PETITIONER:
RAM JAG AND OTHERS
Vs.
RESPONDENT:
THE STATE OF U.P.
DATE OF JUDGMENT21/12/1973
BENCH:
CHANDRACHUD, Y.V.
BENCH:
CHANDRACHUD, Y.V.
BEG, M. HAMEEDULLAH
CITATION:
1974 AIR 606 1974 SCR (3) 9
1974 SCC (4) 201
CITATOR INFO :
F 1974 SC2165 (27)
R 1975 SC 185 (2)
F 1975 SC 274 (4)
RF 1975 SC1100 (6)
RF 1975 SC1808 (3)
F 1976 SC1994 (13)
F 1976 SC2032 (2,3)
R 1976 SC2304 (22)
ACT:
Penal Code–Ss. 302, 325, 323–Constitution of India–Art.
136–High Court setting aside acquittal–Appeal by special
leave–If Supreme Court could reappreciate evidence.
HEADNOTE:
The appellants who were charged with the offence of murder
were acquitted by the Additional Sessions Judge but the
order of acquittal was set aside in appeal by the High
Court. The High Court convicted them under various sections
of the Penal Code and sentenced them to life imprisonment
for the offence of murder and to shorter terms for the other
offences. The prosecution case was that when the deceased,
along with three other persons, was returning from temple,
he was attacked at about 4 P. M. on the day of the
occurrence by the appellants. The deceased , who was
mortally injured, was carried in a bullock cart to a nearby
police station. On the way he succumbed to his injuries.
The first information report was lodged in the police
station at 12.30 that night.
Allowing the appeal to this Court,
HELD : This Court in an appeal under Art. 136 will examine
the evidence only if the High Court while setting aside the
order of acquittal by the trial court has failed to apply
correctly the principles governing appeals against
acquittals.
In Sheo Swarup & Ors v. The King Emperor, 61 I.A. 398,
Surajpal Singh v. The state [1952] S.C.R.193 and Sanwat
Singh v. State Of Rajasthan [1961] 3 S.C.R. 120, the
principles governing appeals against acquittal are firmly
established. The Code of Criminal Procedure made no
distinction between the powers of the appellate court in
regard to the two categories of appeals and, therefore, the
High Court has powers as full and wide in appeals against
acquittal as in appeals against conviction. Whether the
High Court is dealing with one class of appeals of criminal
jurisprudence that unless the, statute provides to the
contrary there is a presumption of innocence in favour of
the accused and secondly that the accused is entitled to the
benefit of reasonable doubt. Due regard to the views of the
trial court as to the credibility of witnesses in matters
resting on pure appreciation of evidence and the studied
slowness of the appellate court in disturbing a finding of
fact arrived at by a judge who had the advantage of seeing
and hearing the witnesses, where such seeing and hearing can
be useful aids to the assessment of evidence are well known
principles which generally inform the administration of
justice and govern the exercise of all appellate
jurisdiction. They are self-imposed limitations on a power
otherwise plenary and like all voluntary restraints, they
constitute valuable guidelines. Such regard and slowness
must find their reflection in the appellate judgment, which
can only be if the appellate court deals with the principal
reasons that influenced the order of acquittal and after
examining the evidence with care gives its own reasons
justifying a contrary view of the evidence. It is implicit
in this judicial process that if two views of the evidence
are reasonably possible, the finding of acquittal ought not
to be disturbed.
If after applying these principles, not by their mechanical
recitation in the judgment, the High Court has reached the
conclusion the order of acquittal ought to be reversed, this
court will not reappraise evidence in appeals brought before
it under art. 136of the Constitution. In such appeals, only
such examination of the evidence would ordinarily be
necessary as is required to see whether the high court
has appliedthe principles correctly. The High Court is
the final court of facts and the reserve jurisdiction
of this Court under Art. 136, though couched in wide
terms,is by long practice exercised in exceptional cases
where the High Court has disregarded the guidelines set by
this Court for deciding appeals against acquittal or by
disregard to the forms of legal process or some violation
of the principles of natural justice or otherwise,
substantial and grave injustice has been done’, or where the
finding is such that it shakes theconscience of the court.
