Full Judgment Text
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PETITIONER:
STATE OF U.P.
Vs.
RESPONDENT:
RAM SWARUP & ANR.
DATE OF JUDGMENT02/05/1974
BENCH:
CHANDRACHUD, Y.V.
BENCH:
CHANDRACHUD, Y.V.
BEG, M. HAMEEDULLAH
KRISHNAIYER, V.R.
CITATION:
1974 AIR 1570 1975 SCR (1) 409
1974 SCC (4) 764
CITATOR INFO :
R 1977 SC 170 (6)
F 1980 SC 660 (16)
R 1990 SC1459 (21)
ACT:
Criminal Law--Murder--Private defence, right of.
Appeal--Appeal against acquittal--Locus standi of State to
appeal under article 136.
HEADNOTE:
G and deceased M were trade rivals. At about 7 a.m. G went
to purchase a basket of melons from the deceased. The
deceased declined to sell it. Hot words followed. G left in
a huff. An hour later G went to the market with his son R
and two other sons. G had a knife R a gun and the others
carried lathis. They advanced aggressively towards the
deceased who attempted to retreat. R shot him dead at point
blank range. The Learned Sessions Judge convicted R under
section 302 and sentenced him to death. G was convicted
under section 302 read with section 34 and was sentenced to
imprisonment for life. The other two sons were acquitted of
all the charges. On appeal, the High Court of Allahabad
acquitted R and G and confirmed the acquittal of the other
sons.
HELD : Confirming the acquittal of G but restoring the
conviction of R and awarding life sentence,
(i) The burden which rests on the prosecution to establish
its case beyond reasonable doubt is neither neutralised nor
shifted because the accused pleads the right of private
defence. The prosecution must discharge its initial
traditional burden to establish the complicity of the
accused and until it does so, the question whether the
accused has acted in self defence or not does not arise.
The Sessions Court accepted the evidence of 5 prosecution
witnesses after a careful Secreting and the High Court was
unduly suspicious of that evidence in the name of caution.
Caution is safe and unfailing guide in the judicial armory
but a cautious approach does not justify an a priori assump-
tion that the case is surrounded in suspicion. Murders are
not committed by coolly weighing the pros and cons. [412C-F,
H; 414A]
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(ii) The right of private defence is a right of defence. not
of a retribution. It is available in face of imminent peril
to those who act in good faith and in no case can the right
be conceded to a person who stage-manages the situation
wherein the right can be used as a shield to justify an act
of aggression. Evidently the accused went to the market
with a preconceived design to pick up a quarrel. It is a
necessary incident of the right of private defence that the
force used must bear a reasonable proportion to the injury
to be averted. There was no justification for killing the
deceased selectively. The right of defence ends with the
necessity for it. When a person is accused of an offence
the burden of proving the existence of circumstances
bringing the case within any of the general exceptions in
the Penal Code is upon him and the court shall presume the
absence of such circumstances. The right of private defence
constitutes a general exception to the offences defined in
the Penal Code. The burden which rests on the accused to
prove the exception is not of the same rigour as the burden
of the prosecution to prove the charge beyond a reasonable
doubt. It is enough for accused to show as in a civil case
that the preponderance of probabilities is in favour of his
plea. The respondents led no evidence to prove their
defence but that is not necessary because such proof can be
offered by relying on the evidence led by, the prosecution,
the material elicited by cross-examining the prosecution
witnesses and the totality of facts and circumstances
emerging out of the evidence in the case. The conclusion of
the High Court in regard to Ram Swarup being plainly
unsupportable and leading to- a manifest failure of justice
it was set aside and the order of the Sessions Court
convicting him under section 302 of the Penal Code was
restored. The sentence was however. reduced to life
imprisonment since the possibility of scuffle cannot be
excluded. [414H; 416D-417G]
410
In regard to G although if this Court was to consider the
case independently it might have come to a conclusion
different from the one arrived at by the High Court, in view
of the principles governing appeals under Article 136 the
order passed by the High Court was not disturbed. [418A-D]
(iii) The locus standi of State Governments to file
appeals in this Court against judgments or orders rendered
in criminal matters has been recognised over the years for a
valid reason namely, all crimes raise problems of law and
order and some raise issues of public disorder. The State
Governments are entrusted with the enforcement and execution
of laws directed against prevention and punishment of
crimes. They have, therefore a vital stake in criminal
matters. The objection that the State Government has no
locus standi to file the appeal must be rejected. [421A-C]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 192
of 1972.
