Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7
PETITIONER:
BABU RAM AND OTHERS
Vs.
RESPONDENT:
STATE OF UTTAR PRADESH
DATE OF JUDGMENT01/02/1983
BENCH:
MISRA, R.B. (J)
BENCH:
MISRA, R.B. (J)
VENKATARAMIAH, E.S. (J)
CITATION:
1983 AIR 308 1983 SCR (2) 328
1983 SCC (2) 21 1983 SCALE (1)105
ACT:
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 2.
HEADNOTE:
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7
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 tho appeal under
section 2 of the Supreme Court (Enlargomont of Criminal
Appellate Jurisdiction) Act 1971.
Allowing tho 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, [1972] 3 S.C.R. 58,
followed.
1:2 In the instant cases a perusal of tho evidence
produced and the two judgments of the courts below make it
clear that tho 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 tho appellants by
treating the witnesses as interested and/or chance
witnesses. [336 D-E, 334 B-C]
JUDGMENT:
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 1971.
330
S.K. Mehta and M.K. Dua for the Appellant.
Dalveer Bhandari, H.M. Singh and Ranbir Singh Yadav for
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7
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. 498 IPC.
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7
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 father-in-law’s
house.
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7
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 it.
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7
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 below;
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
High Court.
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.
337