[15B-G]
10
The High Court in the instant case was evidently aware of
these principles but it failed to apply then to the case on
hand. The High Court was not correct in characterising of
the findings recorded by the trial court as “perverse”.
(i) The High Court was not right in rejecting the view of
the Sessions Judge that there was undue delay in lodging the
report and that the delay was not satisfactorily explained.
Whether the delay was so long as to throw a cloud of
suspicion on the case of the prosecution must depend upon a
variety of factors which would vary from case to case.
(ii) In the instant case the defence of the appellants that
the occurrence must have taken place under cover of
darkness, that is, long after the time at which it was
alleged to have taken place is well founded and the High
Court was clearly in error in discarding it.
(iii) If the principal witness had no compunction in
creating an eyewitness his evidence had to be approached
with great caution. The High Court was not justified in
holding that the only impact of the false discovery of an
eye witness on the prosecution case was that the evidence of
the principal witness had to be rejected in part.
(iv) Yet another witness had made conflicting statements on
oath before two courts on an important aspect and the
question which the High Court should have asked itself was
whether the view taken by the Sessions Court in regard to
this witness was a reasonable one. The High Court was not
right in saying that there was no reason to discard the
testimony of the other eye witnesses even if his evidence
was left out.
(v) The motive was said to be illicit intimacy between the
deceased and daught of one of the assailants. But one of
the witnesses deposed that the assailants were dacoits and
that they searched his pocket as well as the pockets of his
companions. The first information report made no mention of
any one of the accused referring to the illicit intimacy
before, during or after the attack. The endeavour at the
trial was to show that the incident was connected with the
illicit affair. if that be the true motive, it is hardly
likely that the assailants would search the pockets of the
deceased and his companions. The Sessions Judge was
justified in attaching due importance to this aspect of the
matter and the High Court was not right in saying that
unnecessary emphasis was laid on a minor matter.
JUDGMENT:
CRIMINAL, APPELLATE JURISDICTION : Criminal Appeal No. 110
of 1970.
Appeal by Special Leave from the Judgment and Order dated
the 8th January 1970 of the Allahabad High Court (Lucknow
Bench) at Lucknow in Criminal Appeal No. 634 of 1967.
A. N. Mulla and R. L. Kohli, for the appellants.
0. P. Rana, for the respondent.
The Judgment of the Court was delivered by
CHANDRACHUD J.-The appellants, eleven in all, were acquitted
by the Additional Sessions Judge, Gonda, but the order of
acquittal was set aside in appeal by the High Court of
Allahabad (Lucknow Bench). The High Court has convicted the
appellants under sections 302, 325 and 323 read with section
149 and under section 147 of the Penal Code. They have been
sentenced to life imprisonment for the offence of murder and
to shorter terms for the other offences. This appeal by
special leave is directed against that judgment. The charge
against the appellants is that on the evening of September
17, 1966 they formed an unlawful assembly and in prosecution
of the common object of that assembly
11
they caused the death of Hausla Prasad and injuries to
Rampher, Dwarika and Lakhu.
On September 17,1966 which was a Kajri Tij day Rampher and
the deceased Hausla Prasad had gone to a temple which is at
a distance about 8 miles from the village of Jhampur where
they lived. They left the temple late in the afternoon along
with Dwarika and Lakhu whom they met at the temple. Soon
after they crossed a river near the village of Singha Chanda
they are alleged to have been attacked by the appellants.
Dwarika brought a bullock’ cart from a village called
Gauhani and thereafter the four injured persons proceeded to
the Tarabganj police station. On the way Rampher dictated
the First Information Report to a boy called Gorakhnath and
soon,, thereafter the report was lodged at the police
station at about 12-30, at night.
Hausla Prasad succumbed to his injuries just before the
party reached the police station. He had’ 12 injuries on
his person, Lakhu and a swelling Rampher had received 6
injuries while Dwarika had received 9 injuries. The
injuries received by these persons including, Hausla Prasad
were mostly contused lacerated wounds and abrasions.
The prosecution examined Rampher, Dwarika, Lakhu, Ram,
Shanker and Ram Kripal (P. Ws 2 to 6) as eye-witnesses to
the Occurrence. The learned Additional Session’s Judge held
that these witnesses were not worthy of credit and acquitted
the appellants. The High Court was not impressed by the
evidence of Ram Shanker and. Ram Kripal but accepting the
evidence of Rampher, Dwarika and Lakhu it convicted the
appellants of the offences of which they were charged.
