Full Judgment Text
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PETITIONER:
CHANDRA MOHAN TIWARI AND ANR.
Vs.
RESPONDENT:
STATE OF MADHYA PRADESH
DATE OF JUDGMENT22/01/1992
BENCH:
PANDIAN, S.R. (J)
BENCH:
PANDIAN, S.R. (J)
REDDY, K. JAYACHANDRA (J)
CITATION:
1992 AIR 891 1992 SCR (1) 313
1992 SCC (2) 105 JT 1992 (1) 258
1992 SCALE (1)131
CITATOR INFO :
R 1992 SC1879 (31)
ACT:
Code of Criminal Procedure, 1973 : Section 379-Scope
of.
Supreme Court (Enlargement of Criminal Appellate
Jurisdiction) Act, 1970 : Section 2-Scope of.
Constitution of India, 1950 : Article 134-Scope of.
Criminal Trial-Accused-Acquittal by Trial Court-
Reversal of acquittal by High Court and imposition of life
sentence-Scope of right of appeal by the accused-Scope of
interference by Supreme Court in such appeals.
Criminal Trial-Murder-Motive-When motive is equally
balanced the Court should look to surrounding circumstances
to find out the truth.
Criminal Trial-Related witnesses-Reliability of-Murder
inside the house at the dead end of night-It is futile to
expect the prosecution to produce independent outsiders as
witness-Parents of the deceased are probable and natural
witness-Held though parents are interested witnesses yet
their evidence cannot be rejected simply on the ground that
they are interested witnesses-Interested witnesses are not
necessarily false witnesses.
HEADNOTE:
The appellants were alleged to have kidnapped, wrongfully
confined and raped S, the daughter of PWs 5 and 6. They
were prosecuted for offences punishable under section 363,
366 and 376 of the Indian Penal Code. S was examined before
the Magistrate where she stated that because of the threat
given by the appellants and as instructed by them she lodged
a false report at the police station implicating some other
persons, whereas infact she was kidnapped, wrongfully
confined and raped by the appellants. The Magistrate,
discharged the first appellant, and committed the second
appellant alone to take his trial. On a revision preferred
against the order of discharge of the first appellant both
the appellants were
314
put up for trial before the third Additional Sessions Judge,
Bhopal. During the said trial both appellants were on bail.
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The case was fixed for 21.8.1972 on which date the victim S
was to be examined as a prosecution witness. While the
matter stood thus S lodged a report at the Police Station
complaining that the second appellant had forcibly entered
into the backyard of her house, but took to his heels when
she raised a hue and cry.
However, it was alleged that on the night of 20.8.72,
i.e. immediately before the day when the case was fixed and
victim S was to be examined as a prosecution witness, the
first appellant armed with a pistol and the second appellant
with a ‘farsa’ entered into the house of S and the first
appellant fired a shot causing instantaneous death of S. The
appellants were prosecuted for murder. The Sessions Judge
acquitted both the appellants. The State preferred an
appeal before the High Court. The High Court allowed the
appeal, set aside the acquittal order and convicted the
first appellant under Section 302 and the second appellant
under section 302, read with Section 34 IPC and sentenced
each of them to undergo imprisonment for life.
The appellants preferred an appeal to this Court under
section 379 of the Code of Criminal Procedure and Section 2
(a) of the Supreme Court (Enlargement of Criminal Appellate
Jurisdiction) Act, 1970 and it was contended on their behalf
(i) that the High Court erred in reviewing the evidence and
reversing the order of acquittal; (ii) that the prosecution
has failed to prove the motive of the crime; (iii) the
victim’s parents were inimical towards the appellants and
their evidence cannot be relied upon because they were
interested witness.
Dismissing the appeal, this Court,
HELD : 1. The Trial Court was wrong in jettisoning the
entire evidence in a very scanty and unsatisfactory manner
with unsound reasoning. Whilst the Trial Court’s conclusion
was arrived at by abjuring the unimpeachable and reliable
evidence of parents of the deceased on speculative reasons
and unreasonable grounds, the contrary conclusion of the
High Court based on the evolution of the evidence does not
suffer from any illegality or manifest error or perversity
nor is it erroneous. Further, independent analysis of the
evidence by this Court shows that there are absolutely no
substan-
315
tial and compelling reasons to brush aside the testimony of
these two eye-witnesses and to take a contrary finding to
that of the High Court. [331 C-D; F-G]
1.1 The organic synthesis of the events, circumstances
and facts of the case lead only to one conclusion, namely,
that the prosecution has satisfactorily proved the guilt of
the accused beyond any shadow of doubt and consequently the
judgment of the High Court does not call for any
interference. [334 C-D-E}
Tarachand v. State of Maharashtra, AIR 1962 S.C. 130 =
[1962] 2 S.C.R. 775; Kishan and Ors. v. State of
Maharashtra. [1970] 3 S.C.C. 35; Mahebub Beg and Ors. v.