Appeal by special leave from the Judgment and order dated
the 13th October, 1971 of the Allahabad High Court in Crl.
A. No. 672 of 1971.
D. P. Uniyal and O. P. Rana, for the appellants
Frank Anthony, A. K. Garg, Santokh Singh and Ramesh Sharma,
for respondent No. 1.
R. K. Garg and Santokh Singh, for respondent No. 2.
Nurrudin Ahmed and U. P. Singh, for the complainant.
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The Judgment of the Court was delivered by
CHANDRACHUD, J. On the morning of June 7, 1970 in the Subzi
Mandi at Badaun, U.P., a person called Sahib Datta Mal alias
Munimji was shot dead. Ganga Ram and his three sons, Ram
Swarup, Somi and Subhash were prosecuted in connection with
that incident. Ram Swarup was convicted by the learned
Sessions Judge, Badaun, under section 302, Panel Code, and
was sentenced to death. Ganga Ram was convicted under
section’302 read with section 34 and was sentenced to
imprisonment for life. They were also convicted under the
Arms Act and sentenced to concurrent terms of imprisonment.
Somi and Subhash were acquitted of all the charges as also
was Ganga Ram of a charge under section 307 of the Penal
Code in regard to an alleged knife-attack on one Nanak
Chand.
The High Court of Allahabad has acquitted Ganga Ram and Ram
Swarup in an appeal filed by them and has dismissed the
appeal filed by the State Government challenging the
acquittal of Somi and Subhash. In this appeal by special
leave we are concerned only with the correctness of the
judgment of acquittal in favour of Ganga Ram and Ram Swarup.
Except for a solitary year, Ganga Ram held from the
Municipal Board of Badaun the contract of Tehbazari in the
vegetable market from 1954 to 1969. The deceased Munimji
out-bid Ganga Ram in the annual auction of 1970-71 which led
to the day-light outrage of June 7, 1970.
411
At about 7 a.m. on that day Ganga Ram is alleged to have
gone to the market to purchase a basket of melons. The
deceased declined to sell it saying that it was already
marked for another customer. Hot words followed during
which the deceased, asserting his authority, said that he
was the Thekedar of the market and his word was final.
Offended by this show of authority, Ganga Ram is alleged to
have left in a huff.
An hour later Ganga Ram went back to the market with his
three sons, Ram Swarup, Somi and Subhash. Ganga Ram had a
knife, Ram Swarup bad a gun and the two others carried
lathis. They threw a challenge saying that they wanted to
know whose authority prevailed in the market. They advanced
aggressively to the gaddi of the deceased who, taken by
surprise, attempted to rush in a neighbouring kothari. But
that was much too late for before he could retreat, Ram
Swarup shot him dead at point-blank range.
It was at all stages undisputed that Ganga Ram and Ram
Swarup went to the market at about 8 a.m. that one of them
was armed with a gun and that a shot fired from that gun by
Ram Swarup caused, the death of Munimji.
Though there was no direct evidence of the 7 O’clock
incident the learned Sessions Judge accepted the prosecution
case that the shooting was preceded by that incident. In
coming to that conclusion the learned Judge relied upon the
evidence of Sona Ram, Nanak Chand, Shanti Lal, Shariat Ullah
and Shiva Dutta Mal (P. Ws. 1 to 5) to whom the deceased had
narrated the incident. These witnesses were also examined
in order to establish the main incident and their evidence
in that regard was also accepted by the learned Judge.
Having found that these witnesses were trustworthy and that
their evidence established the, case of the prosecution the
learned Judge proceeded to consider whether as contended by
Ganga Ram and Ram Swarup the shot was fired by Ram Swarup in
exercise of the right of private defence. Adverting to a
variety of circumstances the learned Judge rejected that
theory and held that the charges levelled against the two
accused were, proved beyond a reasonable doubt,
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The High Court disbelieved the evidence in regard to the 7
O’clock incident. In any case, according to the High Court,
that incident was far to trifling to lead to the shooting
outrage. The High Court accepted the defence version that a
scuffle bad taken place between the deceased Munimji and
Ganga Ram and that Ganga Ram was assaulted with lathis by
Shiva Dutta Mal (P.W. 5) and the servants of the deceased.
