as the doctor in
postmortem examination had found the stomach and bladder of the deceased Dhani
Ram to be empty, this gave a handle to Ajudhya to depose in the evidence that
Dhani Ram had not taken breakfast while leaving village Therro for village
Kuretha. The presence of the faecal matter in the large intestine does indicate
that Dhani Ram had not evacuated. There- fore, the possibility that Dhani Ram
was done to death early in the morning before he had evacuated is Dot weeded
out. Ajudhya, 332 P.W.1, in his deposition has clearly stated that Dhani Ram
used to ease himself just after getting up from the bed but he was not in a
position to say whether on that fateful day Dhani Ram had gone to ease himself
just after getting up from sleep. If Dhani Ram was in the habit of going out to
ease himself early in the morning just after getting up, there seems to be no
reason why he would not go to ease himself on that day if he was to go to his
The Sessions Judge also came to the
conclusion that the place of occurrence was not the one as alleged by the
prosecution in the first information report. In the FIR it has been stated that
assault on Dhani Ram had been made at the field of Malkhan near Ram Kund
Temple. According to the Sub-Inspector the dead body and the blood were found
near the field of Malkhan which is at a distance of more than a furlong from
Ram Kund Temple. Ajudhya, P.W. 1, stated before the court of Sessions that attack
on Dhani Ram was made when he and Dhani Ram reached the field of Malkhan. He
further added that Ram Kund Temple is also at that very place. From this
statement it is apparent that the assault on Dhani Ram was made just near the
temple. Kashi Ram, P.W. 3, also deposed before the committing Magistrate that
he heard noise near Ram Kund Temple. He did not say before the committing
Magistrate that when he reached the field of Malkhan he saw the occurrence.
But, in the court of Sessions he denied that he had made the aforesaid
statement before the committing Magistrate. However, it was proved from Exrt.
Kha. 5 that he did depose before the committing Magistrate that when he reached
near the temple he heard the noise.
The prosecution case in the initial stage was
that the assault had been made near Ram Kund Temple. Of course, it was also
mentioned in the FIR that the field of Malkhan was nearby. The Sub-Inspector
did not take care to find out if any of the fields of Malkhan was near the
temple. There might be some other field of Malkhan near the temple and the
reference to that field might have been made in the first information report.
The injuries on Dhani Ram also indicated that
practically all the injuries were on his face and there were hardly any
injuries on any other part of his body. This also suggests that the injuries
had been caused while Dhani Ram was lying on the ground.
The other two witnesses, Arjun and Kashi Ram
deposed that they saw the occurence from near the nallah. This nallah is far
away 333 from the temple. A person standing at that place could not see the. A
marpeet going on near the temple, as will be clear from a reference to the site
plan attached to the paper book. The learned Sessions Judge observed that the
place of occurrence was perhaps shifted to make it appear that the witnesses
standing near the nallah could see the marpeet.
Even assuming that the assault had taken
place near the field of Malkhan, the learned Sessions Judge was of the view
that the witnesses had not seen the assault and that Arjun and Kashi were mere
chance witnesses on their own showing.
They were alleged to be going to village
Dhanora for purchasing seeds and on the way they happened to see the
occurrence. Arjun and Kashi were Gadarias to which caste Ajudhya also belonged
and were next door neighbours of Ajudhya. They were on friendly terms, meeting
everyday. They came into the witness box only to help Ram Charan, one of the
accused in the case under s. 498 IPC, who also belonged to the same caste of
Gadarias as the two witnesses. In the opinion of the learned Session Judge the
fact that the other two. witnesses, namely, Arjun and Kashi were also going to
another village Dhanora for seeds and they happened to see the occurrence was
too much of a coincidence. No owner of any of the fields in the vicinity has
been produced as a witness on behalf of the prosecution.
The blood-stained earth said to have been
taken from near the field of Malkhan was sent to the chemical analyst and the
serologist but the report of the serologist has not been produced before the
court, and, therefore, it cannot be said that the blood recovered from the site
was human blood.
The learned Sessions Judge was also of the
view that the accused had no motive to murder Dhani Ram inasmuch as in the
complaint under s. 498 IPC it was said that Ra n Charan and Ghurka had enticed
away the wife of Babu but they kept her at the house of Dhani Ram. Ajudhya, the
father of the deceased, stated before the investigating officer that Babu etc.
accused in the present case were under the impression that Dhani Ram had kept
the woman at his house and had enticed her for his Mama Halka. But before the
Sessions Court in cross-examination he admitted that the wife of Babu had been
enticed away by Ghurka and Ram Charan and then they did not keep the girl with
them but sent her to her Maika Next day he, however, deposed that Dhani Ram
himself had told him that the woman had come to his house. He kept her for some
time 334 and then sent her to her Maika. The woman had returned to Babu before
the murder had taken place. However, the case under s. 498 IPC was pending at
the time of the murder of Dhani Ram and Ajudhya and his family members might
have availed of the opportunity to implicate Babu who was complainant in that
case, and his brother Munna and Tulaiyan who were witnesses in that case.
