Rama Kant Verma Vs.
State of U.P. & Ors. [2008] INSC 2065 (2 December 2008)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS. 934-939 OF 2001
Rama Kant Verma ..Appellant Versus State of U.P. & Ors. ..Respondents WITH CRIMINAL
APPEAL NOS.1202-1206 OF 2001
Dr. ARIJIT PASAYAT,
J.
1.
Challenge
in these appeals is to the judgment of a Division Bench of the Allahabad High
Court, Lucknow Bench, directing acquittal of the respondents 2 to 5 who were found
guilty of offences punishable under Section 302 read with Sections 149 and 148
of the Indian Penal Code, 1860 (in short the `IPC'). Appellant was the
informant in the case. The aforesaid accused respondents were found guilty of
offences punishable under Section 302 read with Section 149 IPC and 148 IPC and
each of them was sentenced to be hanged separately till death. Since
confirmation of the death sentence was required, reference was made in terms of
Section 366 of the Code of Criminal Procedure, 1973 (in short the `Cr.P.C.').
The convicted accused preferred appeals. The present appellant filed a revision
against the judgment and order of acquittal in respect of two persons namely
Ram Kripal Verma and Ram Tilak Verma. The High Court allowed the appeal filed
by the convicted appellants, while dismissing the revision petition filed by
the informant and rejected the reference.
2.
The
prosecution version as unfolded during the trial is as follows:
An F.I.R. was lodged
at 6.30 A.M. on 11.11.94 at Police Station, Tarun by Rama Kant (P.W. 1) with
the allegation that his cousin Girish Varma was sleeping in the room of the
Tube-well alongwith him. His grandfather Sukhai and his uncle Ram Naresh were
sleeping under the Chhappar near the tube-well. His brother Umakant Varma (PW2)
was sleeping inside the Saria for looking after the cattle. Sukhai and Ram
Naresh raised alarm and asked for help, at which Ramakant alongwith Girish came
out of the tube-well room after opening its door, and saw that Krishna Murari
and Kashi Ram by means of Gandasa and Raghava Ram and Ram Milan by means of
Banka, and 2-3 others, who had muffled/covered their faces by means of cloth
were causing injuries to Sukhai and Ram Naresh. Ram Dev, another uncle of the
informant, was sleeping south of the tube- well under the Chhappar. Ramakant,
Umakant and Girish tried to rescue the victims, but the assailants attacked
Girish and Ram Dev also by means of their weapons. Ramakant, Uma Kant escaped
and ran into the field of Sugarcane and also raised alarm. It was night time
2.30 A.M. on 11 .
11.1994 (in between
the night of 10th and 11th November, 1984). Due to cries and alarm raised by
them, Ram Tej, father of informant, and several villagers came with lathis and
torches. The assailants ran away towards south. It was further alleged that the
four appellants were seen and identified by Ramakant (PW l) Uma Kant (PW 2),
Ram Tej and villagers in the light of the torches and in the electricity light.
It was also alleged that litigation in respect of land had been going on in
between the victims and appellant Krishna Murari. The cattle of Krishna Murari
were sent to the house of Ram Kripal ten days prior to the occurrence and he
had also sent his family out of the village to his wife's house in another
village. Rama Kant further alleged that in the morning Daljeet Singh (PW3),
Jaising Mau and Hari Om (PW4) told him that on 10.11.94 at 9.00 A.M. the
appellants were seen by them, taking non-vegetarian food alongwith Ram Tilak
and Ram Kripal at the shop of Ram Kripal. Ramakant therefore, alleged his
suspicion against Ram Kripal and Ram Tilak as the persons who were instrumental
in the commission of this crime conspiring with the appellants.
All the four victims
had died on the spot. Leaving them there as such on the spot, he lodged the
written report (Ext.Ka.l) at the Police Station where its check report
(Ex.Ka.16) and G.D.entry(Ex.Ka.17) was prepared by Ram Harsh Yadava (PW12) head
constable and thus a case crime No.156 of 94 was registered. Investigation was
given to the Station Officer of the P.S. Sudhakar (PW 10) who, at the time of
registering of the case, was busy in his duty at Ayodhya in "Chaulah Kosi
Parikarima" and who on receiving information of this case reached PS
Tarun, and obtained copy of the FIR and other relevant papers from the PS and
reached the spot of occurrence in village Bearauli at about 9.00 A.M. and found
other police personnel including Riaz Khan of P.S, Haiderganj, and Sibte Haider
SSI (PW13) of PS Tarun. He got the inquest reports of the dead Sukhai and Ram
Naresh pre- pared through Riaz Khan. S.I. Riaz Khan died before the evidence
and the inquest reports and connected papers Ext.Ka 25 to Ext.Ka 36 were proved
by Ram Narain Pandey (PW 14) and also got the inquest reports in respect of deceased
Ram Dev and Girish prepared through PW 13 Sibte Haider S.I.