State of Maharashtra, (S.C.) (1966 Maharashtra L.J. 12; Babu
v. State of UP., AIR 1965 S.C. 1467=[1965] 2 S.C.R. 771;
Podda Narayana and Ors. v. State of Andhra Pradesh, AIR 1975
S.C. 1252= [1975] Supp. S.C.R. 84; Ram Kumar Pande v. The
State of Madhya Pradesh, A.I.R. 1975 S.C. 1026=[1975] 3
S.C.C. 815; Rajendra Prasad State of Bihar A I R SC 10 59 =
= [1977]3 SCR 68; Kishore Singh and Anr. v. The State of
Madhya Pradesh, A.I.R. 1977 S.C. 2267 = [1978] 1.S.C.R. 635;
Bhajan Singh and Ors. v. State of Punjab, [1978] 4 S.C.C.
77; Dinanath Singh & Ors. v. State of Bihar, A.I.R. 1980
S.C. 1199 = [1980] 1 S.C.C. 674; Pattipati Venkaiah v. State
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of Andhra Pradesh [1985] 4 S.C.C. 80; Sita Ram and Ors. v.
State of U.P., [1979] 2 S.C.C. 656; Rajput Ruda Meha and
Ors. v. State of Gujarat, [1980] 1 S.C.C. 677; referred to.
Roop Singh and ors. v. State of Punjab, A.I.R. 1973
S.C. 2617 = [1974] 1 S.C.R. 528; Dargahi and ors. v. State
of U.P., A.I.R. 1973 S.C. 2695 = [1974] 3 S.C.C 302; Barati
v. State of U.P., A.I.R. 1974 S.C. 839 = [1974] 3 S.C.R.
570; G.B. Patel v. State of Maharashtra, A.I.R. 1979 S.C.
135 = [1978] 4 S.C.C. 371; Kanwali v. State of U.P. [1971] 3
S.C.C. 58; referred to.
2. There is overwhelming evidence both oral and
documentary in clearly establishing a strong motive for the
appellants to put an end to the life of the deceased. The
several impelling circumstances attending the case namely,
the prior incident of kidnapping and rape, the conduct of
the deceased in giving her statement supporting the case of
the prosecution, the lodging of the complaint by S against
the second appellant and lastly the posting of the case for
recording the evidence of S when taken in conjunction with
the evidence of parents of the victim unevasively and
unerringly show that these two appellants had strong motive
to snap the life thread
316
of the victim so that she could not give evidence on the
next date in the case of kidnaping and rape. [327 C-D-E; 328
A-D-C]
State of Punjab v. Pritam Singh. [1977] 4 S.C.C. 56;
relied on.
3. Interested witnesses are not necessarily false
witnesses though the fact that those witnesses have personal
interest or stake in the matter must put the court on its
guard, that the evidence of such witnesses must be subjected
to close scrutiny and the Court must access the testimony of
each important witness and indicate the reasons for
accepting or rejecting it and that no evidence should be at
once disregarded simply because it came from interested
parties. [330 A-B]
Siya Ram Rai v. State of Bihar, [1973] 3 S.C.C. 241;
Sarwan Singh v. State of Punjab, [1976] 4 S.C.C. 369; Birbal
v. Kedar, A.I.R. 1977 S.C. 1 = [1977] 2 S.C.R. 1; Gopal
Singh v State of U.P. A I R 1979 S.C.1822=[1978] 3 S.C.C.
327; Hari Obulla Reddy & Ors. v. State of Andhra Pradesh,
[1981] 3 S.C.C. 675; Anvaruddin & Ors. v. Shakoor & Ors.,
[1990] 2 Judgments today S.C. 83; relied on.
3.1 The evidence of parents of the deceased cannot be
thrown over-board simply on the ground that their evidence
is of the interested party because when the occurrence had
taken place inside the house, that too at dead of night, it
would be futile to expect of the prosecution to produce
independent outsiders as witnesses. The parents of the
victim are the natural and probable eye-witnesses as the
incident had occurred in the odd hours inside their house.
