Full Judgment Text
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PETITIONER:
STATE OF UTTAR PRADESH
Vs.
RESPONDENT:
RAM KISHAN & OTHERS
DATE OF JUDGMENT13/02/1976
BENCH:
GOSWAMI, P.K.
BENCH:
GOSWAMI, P.K.
BHAGWATI, P.N.
CITATION:
1976 AIR 2016 1976 SCR (3) 379
1976 SCC (3) 449
CITATOR INFO :
R 1992 SC 125 (3)
ACT:
Appeal by State against acquittal-lnterference with the
decision of the High Court by the Supreme Court under Art.
136 of the Constitution-If the High Court reads the
prosecution evidence by introducing an extraneous gloss for
the purpose of its conclusion, resulting in failure of
justice. this Court should interfere.
"Material prejudice" to the accused-Alteration of the
conviction to section 326/34 in appeal when the original
charge and conviction were under s. 302/149 is not a
"material prejudice" Criminal Procedure Code (Act V of 1898-
Sections 222, 223 and 225)
HEADNOTE:
The accused and the deceased are close relatives, as
per the following pedigree:-
Ramcharan (1)
Ram Khelawan (2) Balram (3) Khuddi (4)
Vishwanath Shankar Kanker Channu Shivnath Jagannath
(PW)SI S2 S3 S4 (PW2)
(Deceased)
Sheo Murat Ram Kishan Shobha Moti Lal Bhagwantia
(Acd) SI (Acd) S2 (Acd) S3 (Acd) S4 (Sister) Dl
Shyam Lal
(Acd)
Vishwanath, Kanker, deceased Channu, Jagannath. accused
Ram Kishan along with his mother and sister Bhagwantia were
living in the ancestral house at village Bhiwanipur, while
the rest lived in a nearby separate house. On March 18,
1969, Vishwanath tried to pacify the quarrel between his
brother Kankar’s wife and Bhagwantia his cousin-sister and
when she refused to heed to his words, he gave one or two
slaps to Bhagwantia. The real brothers of Bhagwantia viz.,
Ram Kishan, Shobha, Moti Lal and Shyamlal s/o Ram Krishan-
all accused, went the next day to Vishwanath’s house and
demanded an explanation for beating Bhagwantia and wanted a
settlement. Since Vishwanath said there was nothing in fact
to be settled, Ram Kishan instigated the rest to beat
Vishwanath. Shobha caught hold of Vishwanath while Sheo
Murat dealt knife blows which resulted in two grievous
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incised injuries. Channu who came to the rescue was caught
hold of by Shyam Lal and Moti and Sheo Murat dealt knife
blows causing five fatal incised wounds and two abrasions to
which he succumbed. On the above version of the incident by
the injured Vishwanath, PW 1 in the complaint and in
evidence at the trial, which was unerringly corroborated by
PWs 9. 10. 13 and unshaken in the cross-examination, the
Sessions Court convicted Sheo Murat under s. 302/149 I.P.C.
for causing the death of Channu and under s. 307 /149 I P.C.
for attempting to murder Vishwanath, though the charges were
under s. 302, 307 and 148, I.P.C. and sentenced him to death
under s. 302, I.P.C.. seven years’ rigorous imprisonment
under s. 307 I.P.C. and to two years’ rigorous imprisonment
under s. 148. I.P.C. Accused Ram Kishan. Shobha. Moti Lal
and Shyamlal, the respondents in this Court were convicted
under s. 302/149 I.P.C., under s. 307 read with s. 149
I.P.C. and s. 147 I.P.C. They were sentenced to one year’s
rigorous imprisonment under s. 147 T.P.C. to seven year’s
rigorous imprisonment under s. 307/149 I.P.C. and to
imprisonment for life under s. 307 /149. The accused
appealed to the High Court and there was a reference under
s. 374 Cr. P.C. for the confirmation of death sentence. By a
common judgment, the High Court (i) set aside the conviction
and sentences
380
of all the present respondents and also that of Sheo Murat
under s. 148, I.P.C.; (ii) maintained the convictions under
s. 307 I.P.C. and also under s. 302 I.P.C. but altered the
death sentence to one of life imprisonment and rejected the
reference.