(Ex.Ka 17. 18 and
Ka.20 to 24) under his supervision and direction. He sent the dead bodies for
post mortem examination to Faizabad through con- stables at about 12.15 P.M. on
that very day i.e. 11.11.1994.
Sudhakar Pandy I.O.
(P.W.10) took down the statements of Rama Kant Derma (PWl), Manik Lal Varma
(PW7) and Munna Lal (PW 8). He inspected the place of occurrence at the
instance of the witnesses of fact and prepared the map of the site (ExKa 6). He
found the dead body of Sukhai on a Cot and found Kathri and Chadar and Razai
thereon stained with the blood of the deceased and found blood stained on the
wall and prepared its recovery memo (ExKa.7) and sealed these articles with a
material taken from the wall as well. Similarly, the dead body of Ram Naresh
was on a cot with Angocha, Kathri, Chadar, another coloured chadar and one
bush-shirt stained with blood. There were stains of blood on the wall and the
memo (Ex Ka8) thereof was also prepared and articles with blood on walls were
sealed separately. In the same manner, dead body of Ramdev was found on the Cot
with kathri, chadar, banyan, gamchha stained with blood, and blood was found on
the ground near the Cot. These articles were sealed and blood stained and
sample earth was taken and sealed separately and memo (Ex.Ka9) was prepared by
him. The bedding consisting of Kathri, Rajai and two chadars and Tehmad of
deceased Girish were found on the cot which was also stained with blood. The
dead body of Girish was found in a pit (gaddha) where his blood had also fallen
down. Blood stained and sample earth were taken into possession and were sealed
separately by the I.O. and memo of this and other articles was prepared (Ex.Ka
10). Then statements of witnesses were taken down. He arrested Kashiram,
Raghava Ram and Ram Tilak on the same day. He was transferred from Tarun P.S,
on 13.11.94. The investigation then was conducted by his successor Ashutosh
Sharma (PW 11), who arrested Ram Milan and recorded the statements of remaining
witnesses and then submitted charge sheet (Fa.Ka15) against the six named
persons.
Post-mortem on the
dead bodies was conducted by Dr. O. P .Khattri (PW-9).
After investigation
charge sheet was filed. As all the six persons alleged false implication, trial
was held. Accused persons were examined by one head constable Nahar Singh of
the CB CID Dog squad Head Quarter, Lucknow. Fourteen witnesses were examined to
further the prosecution versions. Ramakant (PW1), Umakant (PW2), Daljeet Singh
(PW 3), Hari Om (PW4), Amar Jeet Singh (PW5), Mithai Lal (PW 6) Manik Ram Varma
(PW7) and Munna Lal (PW8) were stated to be eye witnesses. The trial court
believed prosecution versions and disbelieved the defence plea and convicted
and sentenced the accused persons as aforesaid.
In appeal the High
Court directed acquittal.
3.
Learned
counsel for the appellants submitted that the conclusions of the High Court are
utterly fallacious and mostly based on surmises and conjectures. It has not
even analysed the factual conclusions.
4.
In
response, learned counsel for the acquitted accused persons submitted that
analysis have been made from the evidence of PWs 1 & 2 by the High Court to
point out the infirmities. Identification was not possible, and, therefore, the
presence as claimed is doubtful. So the High Court is correct in its
conclusions. Even if the reasons are not elaborate, the evidence of PWs 1 &
2 has to be read together and a reasonable doubt is raised about the
credibility of these witnesses. There are manifest suppressions. Vital factors
like absence of light in the chappars and improbability of any light emanating
from the bulbs hanging on the Neem Tree have been taken note of. The room and
the chappars are at the distance of 100 metres and, therefore, the possibility
by identification was rightly disbelieved. Except one dead body, found in the
pit, others were found in lots. Since the accused persons are known
co-villagers, there had obvious reasons to hide their identity. There were
omissions in the inquest report and there was also delay in sending the FIR and
the inquest report. Since all relevant aspects have been considered, in an
appeal of acquittal, so far as the appellants are concerned, no interference is
called for.
5.
In
the State's appeal similar stand to that of the informant have been taken.
6.