Being the parents of the victim, they would be the least
disposed to falsely implicate the appellants or substitute
them in place of the real culprit. [330 D; 328 E; 331 E]
3.2 The chronology of events narrated and the factual
conspectus recounted by the parents of the deceased are
unshakable and the intrinsic quality of the evidence of
these two witnesses compel this Court to implicitly rely on
their testimony and to accept the same. In spite of the
fact that these two witnesses have been subjected to
intensive and incisive cross-examination, nothing tangible
has been brought for discarding their testimony. No doubt,
the earlier conduct of the appellants in kidnapping and
forcibly raping their daughter, the victim should have
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inflicted deeper wounds in minds of these two witnesses, but
that cannot in any way destroy the value of their evidence
which is cogent and trustworthy. [330 H; 331 A-B]
317
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 36
of 1979.
From, the judgement and Order dated 17.11.1978 of the
Madhya Pradesh High Court in Criminal Appeal No. 477 of 1973.
A.N. Mulla, Dhruv Mehta, Aman Vachher and S.K. Mehta
for the Appellants.
B.Y. Kulkarni and Uma Nath Singh for Respondents.
The Judgment of the Court was delivered by
S. RATANAVEL PANDIAN, J. The two appellants, namely,
Chandra Mohan Tiwari and Ram Pal Singh Sengar have filed
this criminal appeal challenging the correctness and
legality of the judgment and order dated 17th of November
1978 of the High Court of Madhya Pradesh at Jabalpur
rendered in Criminal Appeal No. 477 of 1973, whereby the
High Court has allowed the appeal preferred by the State by
setting aside the order of acquittal passed by the Trial
Court and convicted the first appellant under Section 302
IPC and the second appellant under Section 302 read with 34
IPC and sentenced each of them to imprisonment for life.
The matrix of the case which has led to the filing of
this appeal briefly stated is as follow:
PW-6 Ahiwaransingh was at the material time, a
compounder in the Veterinary Hospital, Budhni. He was
residing in one of the quarters situated in the compound of
the Veterinary Hospital. On the opposite side of compound
there are Government quarters. One of which was occupied by
appellant Ram Pal Singh (Appellant No. 2), who was serving
as Gram Sevak in the Block Development office. He is
married and distantly related to PW-6. The first appellant
Chandra Mohan Tiwari was wielding high influence in that
locality and was well known to the members of the family of
PW-6. It appears that he contested the election to the
Legislative Assembly from Budhni constituency.
The members of the family of PW-6 included PW-5, the
Deceased Saroj aged about 16 years, who are PW-6’s wife and
eldest daughter respectively. PW-6 had settled the marriage
of his daughter Saroj at Dahiyapur, Etawah District (U.P.).
On 24.5.1970 he along with his deceased daughter, Saroj,
left Budhni for Bhopal enroute to Dahiyapur. At Bhopal he
stayed with his relative by name Arjun Singh. On 25.5.1970
at
318
about 11.00 A.M. PW-6 had gone to the market leaving Saroj
alone in the house. According to the prosecution, the
second Appellant came to the house of PW-6 and told Saroj
that her father wanted her presence for selection of
clothes. Saroj believing the words of second appellant and
without entertaining any doubt on the representation of the
second appellant accompanied him in a jeep which was driven
by the first appellant. Then she was taken to a house where
she was wrongfully confined for about two and a half months.
During this period both the appellants are stated to have
forcibly committed sexual intercourse with Saroj. PW-6 lost
his nerve on the sudden disappearance of his daughter, but
he instead of lodging a report with the police, which
evidently he thought would adversely affect the future life
of his daughter and her impending marriage and also bring
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the family in disrepute, unsuccessfully made a frantic and
intensive search for his daughter. Then he lodged a report
Ex. P/10 on 3.8.1970 at the Police Station of Mangalwara,
alleging that he had reason to believe that Saroj might have
been kidnapped by both the appellants. The police did not
take any prompt action on the report. By that time, the
appellants, on coming to know of the lodging of the report,
devised a plan fore-stall any action being taken against
them. The second appellant took Saroj in a taxi to
Hoshangabad and left her near the police station with an
instruction to lodge a false complaint at the police station
that she was kidnapped from Bhopal on 25.5.1970 by one
Ramnath and Indrasen and was wrongfully confined by them.