Learned counsel for the State, when called upon raised a
fundamental objection to our entertaining the various
questions raised on behalf of the appellants. He contends
that the sole question in the appeal, is whether the High
Court was right in accepting the evidence of the three eye-
witnesses and therefore this Court, in the exercise of its
powers under article 136 of the Constitution, ought not to
re-appreciate that evidence in order to determine whether it
can sustain the conviction of the appellants.
The question as regards the power of this Court in criminal
appeals by special leave from the judgments of High Courts
setting aside acquittals has been discussed in numerous
cases but the precise scope of that power is still being
debated as a live issue. In case after case, counsel have
contended that this Court does not under article 136
function as yet another court of appeal and therefore on
matters of appreciation of evidence, the final word must
rest with the High Court. Considering the staggering mass
of work which is gradually accumulating in this Court, such
a rule will bring welcome relief. But it is overstating the
rule to say that the verdict of the High Court on questions
of fact, including assessment of evidence, cannot ever be
re-opened in this Court.
12
The true position is that if the High Court has set aside an
order of acquittal, this Court in an appeal under article
136 from the judgment of the High Court will examine the
evidence only if the High Court has failed to apply
correctly the principles governing appeals against
acquittal. In a series of decisions, High Courts had taken
the view that upon an appeal from an acquittal the appellate
court is not entitled to interfere with the decision of the
trial court on facts unless it has acted perversely or
otherwise improperly or has been deceived by fraud. (See
Empress of India v. Gayadin(1); Queen-Empress v. Robin-
son(2); Deputy Legal Remembrancer of Bengal v. Amulya Dwan
(3); King-Emperor v. Deboo Singh (4); King-Emperor; v. U San
Win (5).) A contrary line of cases had, on the other hand,
ruled that the Code of Criminal Procedure drew no
distinction between an appeal from an acquittal and an
appeal from a conviction, and no such distinction could be
imposed by judicial decision. (See Queen-Empress v. Prag
Dat(6); Queen-Empress v. Bibhuti Bhusan Bit(7); Deputy Legal
Remembrancer, Behar and Orissa v. Mutukdhari Singh (8); Re
Sinnu Goundan (9); Queen-Empress v. Karigowda(1O).
In Sheo Swarup and Ors. v. The King-Emperor,(11) these
conflicting decisions were canvassed before the Privy
Council but it saw no useful purpose in examining the long
list of decisions. Observing that the answer to the
question in issue would depend upon the construction of the
provisions in the Code of Criminal Procedure,the,Privy
Council noticed sections 404, 410, 417, 418 and 422,
examined section 423 and concluded that the Code draw no
distinction between an appeal against an acquittal and an
appeal against a conviction, as regards the powers of the
High Court. Speaking for the Judicial Committee, Lord
Russell observed :
“There is, in their opinion, no foundation for
the view, apparently supported by the
judgments of some Courts in India, that the
High Court has no power or jurisdiction to
reverse an order of acquittal on a matter of
fact, except in cases in which the lower Court
has “obstainately blundered,” or has “through
incompetence, stupidity or perversity” reached
such “distorted conclusions as to produce a
positive miscarriage of justice,” or has in
some other way so conducted or misconducted
itself as to produce a glaring miscarriage of
justice, or has been tricked by the defence so
as to produce a similar result.
“Sections 417, 418 and 423 of the Code give to
the High Court full power to review at large
the evidence upon which the order of acquittal
was founded, and to reach the conclus
ion that
upon that evidence the order of acquittal
should be reversed No limitation should be
placed upon that power, unless it be found
1. (1881) I. L. R. 4 Allahabad 148.
2. (1894) I. L. R. 16 Allahabad 212.
3. (1913) I.L.R. 18 C.W.N. 666.
4. [1927] I.L.R. 6 Patna 496.
5. (1932) I.L.R. 10 Rangoon 312.
6. (1898) I.L.R. 20 Allahabad 459.
7. (1890) I.L.R. 17 Calcutta 485.
8. (1915) 20 C.W.N. 128.
9. (1914) I.L.R. 38 Madras 1028,1034.