This Court rejected the State’s special leave petition
against the alteration of the death sentence but granted
special leave against the acquittal of the respondents alone
and issued non-bailable warrants.
Allowing the appeal, and convicting the accused and
sentencing them to different terms with the benefit of set
off under s. 428, Cr.P.C. (Act 2 of 1973), tho Court,
^
HELD: (1) It is well-established that in an appeal
against acguittal, this Court is slow to interfere under
Art. 136 of the Constitution with the decision of the High
Court. The possibility that it may just be reasonably
feasible for the Court to take a different vie v of the
evidence from that of the High Court is not the test in an
appeal against acquittal. [383-D-E]
(2) In the instant case, the injuries on the two
victims are "res ipso loquitor’ and tell-tale. The
prosecution case that Vishwanath was caught by Shobha and
Channu was caught hold of by Motilal and Shyamlal is
corroborated by the medical evidence. None of the stab
wounds are on any part of the hands or arms which would have
necessarily been caused. if the victims were not caught hold
of by a person or persons, while they were attacked with a
knife. It would be unnatural to expect that the victims
would not have exercised their natural instinct of self
preservation by trying to stave off the stab injuries by
raising their hands. And in that process if they were not
caught hold of by some person or persons, there would have
been one or two injuries on the hands or arms. The High
Court completely ignored this most relevant and important
aspect in the prosecution, when it observed:
"It is not at all clear from the prosecution evidence
whether Shobha k kept on holding Vishwanath till the
very end i.e. till both the knife injuries had been
caused to him, or whether he let go his hold as soon as
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Sheo Murat started the attack".
"There is nothing in the prosecution evidence to
indicate what order those injuries were caused to
Channu and whether or not the injuries on the back were
caused first".
This erroneous view taken by. the High Court of the
prosecution evidence adduceed in this case and the
introduction by the High Court of an extraneous gloss for
the purpose of its conclusion viz.,
"After reaching the house of Vishwanath they (the
accused persons) entered into a conversation which
became heated and ultimately ended in exchange of
abuses".
resulted in failure of justice. [383G-H, 384C-E]
(3) No prejudice is caused in the instant case to the
accused by alteration of the conviction to sections 326/34
although they had been originally charged under s. 302/149
and ss. 307/149, I.P.C. On the particular fact of the
prosecution case which clearly pointed to participation by
the respective accused with tho two attacks and which they
had to meet in the trial. [385F-G]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: CRIMINAL APPEAL No.
253 of 1971.
Appeal by Special leave from the Judgment and order
dated 11.2.1971 of the Allahabad High Court in Criminal
Appeal No. 1285/70.
O. P. Rana, For the appellant
Shiv Pujan Singh, for the respondent
The Judgment of the Court was delivered by
381
GOSWAMI, J.-This appeal by special leave at the
instance of the State of Uttar Pradesh is against the
judgment of acquittal of the High Court of Allahabad.
Balram, Ram Khelawan and Rhuddi are three sons of one
Ram Charan. The injured Vishwanath (PWI), Shankar, Kankar
and deceased Chhannu are sons of Balram. Accused Sheo Murat,
Ram Kishan, Shobha and Moti Lal are sons of Ram Khelawan.
Accused Shyam Lal is the son of accused Ram Kishan. Shiv
Nath (PW 2) e and Jagan Nath are sons of Bhuddi. Thus all of
them have branched off from Ram Charan and all the members
have got share in their ancestral house at village
Bhiwanipur. In this ancestral house Vishwanath, Kankar,
Chhannu, Jagan Nath and accused Ram Kishan along with his
mother and married younger sister Bhagwantia resided. All
others along with the rest of the four accused lived in a
nearby separate house.