The High Court concluded :
"If Ganga Ram was being given repeated lathi
blows by P.W. Shiva Dutta Mal and, servants of
the deceased, then Ram Swarup had full
justification to fire his gun in the right of
private defence of the person of his father.
It ’May be that the gun fire injured the
deceased, rather
412
than those who were belaboring Ganga Ram with
lathis. But once we come to the conclusion
that it was not unruly that Ram Swarup had
used his gun in the circumstances narrated
above, i.e. in order to save his aged father
from the clutches and assaults of his
assailants, he cannot be held guilty of murder
or for the matter of that of any other
offence".
In regard to Ganga Ram the High Court held that he could not
be found guilty under section 302 read with section 34 "as
his presence in the Subzimandi was not for the purpose of
killing the deceased, as suggested by the prosecution, but
he had more probably reached there alongwith his son Ram
Swarup, on way back from their vegetable farm, in order to
purchase melons.
The burden which rests on the prosecution to establish its
case beyond a reasonable doubt is neither neutralised nor
shifted because the accused pleads the right of private
defence. The prosecution must discharge its initial
traditional burden to establish the complicity of the
accused and not until it does so can the question arise
whether the accused had acted in self-defence. this
position, though often overlooked, would be easy to
understand if it is appreciated that the Civil Law rule of
pleadings does not govern the rights of an accused in a
criminal trial. Unlike in a civil case, it is open to a
criminal court to find in favour of an accused on a plea not
taken up by him and by so doing the court does not invite
the charge that it has made out a new case for the accused.
The accused may not plead that he acted in self-defence and
yet the court may find from the evidence of the witnesses
examined by the prosecution and the circumstances of the
case either that what would otherwise be an offence is not
one because the accused has acted within the strict confines
of his right of private defence or that the offence is
mitigated because the right of private defence has been
exceeded. For a moment, therefore, we will keep apart the
plea of the accused and examine briefly by applying the
well-known standard of proof whether the prosecution, as
held by the Sessions Court, has proved its case.
The evidence of the five witnesses--Sona Ram, Nanak Chand,
Shanti Lal, Shariat Ullah, Shiva Dutta Mal is consistent and
convincing on the broad points of the case. The Sessions
Court accepted that evidence after a careful scrutiny and we
are inclined to the view that the High Court was unduly
suspicious of that evidence in the name of caution. The
High Court thought that the evidence of these witnesses must
be viewed with great caution because Sona Ram and Shanti Lal
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are the first cousins of the deceased, Nanak Chand and Shiva
Dutta Mal were co-sharers of the deceased in the Tehbazari
contract, Shariat Ullah was a constituent of the deceased
and because Sona Ram, Nanak Chand and Shiva Dutta Mal being
co-sharers in the contract should have been moving about the
market rather than remain at the gaddi of the deceased where
he was shot down. Caution is a safe and unfailing guide in
the judicial armoury but a cautious approach does not
justify an a priori assumption that the case is shrouded in
suspicion. This is
413
exemplified by the rejection of the melon incident by the
High Court on the grounds, inter alia, that there was no
entry in the account books of the deceased evidencing the
sale of the melon-basket and that the owner of the melons
was not called to support the prosecution case. The point
in issue was not whether the melon-basket was in truth and
reality sold to another customer, in which case the evidence
of the owner and the account books of the deceased would
have some relevance. The point of the matter was that three
was trade rivalry between the deceased and Ganga Ram, their
relations were under a deep strain and therefore the
deceased declined to sell the melons to Ganga Ram The excuse
which the deceased trotted out, may be true or false. And
indeed, greater the falsity of that excuse greater the
affront to Ganga Ram.