10. (1894) I.L.R. 19 Bombay 51.
11. 61 1. A. 398.
13
expressly stated in the Code, But in
exercising the power conferred by the Code and
before reaching its conclusions upon fact, the
High Court should and will always 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 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. To state
this, however, is only to say that the High
Court in its conduct of the appeal should and
will act in accordance with rules and
principles well known and recognised in the
administration of justice.”
The amplitude of the power of the High Court in appeals
against acquittal was reiterated by the Privy Council in Nur
Mahomed v. Emperor.(1)
While holding that in appeals against acquittals the High
Court has full power to review at large all the evidence and
to reach the conclusion that upon that evidence the order of
acquittal should be reversed, the Privy Council had pointed
out that before reaching its conclusions on facts the High
Court must always give proper weight to certain matters like
the presumption of innocence, the benefit of’ doubt etc.
This qualification upon a power otherwise wide and unlimited
was no more than differently expressed by this Court in
Surajpal Singh v. The State(2), by saying that though it is
well-established that the High Court has full power to
review the evidence on which the order of acquittal was
founded, “it is equally well settled that the presumption of
innocence of the accused is further reinforced by his
acquittal by the trial court, and the findings of the trial
court which had the advantage of seeing the witnesses and
hearing their evidence can be reversed only for very
substantial and compelling reasons”. The phrase
“substantial and compelling reasons” became almost a part,
as it were. of codified law and was repeatedly used by this
Court with emphasis in cases like Ajmer Singh v. State of
Punjab(3), Puran v. State of’ Punjab (4), Aher Raja Khima v.
The State of Saurashtra (5), Bhagwan Das v. State of
Rajasthan (6) and Balbir Singh v. State of Punjab. (7)
Judgments of several High Courts in appeals against
acquittals would bear evidence of the magic spell which the
phrase had cast and how it had coloured their approach to
the evidence before them. The apparently rigorous
requirement of the rule of “substantial and compelling rea-
sons” and to some extent its tedium was relieved by the use
of words ” good and sufficiently cogent reasons” in Tulsiram
Kani v. The State.(8) In Aher Raja Khima’s case(5), the
formula of “substantial and corn-
1. A.I.R. 1945 P.C. 151.
3. [1953] S.C.R. 418.
5. [1955] 2 S.C.R.1285.
7. A.I.R. 1957 S.C. 216,
2. [1952] S.C.R. 193.
4. A.I.R. 1953 S.C. 459.
6. A.I.R. 1957 S. C. 589.
S. A.I.R. 1954 S.C. 1.
14
pelling reasons” though adopted, was treated as synonymous
with “strong reasons”.
This stalemate was resolved by this Court in Sanwat Singh v.
State of Rajasthan(1). Observing that “In recent years the
words ‘compelling reasons’ have become words of magic
incantation in every ..appeal against acquittal”, the Court
said: “The words were intended ,,to convey the idea that an
appellate court not only shall bear in mind .the principles
laid down by the Privy Council but also must give its ,clear
reasons for coming to the conclusion that the order of
acquittal was wrong.” The principles laid down by the Privy
Council in Sheo Swarup’s case(2) were expressly approved and
it was held that “the different phraseology used in the
judgments of this Court, such as, (i) ,.substantial and
compelling reasons’, (ii) ‘good and sufficiently cogent
reasons’, and (iii) ‘strong reasons’ are not intended to
curtail the undoubted power of an appellate court in an
appeal against acquittal to review the entire evidence and
to come to its own conclusion ; but in doing so it should
not only consider every matter on record having a bearing on
the question of fact and the reasons given by the court
below in support of its order of acquittal in its arriving
at a conclusion on those facts, but should also express
those reasons in its judgment, which lead it to hold that
the acquittal was not justified.”
The principles governing appeals against acquittal as
explained in Sanwat Singh’s case have been adopted and
applied by this Court in numerous cases over the past many
years. No case has struck a discordant note though one or
the other requirement of the well-established principles has
been high-lighted more in some judgments than in others.
These, however, are variations in style and do not reflect a
variation in approach.