A
bare perusal of the High Court's orders shows that the conclusions of the High
Court are utterly confusing and based on surmises and conjectures. A few
instances about the absurd conclusions are as follows:
"A reading of
the post mortem examination report indicates that the four persons were done to
death without any hindrance or interference and without any person resisting
forcefully and without raising any alarm.
xxx xxx xxx 8 It was
alleged in the FIR that the miscreants were seen and identified by Ramakant,
Umakant, Ram Tej and "villagers" in the light of electricity and
torches.
PW1 Ramakant says
that he had a torch with him.
He is unable to say
as to why he did not show it to the I.O. or why its memo was not prepared or
why the I.O. was not told about it.
xxx xxx xxx It is
stated that it was dark in the field. It was not mentioned in the FIR that any
of these persons had any torch with them at that crucial time. The dispute of
presence of electricity light would have been done away with if the torches had
been with them. But PW 2 says that there was no other source of light there
except the bulbs but PW 1 says that he had a torch; and was unable to say
whether PW2 had it or not. This shows that none of them was even present on the
spot. The story about torch is quite false.
Xxx xxx xxx There was
no mention in the FIR that there were two bulbs or these were hanging on the
two trees. Conspicuously the entire story, at all places, is silent about the
miscreants having any torch etc.
Xxx xxx xxx According
to PW 2 Umakant and PW1 Ramakant none of the male family members were sleeping
in the house in the village and all the male members of the family were
sleeping at the tube-well. Although there is nothing very much abnormal in it,
but under the circumstances this does not seem to be the truth. The presence of
Ramakant and Umakant on the spot is highly doubtful and rather false. PW 2 says
that all the appellants had open faces, whereas the other three persons had
muffled their faces by cloth and had come to commit the crime taking advantage
of night and without raising any alarm or noise. And that their houses are next
to their house and some are within a radius of 100 metres. This all appears to
be unbelievable in view of the above and is thus false.
Xxx xxx xxx FIR
number and distance of P.S. from the place of occurrence which find mention in
the F.I.R., have not been mentioned in the four inquest reports prepared by the
two police officers under the supervision and direction of the I.O.
Xxx xxx xxx Even
there is no GD on record of the arrival of the IO to the PS for taking the
papers, and of departure for the spot on 11.11.1994.
Xxx xxx xxx Though
normally these things do not matter much and in normal cases prosecution cannot
be made to suffer due to faults and latches on the part of investigating agency
or other police officials. But in the facts and special circumstances of this
case, these become material.
Xxx xxx xxx The
Doctor(PW 9) conducted post mortem of the dead bodies on 12.11.1994 w.e.f. 11
AM and last was started at 3PM if the dead bodies had been received earlier
then the post mortem could have been conducted earlier in the morning, or could
have been conducted the same day. The doctor was also not categorical in his
statement about the FIR. The time of death was 11 approximate and it could not
definitely be said that the occurrence took place at 2.30 AM. These all facts
are fatal to the case of prosecution and indicate that FIR was prepared some
time later on and was ante timed.
Xxx xxx xxx After
arrival of the police, efforts were made to find out the culprits and for that
purpose help of the dog squad was also taken. And when dog squad also failed
then the case was made out naming those with whom there was enmity, and that
must have been done on suspicion. The FIR was ante-timed."
7.
The
witnesses could not have stated the scenario with surgical precision. In State
of A.P. v. Kandagopaludu [2005(13) SCC 116] it was inter alia observed as
follows:
"We have been
taken through the evidence of PWs 1, 2 and 3 before whom extra-judicial
confession has been made by the accused. The testimony of PWs 1, 2 and 3 is
consistent. The learned counsel for the respondent pointed out that in the
evidence of PWs 1 and 2 there is contradiction that the accused did not state
before them that he came seeking protection from them.
In our view, this
discrepancy cannot be termed as a contradiction which would be fatal to the
prosecution case. Every discrepancy in the statement of a witness 12 cannot be
treated as fatal to the prosecution case. A discrepancy which is not fatal to
the prosecution does not create any infirmity. The incident had taken place on
24-1-1992 and PW 2 was examined on 22-1-1996 after almost four years. Human
memories are apt to blur with the passage of time. After lapse of almost four
years, it cannot be expected that a witness can depose with mathematical
precision."
8.