The melon incident-formed a prelude to the main occurrence
and was its immediate cause. By disbelieving it or by
treating it alternatively as too trifling the High Court was
left to wonder why Ganga Ram and Ram Swarup went to the
market armed with a gun, which they admittedly did. The
case of the prosecution that they went back to the market to
retaliate against the highhandedness of the deceased was
unacceptable to the High Court because "it does not stand to
reason that the appellants and their two other companions
(sons of Ganga Ram) would walk into the lion’s den in broad
day light and be caught and beaten up, and even be done to
death by the deceased, his partners and servants, besides
hundreds of people who were bound to be present in the
Sabzimandi at about 8 A.M. Such a large congregation could
have easily disarmed the appellants and their two other
companions and given_them a thorough beating if not mortal
injuries". Evidently, they did go to the market which to
their way of thinking was not a lion’s den. And they went
adequately prepared to meet all eventualities. The large
congregation of which the Court speaks is often notoriously
indifferent to situations involving harm or danger to others
and it is contrary to common experience that anyone would
readily accost a gun-man in order to disarm him.
The High Court saw yet another difficulty in accepting the
prosecution case
"Even if the appellants and their companions
would have been so very hazardous, they could
not have exposed their lives by carrying only
one cartridge in the gun, if they had really
gone to murder the deceased and make a safe
retreat. It might very well have been that
the first shot went stray and did not hit the
deceased. It was, therefore, necessary to
have at least both the barrels loaded with
cartridges. In fact one would expect the
ready availability of more cartridges with the
appellants, because they were bound to fire
some rounds of shots to create a scare in the
crowded Sabzimandi, before making good their
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escape. For this reason also one would expect
them to keep both the barrels loaded with
cartridges and also to carry some spare
cartridges for the sake of contingency and
safety."
414
Murders like the one before us are not committed by coolly
weighing the pros and cons. Ganga Ram and Ram, Swarup were
wounded by .the high and mighty attitude of a trade rival
and they went back to the market in a state of turmoil.
They could not have paused to bother whether the double-
barrelled gun contained one cartridge or two any more than
an assailant poised to stab would bother to take a spare
knife. On such occasions when the mind is uncontrollably
agitated, the assailants throw security to the winds and
being momentarily blinded by passion are indifferent to the
’consequences of their action. The High Court applied to
the mental processes of the respondents a test far too rigid
and unrealistic than was justified by the circumstances of
the case and concluded
"It is noteworthy that P.W. 1 Sona Ram clearly
admits that Ganga Ram had a farm in village
Naushera, which is at a distance of two miles
from Badaun. It is very likely that the two
appellants must have been going every early
morning to have a round of their vegetable
farm and returning home therefrom at about 8
A.M. in the sultry month of June. It is not
surprising that on such return to Badaun on
the morning of June 7, 1970 the appellants
went to the Sabzimandi in order to purchase
melons, when they were called to the Gaddi of
the deceased, ultimately resulting in the
fatal occurrence as suggested by the defence."
The High Court assumed without evidence that Ganga Ram used
to carry a gun to his vegetable farm and the whole of the
conclusion reproduced above would appear to be based on the
thin premise that Sona Ram had admitted that Ganga Ram had a
village farm situated at distance of two miles from Badaun.
We find it impossible to agree with the reasons given by the
High Court as to why Ganga Ram and Ram Swarup went to the
market and how they happened to carry a gun with them. It
is plain that being slighted by the melon incident, they
went to the market to seek retribution.
The finding recorded by the High Court that the respondents
went to the market for a casual purchase and that they
happened to have a gun because it was their wont to carry a
gun is the very foundation of its acceptance of the theory
of private defence set up by the respondents. According to
the High Court a routine visit to the market led to an
unexpected quarrel between the deceased and Ganga Ram, the
quarrel assumed the form of grappling, the grappling
provoked the servants of the deceased to beat Ganga Ram with
lathis and the beating impelled Ram Swarup to use the gun in
defence of his father. Our view of the genesis of the
shooting incident must, at the very threshold, deny to the
respondents the right of private defence.
The right of private defence is a right of defence, not of
retribution. It is available in face of imminent peril to
those who act in good faith and in no case can the right be
conceded to a person who stage-manages a situation wherein
the right can be used as a shield to justify an act of
aggression. If a person goes with a gun to kill another,
the intended victim is entitled to act in self-defence and
if be
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415
so acts there is no right in the former to kill him in order
to prevent him from acting in self-defence. While providing
for the right of private defence, the Penal Code has surely
not devised a mechanism whereby an attack may be provoked as
a presence for killing.