on March 18, 1969, certain quarrel ensued between
Bhagwantia and Kankar’s wife Patia. Vishwanath tried to
pacify both the quarrelling women. Since Bhagwantia did not
heed to Vishwanath’s words, the latter gave her one or two
slaps. Ram Kishan and his brothers were not in the village
on that day but learning about this incident on the
following day accused Sheo Murat, Ram Kishan, Shobha, Moti
Lal and Shyam Lal went to Vishwanath’s place at about 7.00
or 8.00 P.M. What followed may be described in the words of
the in jured Vishwanath:
"On the next day at 7 or 8 P.M. I was sitting at
the door of my osara. My younger brothers, Kankar and
Chhannu, were sitting at a short distance from me at
the well. Sheonath, my cousin, was also sitting near
Kankar and Chhannu. A burning lantern was hanging from
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a bamboo pole outside the osara; and there was
sufficient light from it. Ram Kishan, Shobha, Sheo
Murat, Shyam Lal and Moti, accused present in the
court, came there, Ram Kishan asked from me as to why I
had slapped Bhagwantia and that I should come out and
settle up. I stood up and said, "Brother, what will you
settle up". At this Ram Kishan instigated his
companions saying, "Beat the salas". At once Shobha
caught hold of my hand and Sheo Murat dealt knife-blows
to me. Chhannu, my younger brother, came to save me,
whereupon Shyam Lal and Moti caught hold of him and
Sheo Murat started giving knife-blows to him. On
hearing their instigation, Mohan, Phool Chand, Budhi
and others came over there and began to forbid them.
Chhannu and I fell down on sustaining injuries. Then
all the five accused persons ran away with the knife."
What has been stated above by Vishwanath has been
repeated by Shiv Nath (PW 2), Hansla Prasad (PW 9). Phool
Chand (PW 10) and Sohan (PW 13). The story given by these
witnesses remains absolutely unshaken in the scanty cross-
examination by the defence. Indeed there was little or no
cross-examination with regard to the incident itself.
10-L522SCI/76
382
Deceased Chhannu had the following external injuries on
his person as stated by Dr. U. P. Singh who held the
autopsy:
(1) Incised stab wound 1/2X1/3", on right side
chest, 1" medical to right nipple going into
the chest cavity.
(2) Incised stab wound 1/2"x 1/4" x 1" to the
right of left nipple and 1" below it, going
into the chest cavity.
(3) Incised stab wound 1/2"x 1/4" abdominal
cavity deep, on lower part of right side
abdomen.
(4) Incised stab wound 1/2"x1/4"on lower part of
abdomen, 3" above the joint of hip-bones.
(S) Incised stab wound 1/2"x1/4" deep, on left
hip.
(6) Incised stab wound 1/2"x1/4" chest cavity
deep, on left side back, 6" below scapula.
(7) Abrasion 1/2"x 1/2" lateral aspect of right
elbow.
(8) Abrasion 1/2"x1/2" on lateral aspect of right
hand.
Internal examination revealed that the cartilage of fifth
rib had been cut under injury No. (3). There were punctured
wounds ill the chest cavity in relation to injury Nos. (1),
(2) and (6). Right vertrical of heart had a punctured wound
1/4"x1/4" and the pericardial cavity contained blood. The
upper lobe of left lung had a punctured wound 1/2" X 1/4"
in relation to injury No. 2. In the opinion of the Doctor
death was due to shock and haemorrhage resulting from
injuries to heart and lungs.
Another Doctor Siddiqui (PW 5) found the following
injuries on the person of Vishwanath:-
(1) Incised wound 1/4"x1/8"x 1 1/2" deep, on
front side of lower part of neck, directed
downwards, backwards and leftwords. The wound
was in the middle of the neck and 1" above
the bone. On coughing air passed through the
wound.
(2) Incised wound 1/2"x1/8"x3" or more than this,
abdominal cavity deep, 1 1/2" above and to
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the left of umbilious. Direction of wound was
backwards, slightly upwards and towards
centre of abdomen.
The injuries were fresh and described by the Doctor as
dangerous.
All the five accused were charged under section 302/149
IPC for causing the death of Chhannu and also under section
307/149 IPC for attempting to murder Vishwanath. While Sheo
Murat was charged under section 149 IPC the other four
accused were charged also under section 147 IPC. The
Sessions Judge convicted accused Sheo Murat under section
148, 307 and 302 IPC. He was sentenced to death under
section 302 IPC, to seven years rigorous imprisonment under
section 307 IPC, and to two years rigorous imprisonment
under section 148 IPC. Accused Ram Kishan, Shobha, Moti Lal
and Shyam Lal (the present respondents) were convicted under
section 302/149 IPC, section 307 read with section 149 and
section
383
147 IPC. These four accused were sentenced to one
year’s rigorous A imprisonment under section 147 IPC, to
seven years’ rigorous imprisonment under section 307/149 IPC
and to imprisonment for life under section 302/149 IPC. The
sentences of all the accused were to run concurrently. The
accused appealed to the High Court. There was also a
reference under section 374, Criminal Procedure Code, to the
High Court for confirmation of the death sentence on Sheo
Murat. Both the matters were heard together by the High 1
Court and a common judgment was delivered on February 11,
1971. The High Court maintained conviction and sentence of
the accused Sheo Murat under section 307 IPC and also
maintained his conviction under section 302 IPC but reduced
the sentence to imprisonment for life. The conviction and
sentence of Sheo Murat under section 148 IPC were, however,
set aside. The conviction and sentence of the four other
accused (the present respondents) were set C aside.