In
B.K. Channappa v. State of Karnataka [2006(12) SCC 57] it was inter alia
observed as follows:
"We have
independently scrutinised the evidence of the material witnesses in the teeth
of the rival contentions of the parties. On reappraisal and scrutiny of the
evidence of the injured witnesses Shekharappa (PW 2), B.G. Shivamurthaiah (PW
3) and B.G. Prakashaiah (PW 4), they have fully established the case of the prosecution
against A-2, A-3, A-17, A-19 and A-20, although there were certain
discrepancies in their testimony and in comparison to the versions of PW 6, PW
7 and PW 19, the eyewitnesses, in regard to the weapons of offence individually
used by A-1, A-3, A-17, A-19 and A-20 for inflicting injuries on the person of
each of the injured witnesses as also on the person of the deceased. The
discrepancies, as pointed out by the learned counsel for the appellants, are
minor and insignificant. The occurrence took place on 5-7-1995 and the
witnesses were examined in the court after about a gap of almost five years.
The evidence on record further shows that the injured witnesses had been
subjected to lengthy and searching cross-examination and in such type of cross-
examination, some improvements, contradictions, and omissions are bound to
occur in their evidence, which cannot be treated as very serious, vital and
significant so as to disbelieve and discard the substratum of the 13
prosecution case. The evidence of the injured witnesses and other eyewitnesses
has been rightly reappreciated and accepted by the High Court and we find no
cogent and sound reason to differ from the well-reasoned judgment upholding the
order of the trial court. There is, therefore, no merit in the argument of the
learned counsel for the appellants that the evidence of the injured witnesses
and other eyewitnesses should be labelled as the evidence of the interested
witnesses. On the other hand, we find that the evidence of all the eyewitnesses
including injured persons is quite natural, convincing and trustworthy. There
is no material on record from which an inference can be drawn that the material
witnesses have implicated the appellants Karibasappa (A-2), Halanaika (A-3),
B.K. Manjunatha (A-17), B.K. Parmeshwarappa (A-19) and B.K. Shivarajappa (A-20)
in a false case.
9.
There
is substance in the plea by learned counsel for the appellant that the presence
of the witnesses has been erroneously discarded. It was submitted by the
respondents-accused that the complainant has no locus standi to prefer any
appeal. In any event, State has preferred appeal. In Ramakant Rai v. Madan Rai
& Ors. [2003(12) SCC 395] it was inter alia observed as follows:
"A doubt has
been raised about the competence of a private party as distinguished from the
State, to invoke the jurisdiction of this Court under Article 136 of the
Constitution of India, 1950 (in short the `Constitution') against a judgment of
acquittal by the High Court. We do not see any substance in the doubt.
Appellate power vested in this Court under Article 136 of the Constitution is
not to be confused with ordinary appellate power exercised by appellate courts
and appellate tribunals under specific statutes. It is a plenary power,
`exercisable outside the purview of ordinary law' to meet the pressing demands
of justice (See Durga Shankar Mehta v. Thakur Raghuraj Singh (AIR 1954 SC 520).
Article 136 of the Constitution neither confers on anyone the right to invoke
the jurisdiction of this Court nor inhibits anyone from invoking the Court's
jurisdiction. The power is vested in this Court but the right to invoke the
Court's jurisdiction is vested in no one. The exercise of the power of this
Court is not circumscribed by any limitation as to who may invoke it. Where a
judgment of acquittal by the High Court has led to a serious miscarriage of
justice this Court cannot refrain from doing its duty and abstain from
interfering on the ground that a private party and not the State has invoked
the Court's jurisdiction. We do not have slightest doubt that we can entertain
appeals against judgments of acquittal by the High Court at the instance of
interested private parties also. The circumstance that the Criminal Procedure
Code, 1973 (in short the "Code") does not provide for an appeal to
the High Court against an order of acquittal by a subordinate Court, at the
instance of a private party, has no relevance to the question of the power of
this Court under Article 136. We may mention that in Mohan Lal v. Ajit Singh (1978
(3) SCC 279) this Court interfered with a judgment of acquittal by the High
Court at the instance of a private party. An apprehension was expressed that if
appeals against judgments of acquittal at the instance of private parties are
permitted there may be a flood of appeals. We do not share the apprehension.
Appeals under Article 136 of the Constitution are entertained by special leave
granted by this Court, whether it is the State or a private party that invokes
the jurisdiction of this Court, and special leave is not granted as a matter of
course but only for good and sufficient reasons, well established by the
practice of this Court.
10.
In
the circumstances, we deem it proper to remit the matter to the High Court for
hearing the cases afresh and dispose them of in accordance with law.
11.
The
appeals are allowed.
.............................J.
(Dr. ARIJIT PASAYAT)
.............................J.
(P. SATHASIVAM)
.............................J
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