Angered by the rebuff given by the deceased while declining
to sell the melons, Ganga Ram went home and returned to the
market with the young Ram Swarup who, on the finding of the
High Court, carried a gun with him. Evidently, they went to
the market with a preconceived design to pick up a quarrel.
What semblance of a right did they then have to be piqued at
the resistance put up by the deceased and his men ? They
themselves were the lawless authors of the situation in
which they found themselves and though the Common Law
doctrine of "retreat to the wall" or retreat to the ditch"
as expounded by Blackstone(1) has undergone modification and
is not to be applied to cases where a victim, being in a
place where he has a right to be, is in face of a grave
uninvited danger, yet, at least those in fault must attempt
to retreat unless the severity of the attack renders such a
course impossible. The exemption from retreat is generally
available to the faultless alone.
Quite apart from the consideration as to who was
initially at fault, the extent of the harm which may
lawfully be inflicted in self-defence is limited. It is a
necessary incident of the right of private defence that the
force used must bear a reasonable proportion to- the injury
to be averted, that is, the injury inflicted on the
assailant must not be greater than is necessary for the
protection of the person assaulted. Undoubtedly, a person in
fear of his life is not expected to modulate his defence
step by step or tier by tier for as Justice Holmes said in
Brown vs. United States (2) "detached reflection cannot be
demanded in the presence of an uplifted knife". But section
99 provides in terms clear and categorical that "The right
of private defence in no case extends to the inflicting of
more harm than it is necessary to inflict for the purpose of
defence".
Compare for this purpose the injuries received by Ganga
Ram with the injuries caused to the deceased in the alleged
exercise of the right of private defence. Dr. N. A. Farooqi
who examined Ganga Ram found that he had four contusions on
his person and that the injuries were simple in nature.
Assuming that Ganga Ram had received these injuries before
Ram Swarup fired the fatal shot, there was clearly no
justification on the part of Ram Swarup to fire from his
gun at pointblank range. Munimji was shot on the chest and
the blackening and tabooing around the wound shows that Ram
swarup fired his shot from a very close range. Under section
100 of the Penal Code the right of private defence of the
body extends to the voluntary causing of death if the
offence which occasions the exercise of the right is of such
a nature as may, to the extent material, reasonably cause
the apprehension that death or grievous hurt will otherwise
be, the consequence of the assault. Considering the nature
of injuries received by Ganga Ram, it
(1) Blackstone’s Commentaries, Book IV, p. 185.
(2) (1921) 256 U.S.
416
is impossible to hold that there could be a reasonable
apprehension that he would be done to death or even that
grievous hurt would be caused to him.
The presence of blood near the door leading to room No. 2
and the pellet marks on the door frame show that Ram Swarup
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fired at the deceased when the latter was fleeing in fear of
his life. In any event, therefore, there was no
justification for killing the deceased selectively. The
right of defence ends with the necessity for it. Under
section 102, Penal Code, the right of private defence of the
body commences as soon as a reasonable apprehension of
danger to the body arises and it continues as long as such
apprehension of danger continues. The High Court refused to
attach any significance to the pellet-marks on the door-
frame as it thought that "the gun fire which hit the
chaukhat was not the one which struck the deceased". But
this is in direct opposition to its own view that the
respondents had loaded only one cartridge in the gun-a
premise from which it had concluded that the respondents
could not have gone to the market with an evil design.
Ballistically, there was no reason to suppose that the shot
which killed the deceased was not the one which hit the door
frame. It is quite clear that the deceased was shot after
he had left his gaddi and while he was about to enter room
No. 2 in order to save his life.