Ajudhya might have got them behind the bars so that there might not be any body
left to do pairwi in that case.
The cumulative effect of the various
circumstances enumerated above, in the opinion of the Sessions Judge, did throw
doubt on the prosecution case and if the learned Sessions Judge in the
circumstance did not think it safe to rely upon the evidence produced on behalf
of the prosecution, he committed no error.
The High Court, however, negativated the
suggestion that Ajudhya was interested in falsely implicating the three accused
in this case so as to prevent them from doing pairwi in the criminal case under
s. 498 IPC instituted by Babu.
The High Court observed:
"...that complaint was against Dhani
Ram, Halka, 13 Ram Charan and Ghurka. In that complaint neither Ajudhya nor any
other eye witnesses produced on behalf of the prosecution had been arrayed as
accused. There is nothing on the record to show that Ajudhya was taking any
interest in the criminal litigation instituted by Babu Ram. It is difficult to
believe that while promptly lodging the first information report Ajudhya was
thinking in terms of implicating persons who could do pairwi against Dhani Ram
and others. If at all, Ajudhya would be interested in seeing that the real
assailants of his son are brought to book." The observation made by the
High Court would be correct if Ajudhya and the two witnesses had really seen
the occurrence. But if they were Dot on the scene of occurrence they might draw
on their imagination and try to implicate persons on whom they had a
sus-picion. In our opinion the High Court was not justified in coming to a
different conclusion if the conclusion drawn by the Sessions Judge was a plausible
and possible one.
335 Arjun, P.W. 2. and Kashi Ram, P.W. 3 were
Gadarias by caste. Ajudhya was also Gadaria by caste. Arjun and Kashi Ram were
just next door neighbours of Ajudhya and they were on friendly and visiting
terms. Two of the persons accused- in the complaint filed by Babu were also
Gadarias by caste.
The learned Sessions Judge in the
circumstances branded those witnesses as not independent. As observed earlier,
the High Court, however, held that they would not be interested in implicating
false persons merely on the ground that they were next door neighbours. The
High Court further took the view that no question was put to the witnesses that
Malkhan had two fields, one adjoining Ram Kund temple and the other at a short
distance away from the other. It was not for the accused to prove that there
was another field of Malkhan but it was for the prosecution to prove by
conclusive evidence that Malkhan had only one plot and no other plots.
About the time of occurrence also the High
Court reversed the finding of the Sessions Court that the possibility was that
Dhani Ram was done to death in the early hours of 8th October before he had
gone to ease himself. The reasons given by the Sessions Court appear to be more
plausible on the materials on the record. In any case, even if two views were
possible, the High Court should not have interfered with the conclusions
arrived at by the Sessions Court unless the conclusions were not possible. If
the finding reached by the trial Judge cannot be said to be unreasonable, the
Appellate Court should not disturb it even if it were possible to reach a
different conclusion on the basis of the material on the record because the
trial Judge has the advantage of seeing and hearing the witnesses and the
initial presumption of innocence in favour of the accused is not weakened by
his acquittal. The appellate Court, therefore, should be slow in disturbing the
finding of fact of the trial court and if two view are reasonably possible of
the evidence on the record, it is not 'expected to interfere simple because it
feels that it would have taken a different view if the case had been tried by
This Court in U.P. State v. Samman Dass(1)
dealing with a similar situation laid down the following postulates:
"There are, however, certain cardinal
rules which have always to be kept in view in appeals against acquittal.
Firstly, there is a presumption of innocence in favour of 336 the accused which
has to be kept in mind, especially when the accused has been acquitted by the court
secondly, if two views of the matter are
possible, a view favourable to the accused should be taken;
thirdly, in case of acquittal by the trial
judge, the appellate court should take into account the fact that the trial
judge had the advantage of looking at the demeanour of witnesses; and fourthly,
the accused is entitled to the benefit of doubt. T he doubt should, however, be
reasonable and ... should be such which rational thinking men will reasonably,
honestly and conscientiously entertain and not the doubt of a timid mind which
fights shy-though unwittingly it may be-or is afraid of the logical
consequences, if that benefit was not given." We have closely perused the
evidence produced in the case and also gone through the two judgment of the Sessions
Court as well as the high Court, and after hearing the counsel for the parties
at some length we are satisfied that the conclusions arrived at by the Sessions
Court were fully justified and should not have been lightly set aside by the
For the reasons given above the appeal must
succeed and it is accordingly allowed and the judgment of the High Court dated
17th September, 1975 is set aside and that of the Court of Sessions is restored
S.R. Appeal allowed.