The State prayed for special leave against the
rejection of the reference by reducing the death sentence to
imprisonment for life but this Court rejected the same. The
State’s special leave application with regard to the
respondents’ acquittal was, however, admitted on October 13,
1971 and non-bailable warrants were issued against them. We
are, therefore, not concerned in this appeal with the
conviction of accused Sheo Murat, who was the assailant of
the deceased as well as of Vishwanath.
We have to consider whether the High Court has
committed a grave and palpable error in acquitting the
respondents resulting in miscarriage of justice.
It is well-settled that in an appeal against acquittal
this Court is slow to interfere with the decision of the
High Court, even though it has interfered with the
conviction by the trial court, where the same is reached
after a proper appreciation of the entire evidence. The
possibility that it may just be reasonably feasible for this
Court to take a different view of the evidence from that of
the High Court is not the test in an appeal against
acquittal. Even so, we are unable in this case to sustain
the order of the High Court for the reasons, which will
presently follow.
We have already quoted the evidence of Vishwanath which
is unerringly corroborated by all the other eye witnesses.
Both the trial court as well as the High Court believed the
evidence. Indeed the High Court has observed and, in our
opinion, rightly that "there is no infirmity in the
prosecution case". We then find that the High Court has read
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the evidence in a rather unusual way which is at once
obvious when we peruse the judgment. We are not told
wherefrom the High Court could describe the evidence as
follows:-
"After reaching the house of Vishwanath they (the
accused persons) entered into a conversation which
became heated and ultimately ended in exchange of
abuses".
The High Court also observed that-
"it is not at an clear from the prosecution
evidence whether Shohha kept on holding Vishwanath till
the very end i.e.
384
till both the knife injuries had been caused to him, or
whether he let go his hold as soon as Sheo Murat
started the attack".
The High Court further observed that-
"there is nothing in the prosecution evidence to
indicate in what order those injuries were caused to
Chhannu, and whether or not the injuries on the back
were caused first". The High Court further gave unusual
importance to the statement of PW 13 when he deposed in
cross-examination to the following effects:-
"I cannot remember whether the two persons who had
caught hold of Chhannu had held him from the front or
from the back or from the side. Further, I do not
remember whether they were holding him each with both
his arms or whether each of them held him only with one
arm. I do not re collect whether Sheo Murat had caused
injuries to Chhannu from the front side or from the
back side".
We are unable to appreciate how the evidence of PW 13,
who could not remember certain details, could help the court
in coming to any conclusion for the purpose of displacing
the clear and unambiguous prosecution evidence.
The injuries on the two victims are res, ipso loquiter
and tell-tale. Accused Shobha caught hold of Vishwanath’s
hands and Sheo Murat gave him two stab blows, one on the
neck and the other on the abdomen. When deceased Chhannu
advanced in order to save Vishwanath he was caught by
accused Shyam Lal and Moti Lal and Sheo Murat gave as many
as six stab injuries in quick succession. None of these stab
wounds are on any part of the hands or arms which would have
necessarily been caused if the victims were not caught hold
of by a person or persons while they were attacked with a
knife. It would be unnatural to expect that the victims
would not have exercised their natural instinct of self
preservation by trying to stave off the stab in juries by
raising their hands. And in that process if they were not -
caught hold of by some person or persons there would have
been one or two injuries on the hands or arms. This would
clearly go to show that the story that Vishwanath was caught
by Shobha and Chhannu was caught by Moti Lal and Shyam Lal,
as deposed to by the PWs, stands corroborated by the medical
evidence. The High Court completely ignored this most
relevant and important aspect in the prosecution case but
felt satisfied to acquit the accused on the sole ground that
there was no evidence to show whether Shobha caught
Vishwanath all the time when the two blows were given and
also whether Moti Lal and Shyam Lal were catching hold of
deceased Chhannu during the entire period of the assault.