It would be possible to analyse the shooting incident more
minutely but it is sufficient to point out that under
section 105 of the Evidence Act, when a person is accused of
any offence, the burden of proving the existence of
circumstances bringing the case within any of the General
Exceptions in the Penal Code is upon him and the court shall
presume the absence of such circumstances. The High Court
must, of course, have been cognizant of this provision but
the Judgment does not reflect its awareness of the provision
and this we say not merely because section 105 as such has
not been referred to in its Judgment. The importance of the
matter under consideration is that sections 96 to 106 of the
Penal Code which confer and define the limits of the right
of private defence constitute a general exception to the,
offences defined in the Code; in fact these sections are a
part of Chapter IV headed "General Exceptions". Therefore,
the burden of proving the existence of circumstances which
would bring the case within the general exception of the
right of private defence is upon the respondents and the
court must presume the absence of such circumstances The
burden which rests on the accused to prove that any of the-
general exceptions is attracted does not absolve the
prosecution from discharging its initial burden and truly,
the primary burden never shifts save when a statute
displaces the presumption of innocence; "indeed, the
evidence, though insufficient to establish the exception,
may be sufficient to negative one or more of the ingredients
of the offence(1)". That is to say an accused may fail to
establish affirmatively the existence of circumstances which
would bring the case within a general exception and yet the
facts and circumstances proved by
(1) K.M. Nanavati vs. State of Maharashtra; [1962] (1)
Supp. S.C.R. p. 567 a p. 598.
417
him while discharging the burden under section 105 of the
Evidence Act may be enough to cast a reasonable doubt on the
case of the prosecution, in which event he would be entitled
to an acquittal.(1) The burden which rests on the accused to
prove the exception is not of the same rigour as the burden
of the prosecution to prove the charge beyond a reasonable
doubt. It is enough for the accused to show, as in a civil
case, that the preponderance of probabilities is in favour
of his plea. (2)
The judgment of one of us, Beg J., in Rishikesh Singh v.
State(3) explains the true nature and effect of the
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different types of presumption sing under section 105 of the
Evidence Act. As stated in that judgment, while the initial
presumption regarding the absence of circumstances bringing
the case within an exception may be met by showing the
existence of appropriate facts, the burden to establish a
plea of private defence by a balance of probabilities is a
more difficult burden to discharge. The judgment points out
that despite this position there may be cases where, though
the plea of private defence is not established by an accused
on a balance of probabilities, yet the totality of facts and
circumstances may still throw a reasonable doubt on the
existence of "mens rea", which normally is an essential
ingredient of an offence. The present is not a case of this
latter kind. Indeed realising that a simple plea of private
defence may be insufficient to explain the nature of
injuries caused to the deceased, Ram Swarup suggested that
the shot fired by him at the assailants of his father Ganga
Ram accidentally killed the deceased. We have no doubt that
the act of Ram Swarup was deliberate and not accidental.
The respondents led no evidence to prove their defence but
that is not necessary because such proof can be offered by
relying on the evidence led by the prosecution, the material
elicited by cross-examining the prosecution witnesses and
the totality of facts and circumstances emerging out of the
evidence in the case. In view of the considerations
mentioned earlier we find it impossible to hold that Ram
Swarup fired the shot in defence of his father Ganga Ram.
The circumstances of the case negative the existence of such
a right.
The conclusion of the High Court in regard to Ram Swarup
being plainly unsupportable and leading as it does to a
manifest failure of justice, we set aside the order
acquitting Ram Swarup and restore that of the Sessions Court
convicting him under section 302 of the Penal. Code. The
possibility of a scuffle, of course not enough to justify,
the killing of Munimji but bearing relevance on the sentence
cannot, however, be excluded and we would therefore reduce
the sentence of death imposed on Ram Swarup by the Sessions
Court to that of life imprisonment. We also confirm the
order of conviction and sentence under section 25 (1) (a)
and section 27 of the Arms Act and direct that all the
sentences shall run concurrently.
(1) Dahyabhai Chhaganbhai Thakker vs. State of Gujarat;
[1964] 7 S.C.R. 361
(2) Dahyabhai Chhaganbhai Thakker vs. State of Gujarat;
Supra; Munshi Ram and Ors. vs. Delhi Administration, A.I.R.
1968, S.C. 702.