She was also threatened that the appellants would be keeping
a watch over her and that in case she divulged the truth,
serious consequences would follow. As instructed by the
second appellant, Saroj lodged a complaint Ex. D/15 on
9.8.1970 at Hoshangabad Police Station. However, when she
was taken to the Police Station, Mangalwara in connection
with the report, lodged by her father (PW-6) she told the
entire truth to the police and her parents. Even then no
progress was made in the investigation on the report of PW-6
at Mangalwara. So PW-6 made a fervent plea to the then
Chief Minister of the State and requested him to take action
in the matter. It was only thereafter, on the instructions
of the higher authorities wheels of investigation started
moving on. The police after completing the investigation
filed the charge sheet before the Additional District
Magistrate (Judicial) Bhopal against both these two
appellants for offences punishable under Section 363, 366
and 376 IPC.
The victim Saroj, when examined before the Magistrate
on 12.7.1971 stated in her statement Ex. P/25 that she was
kidnapped by both the appellants and wrongfully confined and
also subjected to sexual inter course and that she lodged
the false report Ex. D/15 at the Hoshangabad police station
under duress and as instructed by the second appellant
319
herein. The Magistrate discharged the first appellant, and
committed the second appellant alone to take his trial. On
a revision preferred against the order of discharge of the
first appellant both the appellants were put up for trial
before the third Additional Sessions Judge, Bhopal in
Sessions Case Nos. 66 and 95 of 1972 for offences punishable
under sections 363, 366 and 376 IPC. During the said trial
both appellants were on bail. The case was fixed for
recording evidence from 21.8.1972 on which date the victim
Saroj was to be examined as a prosecution witness. While
the matter stood thus, according to the prosecution, on
20.6.72 Saroj lodged a report Ex. P/7 at Budhni Police
Station complaining that the second appellant had forcibly
entered into the backyard of her house, but took to his
heels when she raised a hue and cry.
In the above background, the present occurrence had
occurred on the intervening night of 20/21st August 1972.
The prosecution case is that on that fateful night the first
appellant armed with a pistol and the second appellant with
a ‘farsa’ entered into the house of PW-6 through the main
door which was kept ajar by PW-5 who went out of the house
of answer call of nature inside the compound and that the
first appellant fired a shot which hit on the chest of the
victim Saroj, who was then in her bed and caused her
instantaneous death. Both PWs 5 and 6 identified the
appellants as the assailants. PW-6 tried to chase the
appellants, but he stumbled near the gate of the compound
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and could not apprehend them. The distress cries of PWs 5
and 6 attracted the neighbours to the scene. PW-6 narrated
the incident to PWs 1 and 2 by mentioning the name of the
appellants as the assailants and requested PW-1 to lodge a
report at the police station. Accordingly, PW-1 lodged the
First Information Report Ex. P/1 at 1.30 A.M. PW-18, the
investigating officer took up the investigation during the
course of which he inspected the scene of the occurrence,
held in quest and then sent dead body to the hospital for
necropsy. On the next day i.e. on 21.8.72 both the
appellants were arrested when they had come to attend the
hearing of the case of kidnaping and rape. After completing
the investigation both the appellants were put up for trial.
The Sessions Judge of Indore found both appellants not
guilty of the offence of murder and consequently acquitted
them. Feeling aggrieved by the judgment of the Trial Court,
the State preferred the appeal before the High Court, which
for the detailed discussion made in its judgment held that
the prosecution has satisfactorily established the guilt of
both appellants beyond all reasonable doubts, allowed the
appeal by setting aside the judgment of the Trial Court
acquitting the appellants and convicted the first appellant
under section 302 and the second appellant under Section 302
read with Section 34 IPC and sentenced each of them to
undergo imprisonment for life. Hence the present appeal is
preferred by the appellants on being aggrieved by the
impugned judgment of the High Court.