In Harbans Singh v. State of Punjab(3), a four-Judge Bench
observed: “What may be called the ‘golden thread running
through all these ,decisions is the rule that in deciding
appeals against acquittal the Court of Appeal must examine
the evidence with particular care, must examine also the
reasons on which the order of acquittal was based and should
interfere with the order only when satisfied that the view
taken by the acquitting Judge is clearly unreasonable.” In
Ramabhupala Reddy and Ors. v. The State of Andhra
Pradesh(4), the same thought was expressed by saying : “if
two reasonable conclusions, can be reached oil the basis of
the evidence on record, the appellate court should not
disturb the findings of the trial court.” Very recently, in
Shivaji Sahebrao Bobade and Anr. v. State of Maharashtra(5),
this Court rejuvenated the suspect formula of ”substantial
and compelling grounds” thus : “We are clearly in
agreement…… that an acquitted accused should not be put
in peril of conviction on appeal save where substantial and
,compelling grounds exist for such a course…….. In law
there are no fetters on the plenary power of the Appellate
Court to review the whole ,evidence on Which the order or
acquittal is founded and, indeed, it
1. [1961] 3 S.C.R. 120.
3. [1962] 1 Supp. S.C.R. 104. 1
5. A.I.R. 1973 S.C. 2622.
61 1. A. 398.
4. A.I.R. 1971 S.C. 460,
15
has a duty to scrutinise the probative material de novo,
informed, however, by the weighty thought that the
rebuttable innocence attributed to the accused having been
converted into an acquittal the homage our jurisprudence
owes to individual liberty constrains the higher court not
to upset the holding without very convincing reasons and
comprehensive consideration.”
The principles governing appeals against acquittal are thus
firmly established and the issue cannot now be re-opened.
The Code of Criminal Procedure by section 423, has accorded
parity to appeals against conviction and appeals against
acquittal; the Code makes no distinction between the powers
of the appellate court in regard to the two categories of
appeals and therefore the High Court has powers as full and
wide in appeals against acquittal as in appeals against
conviction. Whether the High Court is dealing with one
class of appeals or the other, it must equally have regard
to the fundamental principles of Criminal Jurisprudence that
unless the statute provides to the contrary there is a
presumption of innocence in favour of the accused and
secondly, that the accused is entitled to the benefit of
reasonable doubt. Due regard to the views of the trial
court as to the credibility of witnesses in matters resting
on pure appreciation of evidence and the, studied slowness
of the appellate court in disturbing a finding of fact
arrived at by a Judge who had the advantage of seeing and
hearing the witnesses, where such seeing and hearing can be
useful aids to the assessment of evidence, are well-known
principles which generally informs the administration of
justice and govern the exercise of all appellate
jurisdiction. They are self-imposed limitations on a power
otherwise plenary and like all voluntary restraints, they
constitute valuable guidelines. Such regard and slowness
must find their reflection in the appellate judgment, which
can only be if the appellate court deals with the principal
reasons that become influenced the order of acquittal and
after examining the evidence with care gives its own reasons
justifying a contrary view of the evidence. It is implicit
in this judicial process that if two views of the evidence
are reasonably possible. the finding of acquittal ought not
to be disturbed.
if after applying these principles, not by their mechanical
recitation in the judgment, the High Court has reached the
conclusion that lie order of acquittal ought to be reversed,
this Court will not reappraise evidence in appeals brought
before it under article 136 of the Constitution. In such
appeals, only such examination of the evidence would
ordinarily be necessary as is required to see whether the
High Court has applied the principles correctly. The High
Court is the final court of facts and the reserve
jurisdiction of this Court tinder article 136, though
couched in wide terms, is by long practice exercised in
exceptional cases where the High Court has disregarded the
guide-lilies set by this Court for deciding appeals against
acquittal or “by disregard to the forms of legal process or
some violation of the principles of natural justice or
otherwise, substantial and grave injustice has been done” or
where the finding is such that it shocks the conscience of
the Court (See, Sanwat Singh & Or.;. v. State of
Rajasthan(1); Harbans Singh &
(1) [1961]3 S.C.R. 120, 134-135.
16
Anr. v. State of Punjab (1); Ramabhupala Reddy and Ors., V.
The State of Andhra Pradesh(2); and Shivji Genu Mohite v.