(3) A.I.R. 1970 All. 51
418
In regard to Ganga Ram, however, though if we were to
consider his case independently for ourselves we might have
come to a conclusion different from the one to which the
High Court has come, the principles governing appeals under
Article 136 of the Constitution would require of us to stay
our hands. The incident happened within the twinkling of an
eye and there is no compelling reason to differ from the
concurrent finding of the High Court and the Sessions Court
that Ganga Ram never carried the gun and that at all stages
it was Ram Swarup who had the gun. The finding of the
Sessions Court that "Ram Swarup must have shot at the,
deceased at the instigation of Ganga Ram" is based on no
evidence for none of the five eye-witnesses speaks of any
such instigation. On the contrary, Shariat Ullah (P.W. 4)
says that "As soon as they came, Ram Swarup opened the gun-
fire" and Shiva Dutta Mal (P.W. 5) says that "Just after
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coming forward, Ram Swarup opened the gun-fire". The
evidence of the other three points in the same direction.
True that these witnesses have said that Ganga Ram and Ram
Swarup challenged with one voice the authority of the
deceased but in discarding that part of the evidence we do
not think that the High Court has committed any palpable
error requiring the interference of this Court. Such trite
evidence of expostulations on the eve of an attack is often
spicy and tends to strain one’s credulity. We therefore
confirm the order of the High Court acquitting Ganga Ram of
the charge under section 302 read with section 34 of the
Penal Code.
The High Court was clearly justified in acquitting Ganga Ram
of the charge under section 307, Penal Code, in regard to
the knife-attack on Nanak Chand. Nanak Chand received no
injury at all and the story that the knife-blow missed Nanak
Chand but caused a cut on his kurta and Bandi seems
incredible. The High Court examined these clothes but found
no cut marks thereon. Tears there were on the Kurta and
Bandi but it is their customary privilege to be torn. With
that, the conviction and sentence under the Arms Act for
possession of the knife had to fall.
There is no substance in the charge against Ganga Ram under
section 29 (b) of the Arms Act because he cannot be said to
have delivered his licensed gun to Ram Swarup. The better
view is that Ram Swarup took it.
We, therefore, confirm the order of acquittal in favour of
Ganga Ram on all the counts.
This disposes of the appeal on merits.
Mr. Garg had raised a preliminary objection to the
maintainability of this appeal which, we thought, was devoid
of substance and could briefly be dealt with at the end of
the judgment. He argues that the State Government has no
locus stand to file in this Court an appeal against an order
of acquittal passed by the High Court because no such right
is conferred by the Code of Criminal Procedure or by the
Constitution and there can be no right of appeal unless one
is clearly given by statute.
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The Code of Criminal Procedure does not provide for an
appeal to this Court. In Chapter XXXI ("of Appeals"), the
only reference to an appeal to the Supreme Court is to be
found in section 426(2B) which empowers the High Court to
suspend the sentence and enlarge an accused on bail if the
Supreme Court has granted to him special leave to appeal
against any sentence which the High Court has imposed or
maintained. But by section 417(1) of the Code the State
Government may, in any case, direct the Public Prosecutor to
present an appeal to the High Court from an original or
appellate order of acquittal passed by. any court other than
a High Court. It is in pursuance of this power that State
Governments file appeals in the High Court against orders of
acquittal passed by courts subordinate to the High Court.
Article 132(1) of the Constitution provides that an appeal
shall lie to the Supreme Court from any judgment, decree or
final order of a High Court, whether in a civil, criminal or
other proceeding, if them High Court certifies that the case
involves a substantial question of law as to the
interpretation of the Constitution. Where the High Court
has refused to give such a certificate, the Supreme Court
may under clause (2) of Article 132 grant special leave to
appeal if it is satisfied that the case involves a
substantial question of law as to the interpretation of the
Constitution. Where such a certificate is given or special
leave is granted, "any party in the case" may, under clause
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(3) of the Article, appeal to the Supreme Court can the
ground that any question of the aforesaid description has
been wrongly decided and with the leave of’ the Supreme
Court, on any other ground.