The High Court particularly felt in that direction because
PW 13 being an independent witness could not re collect
certain things to which we have already referred to above.
The injuries would clearly show that the victims were caught
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hold of by a Person or persons when these were inflicted
upon them.
We are clearly of opinion that this is a completely
erroneous view of the prosecution evidence adduced in this
case resulting in failure of justice. We are further
satisfied that if the High Court had not read
385
the evidence by introducing an extraneous gloss for the
purpose of its A conclusion it could not have acquitted the
accused.
It is also evidence that the accused came in a body to
challenge Vishwanath for the previous day’s incident.
Although the four respondents were unarmed, Sheo Murat had a
knife with him. There is nothing to show from the evidence
that Vishwanath gave any provocation to the accused persons.
He only replied to the challenge by saying "Brother, what
will you settle up" ? At this Ram Kishan instigated the
other accused persons saying "beat the salas". At once
accused Shobha caught held of Vishwanath’s hands and Sheo
Murat stabbed him twice with his knife. Assunung the
respondents had no earlier knowledge about Sheo Murat’s
carrying a knife, from this moment they came to know that
Sheo Murat had a knife with which he had already stabbed
Vishwanath. What did they then do when deceased Chhannu came
to the aid of Vishwanath to save him from further assault ?
Now Moti Lal and Shyam Lal caught hold of Chhannu and Sheo
Murat inflicted several stab blows in quick succession. It
is, therefore, clear that Moti Lal and Shyam Lal shared the
common intention with Sheo Murat in inflicting stab injuries
to Chhannu by participating in the assault.
Sheo Murat has been convicted under section 302 IPC. We
may only give these two accused Moti Lal and Shyam Lal
benefit of doubt with regard to participation with Sheo
Murat in the common intention to cause death of Chhannu. It
is, however, absolutely impossible to relieve them of any
liability whatsoever in connection with the stab injuries
which were facilitated by their catching hold of Chhanu when
Sheo Murat was inflicting the stab wounds. There is no
escape from the conclusion on this evidence that Moti Lal
and Shyam Lal shared at least the common intention. with
Sheo Murat to cause grievous hurt under section 326 IPC. A
clear case has been established against both the accused
persons under section 326/34 IPC. They are, therefore,
convicted under section 326/34 IPC and sentenced to four
years’ rigorous imprisonment.
With regard to accused Ram Kishan he merely instigated
by saying "beat the salas". He is the person who started the
affair by challenging Vishwanath and also instigating the
other accused persons to beat. From this alone it is not
possible to attribute to him any common intention to cause
more than simple assault. He is, therefore, found guilty
only under section 323/109 IPC. He is, therefore, convicted
under section 323/109 IPC and sentenced to rigorous
imprisonment for one year.
Accused Shobha, who caught hold of Vishwanath to
facilitate the two stab injuries on him by Sheo Murat, is
also guilty under section 326/34 IPC. We are prepared to
give him the benefit of doubt only with regard to section
307 IPC but the evidence clearly establishes the case under
section 326/34 lPC. He is accordingly convicted under
section 326/34 IPC and sentenced to four years’ rigorous
imprisonment.
386
We should observe that no prejudice is caused to the
accused by alteration of the conviction to section 326/34
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although they had been originally charged under section
302/149 and section 307/149 IPC on the particular facts of
the prosecution case which clearly pointed to participation
by the respective accused in the two attacks and which they
had to meet in the trial.
Since the respondents are detained in jail in pursuance
of the non-bailable warrants issued by this Court on October
13, 1971, at the time of granting special leave, they will
be entitled to the benefit of section 438, Criminal
Procedure Codes, and that period shall be set off against
the sentences which we have passed in this apepal.
In the result the judgment of the High Court is set
aside, the appeal is allowed and the four accused stand
convicted and sentenced as aforesaid subject to the
observations mentioned above.
S.R. Appeal allowed.
387