State of Maharashtra)(3). A finding reached by the
application of correct principles cannot shock judicial
conscience and this Court does not permit its conscience to
be projected save where known and recognised tests of
testimonial assessment are totally disregarded; otherwise,
conscience can become an unruly customer.
The High Court in the instant case was evidently aware of
these principles but it failed to apply them to the case on
hand. In an effort to justify its interference with the
order of acquittal it has characterised one of the findings
recorded by the trial court as ‘perverse’ but with that we
must express our disagreement. We will now proceed to show
how the view taken by the learned Sessions Judge is clearly
a reasonable view to take of the evidence.
According to the prosecution the occurrence took place at
about 4 p. zn. and since the First Information Report was
lodged at about 12-30 at night at the Tarabganj police
station which is at a distance of about 4 miles from the
scene of occurrence, the learned Sessions Judge held that
there was undue delay in lodging the Report and that the
delay was not satisfactorily explained. It is true that
witnesses cannot be called upon to explain every hour’s
delay and a commonsense view has to be taken in ascertaining
whether the First Information Report was, lodged after an
undue delay so as to afford enough scope for manipulating
evidence. Whether the delay is so long as to throw a cloud
of suspicion on the seeds of the prosecution must depend
upon a variety of factors which would vary from case to
case. Even a long delay in filing report of an occurrence
can be condoned if the witnesses on whose evidence the
prosecution relies have no motive for implicating the
accused. On the other hand, prompt filing of the report is
not an unmistakable guarantee of the truthfulness of the
version of the prosecution.
In the instant case the importance of the question whether
there was delay in filing the First Information Report is of
a different order. The case of the appellants is that the
occurrence must have taken place under cover of darkness,
that is, long after the time at which it is alleged to have
taken place and that is why the First Information Report
could not be ledged earlier than at 12-30 a.m. , This
defence is wellfounded and the-High Court was clearly in
error in discarding it.
The village of Singha Chanda is just about a furlong away
from the scene of offence and yet Dwarika claims to have
gone to Gauhani, which is about 3 or 4 miles away, to get a
bullock-cart. The High Court observes:”It is not an
unreasonable conduct on the part of the witnesses not to
take chance in the nearby village for arranging for a
bullock. cart when they felt sure that they would be able to
procure one from a. village which was somewhat farther away,
the persons who owned the bullock-cart being known to one of
them.” We find it difficult to endorse this view. After the
bullock-cart was brought to the place
(1) (19621 1 Supp. S.C. R. 104, 1 1 1.
(2) A. I. R. 1971 S.C. 460, 464.
(3) A.I.R. 1973 S.C. 55. 62.
17
where the incident took place-Rampher and his tow companions
claimed to have taken a longer route to reach the police
station for the reason that taking the shorter route would
have meant crossing a river twice. The river had but ankle-
deep water and was only 12 paces from one end to the other.
Hausla Prasad was in a critical condition and it is
impossible to believe that a longer route was taken
thoughtfully in order to facilitate the journey. The High
Court observes: “The taking of a longer route also was
justified in order to avoid the jolts for the injured on the
way for we find in the official map that there is a route by
the road of sufficiently good distance along which the
bullock-cart could go if it took the longer route.” This
reasoning is wholly devoid of substance because in
situations like the one in which the injured persons were
placed, there is neither time nor leisure to consider calmly
the pros and cons of the matter. The uppermost thought
would be to reach the hospital and the police station as
early as possible and it is in the least degree likely, as
observed by the High Court that the injured persons avoided
going through the tiny river because it “might have done
damage to Hausla Prasad whose condition was by no means
good.”
The truth of the matter is that the occurrence had taken
place long after 4 p.m. and witnesses were hard put to
explaining why on their own theory they took more than 8
hours to cover a distance of 4 miles. They offered a
fanciful explanation which was rightly rejected by the
Sessions Court and was wrongly accepted by the High Court.
It is significant that Rampher had stated in the committing
court that all of them were waiting at the spot of
occurrence for about 2 hours after “night-fall”.
Ram Kripal, a brother of Rampher, himself was examined by
the prosecution as an eye-witness. His name was not
mentioned in the First Information Report in spite of the
fact that the name of other witnesses and several other
minute details were mentioned therein. If Ram Kripal was
present at the time of the incident, he rather than the
injured Dwarika would have gone to fetch the bullock-cart.