Under Article 134(1) of the Constitution an appeal lies to
the Supreme Court from any judgment, final order or sentence
in a criminal proceeding of a High Court if the High Court
(a) has in; appeal reversed any order of acquittal of an
accused person and has sentenced him to death; or (b) has
withdrawn for trial before itself any case from a court
subordinate to it and has sentenced the accused to death; or
(c) certifies that the case is a fit one for appeal to the
Supreme Court. By Article 136(1) the Supreme Court may
notwithstanding anything contained in Chapter IV ("The Union
Judiciary"), grant special leave in its discretion to appeal
from any judgment, decree, determination, sentence or order
in any cause or matter passed or made by any court or
tribunal in India.
Article 132(3) referred to above shows that where the High
Court certifies that the case involves a substantial
question of law as to the interpretation of the Constitution
or the Supreme Court grants special leave to appeal on the
ground that the case involves such a question, "any party in
the case" may appeal to the Supreme Court. It is in-
controvertible that if the State Government is impleaded to
an appear in the High Court as a contending party, it would
be a "party in the case" and therefore if the decision is
adverse to it would be entitled to appeal on the conditions
mentioned in Article 132. This right is of’
420
course limited to cases in which a substantial question of
law as to the interpretation of the Constitution is
involved.
Article 134(1) extracted above shows that if the High Court
reverses an order of acquittal and sentences the accused to
death, he can appeal to the Supreme Court as a matter of
right. A similar right is available to an accused whose
case is withdrawn for trial by the High Court and who on
being convicted is sentenced to death. In a case falling
under Article 134(1) (a), the appeal against acquittal
would .normally be filed in the High Court by the State
Government under section 417(1) of the Code of Criminal
Procedure. It is only in cases instituted upon complaint
that the complainant can ask for special leave to appeal
from the order of acquittal. If the State Government files
in the High Court an appeal against an order of acquittal
passed by the lower court and if in such an appeal the
accused is sentenced to death, it seems to us patent that if
the accused files an appeal in the Supreme Court against the
judgment of the High Court, the State ,Government would be
entitled to defend the appeal as a respondent interested in
the decision of the High Court. In an appeal falling under
Article 134(1) (b) also it is the State Government which
would be interested in and entitled to defend the appeal in
the Supreme Court. The circumstance that Article 134 does
not refer to the right of the ’State Government to defend
such appeals cannot be construed as depriving it of that
right.
If in an appeal against a conviction the High Court acquits
an accused or if in an appeal by the State Government
against an order of acquittal the High Court confirms the
order of acquittal, it is the State Government which, if at
all, would be aggrieved by the order of acquittal and it
would therefore be entitled to challenge the order in a
further .appeal if any such appeal is provided by law. The
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right of appeal is a creature of statute and if the law
provides for no further appeal the matter has to rest where
it stands. But if the Constitution provides for an appeal
against a judgment or order, the party aggrieved or affected
by that judgment or order would be entitled to avail of the
right or facility of appeal, though on the conditions
prescribed by the Constitution.
Under Article 136(1) of the Constitution this Court has a
wide discretion, though sparingly exercised, to grant
special leave to appeal from any judgment, decree,
determination, sentence or order. This remedy can be
availed of by any party which is affected adversely by the
,decision under challenge. If the State Government is a
contesting party to a matter disposed of by the High Court
and if it is aggrieved by the judgment or order of the High
Court, it is entitled under Article 136(1) to ask for
special leave of this Court to appeal from the decision of
the High Court. It is, of course, not entitled to obtain
leave but that is a separate matter because under Article
136(1) no party is entitled to obtain leave as a matter of
right. "The Supreme Court may, in its discretion, grant
special leave to appeal" and one of the relevant
considerations in granting leave is whether the party
seeking
421
leave is aggrieved by the impugned decision, in which case
it would, at any rate, have locus to ask for leave.
The locus standi of State Governments to file appeals in
this Court against judgments or orders rendered in criminal
matters, particularly those commenced otherwise than on
private complaints, has been recognised over the years and
for a valid reason. All crimes raise problems of law and
order and some raise issues of public disorder. The effect
of crime on the ordered growth of society is deleterious and
the State Governments are entrusted with the enforcement and
execution of laws directed against prevention and punishment
of crimes. They have, therefore, a vital stake in criminal
matters which explains why all public prosecutions are
initiated in the name of the Government. The objection of
Mr. Garg that the State Government has no locus standi to
file this appeal must be rejected.
P. H. P. Appeal dismissed.
422