The Sessions Court therefore rejected the evidence of Ram
Kripal and indeed the High Court also came to the conclusion
that Ram Kripal was not a reliable witness, ‘that he might
not have been present at an and has been added as an after-
thought in support of the prosecution or in any case his
statement is of doubtful value, but that does not mean that
Rampher’s statement should be discarded for the principle
of’ falsus in uno, falsus in omnibus is a principle that
does not apply in our country.’ If Rampher had no
compunction in creating an eyewitness his evidence had to be
approached with great caution. The High Court was not
justified in holding that the only impact of the false
discovery of an eye-witness on the prosecution case was that
Rampher’s evidence had to be rejected in part.
Ram Shanker is also alleged to have been present at the time
of the incident but he had admitted before the committing
magistrate that he left his house for the temple at about 2-
30 p.m. That would make it impossible for him to be at the
scene of offence at about 4 p.m. on his
18
way back from the temple. He therefore improved his version
by stating in the Sessions Court that he had left his house
at about 6 a.m. He had also stated in the committing court
that he was waiting at the scene of offence till about 8
p.m. but he denied in the Sessions Court that he had made
any such statement. The learned Sessions Judge was
therefore justified in rejecting the evidence of Ram
Shanker. also. While dealing with the evidence of this
witness the High Court observes that “the statement of a
witness should be examined as a whole and the mere fact that
the witness has denied certain statements made by him
earlier under the challenge thrown to him in the witness-box
during cross-examination should not detract from the value
of his testimony made on oath before the trial Judge”. One
can be unconventional in the assessment of evidence but the
approach of the High Court is impossible to accept. Ram
Shanker had made conflicting statements on oath before the
two courts on an important aspect and the question which the
High Court had to ask itself in the appeal against the order
of acquittal was whether the view taken by the Sessions
Court in regard to the presence of Ram Shanker was not a
reasonable view to take. After indicating its disapproval
of the conclusion recorded by the Sessions Court that Ram
Shanker was not a witness of truth’ the High Court proceeded
to say that even if his evidence was left out, there was no
reason to discard the testimony of the other eye-witnesses.
The High Court also failed to appreciate the true
implication of Rampher’s evidence in the Sessions Court that
the assailants were dacoits or ‘Looteras’ and that they had
searched his pockets as well as the pockets of his
companions. Appellants are alleged to have assaulted Hausla
Prasad and his companions not with the motive of thieving
but for the alleged motive that-Hausla Prasad was in illicit
intimacy with Sheshkali, the daughter of Gaya Prasad who was
the principal accused but who died during the proceedings.
If that be the true motive, it is hardly likely that Gaya
Prasad and his companions would search the pockets of
Rampher and his troupe. The Sessions Court was justified in
attaching due importance to Rampher’s evidence on this
aspect of the matter. We are unable to appreciate the
criticism of the High Court that “It is again the case of an
unnecessary emphasis being laid on a minor matter”. Indeed
witnesses themselves thought the matter to be so important
that in order to render the story of motive probable, they
introduced in their evidence the embellishment that before
hitting Hausla Prasad, Gaya Prasad said “Is ko …. Aashnai
ka Maza Chakha do”. The endeavour at the trial was to show
that the incident was connected with the illicit affair
between Hausla Prasad and Sheshkali. Significantly, the
First Information Report makes no mention of any one of the
accused referring to the ‘Aashnai’ (illicit intimacy)
before, during or after the attack.
In the concluding portion of its judgment the High Court has
observed that the injured-persons must have been present at
the spot and as the occurrence took place in ”broad day-
light”, there was no reason why their evidence should not be
accepted, “even though they might have one reason or the
other to falsely implicate one or the other
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accused”. It was wrong to conclude that the incident had
taken place in broad day-light and it was even more wrong
that the High Court did not warn itself of the danger of
accepting the evidence of witnesses who bad reason to
implicate the appellants falsely.
For these reasons we are of the view that the High Court was
not justified in interfering with the order of acquittal
passed by the learned Sessions Judge. We therefore allow
this appeal, set aside the order of conviction and sentence
and direct that the appellants shall be set at liberty, if
they are not already on bail.
P.B.R,
Appeal allowed.
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