320
Mr. A.N. Mulla, the learned Sr. Counsel appearing on
behalf of the appellants after taking us in detail through
the judgment of the courts below, evidence of the
prosecution as well as the defence witnesses and in
particular Ex. D/15, the First Information Report dated
9.8.70 relating to the offence of kidnaping and rape
registered on the basis of the complaint given by the
deceased Saroj at Hoshangabad Police Station, vehemently
submitted that the prosecution has miserably failed to prove
the motive for the occurrence. The learned counsel
perfervidly advanced his argument inter-alia contending that
the High Court has erred in reversing the judgment of the
Trial Court based on well reasoned and considered findings
of fact, ignoring the settled principles of law as laid down
by this Court as regards the scope of interference of the
High Court in an appeal preferred against an order of
acquittal, that the evidence of PWs 5 and 6 who had
developed rancur and were inimically disposed towards the
appellants ought not to have been accepted and implicitly
relied upon as their testimony is highly tainted with
interestedness, that the contents of Ex. D-15 whereby the
deceased had implicated Ram Nath Singh and one Indra Sen as
assailants of kidnaping belie the version of PWs 5 and 6 and
negative the prosecution story as far as the motive is
concerned, that the evidence of PWs 5 and 6 suffers from the
vice of discrepancies and incongruities, that the non-
recovery of any ‘lota’ (a small vessel) from the place where
PW-5 was easing as well as the non-marking of the place
where the said vessel was kept in the site plan falsify the
evidence of PW-5 that she opened the door and went near the
compound wall to answer call of nature , that the recovery
of two bullets from the scene is an indication of the fact
that there should have been two shots, that there was delay
in laying the complaint, that the unchallenged claim of the
appellants that they were in Bhopal clearly shows that the
appellants would not have come to Budhni from Bhopal that
too at the odd hours with an anticipation that the door of
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the scene house would be kept open. The learned counsel
further submits that had the appellants come to the scene
house to assassinate the victim Saroj, they would not have
exposed themselves without covering their faces so that
their identity could not be established and that the life of
the girl might have been put to an end by inmates of the
said house, particularly her father on account of some
conspiracy since the victim girl wanted to have the case of
kidnaping and rape not to be proceeded with.
Before adverting to the contentions, urged by the
learned counsel, we would like to briefly state the legal
position regarding the right of appeal of an accused person
sentenced to imprisonment for life by the High Court after
reversing the order of acquittal and the scope of
interference in such appeal by this court. The present
appeal is under Section 379
321
of the Code of Criminal Procedure of 1973 (hereinafter
referred to as the ‘code’) and Section 2(a) of the Supreme
Court (Enlargement of Criminal Appellate Jurisdiction) Act
of 1970 (hereinafter referred to as ‘the Act of 1970’)
Section 379 of the Code contemplates that where the High
Court has, on appeal, reversed an order or acquittal of an
accused person and convicted him and sentenced him to death
or to imprisonment for life or to imprisonment for the term
of ten years of more, that person may appeal to the Supreme
Court. This section in newly introduced in the Code of 1973
(Act 2 of 1974) on the recommendation of the Law Commission
of India in its 41st Report. Article 134 (1) (a) of the
Constitution envisages that an appeal shall lie to the
Supreme Court from any judgment, final order or sentence in
a criminal proceeding of the High Court in the territory of
India if the High Court has on appeal reversed an order of
acquittal of an accused person and sentenced him to death.
To say in other words under Article 134 (1) (a) the absolute
right of appeal to the Supreme Court is restricted only to
cases where the High Court reverses an order of acquittal
passed by the Trial Court and awards the sentence of death.
The right of appeal is also extended under Article 134 (1)
(b) to cases where the High Court has withdrawn for trial
before itself any case from any court subordinate to its
authority and has in such trial convicted the accused person
and sentenced him to death, which type of cases are rare and
infrequent occurrence. Under clause (c) of the above said
Article an appeal lies to the Supreme Court on a
certificate under Article 134 A by the High Court certifying
that the case is a fit one for appeal to the Supreme Court
but, of course, subject to the proviso to Article 134 (1).
In this connection, it is pertinent to note that the
Government of Madras (as then called) expressed its view
that the limited right of appeal now conferred in case of
the persons sentenced to death by clauses (a) and (b) of
Article 134 (1) should be enlarged and that in all cases in
which the accused persons are sentenced to death, there
should be a right of appeal to the Supreme Court without the
need of a certificate from the High Court. This view was
rejected by the Law Commission of India in its 14th Report
stating that even in cases not covered by clauses (a) and
(b) of Article 134 (1) the High Court has the power to
certify the case as a fit one for appeal to the Supreme
Court under Clause (c) and further there is also the
safeguard provided by the wide powers of the Supreme Court
under Article 136 which confers a discretionary power on the
Court to interfere by granting special leave to appeal in
suitable cases including cases where the High court has
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refused to grant Certificate for appeal under Article 134
(A). See the decision of the constitution Bench in Tarachand
v. State of Maharashtra AIR 1962 S.C. 130 = [1962] 2 SCR 775
and the later decision in Krishan and others v. State of
Maharashtra.
322
[1970] SCC 35. To avoid proliferation we are not citing
all the decisions on this aspect.
The reason, given by the Law Commission in its 14th
Reports (Volume I at page 52) for rejecting the view of the
Government of Madras is as follows:
"We are not inclined to accept this view. For over
a century such cases have been dealt with by the
High Courts subject to the superintendence of the
Privy Council under its special leave jurisdiction
and there is no reason why the High Courts should
not continue to deal with such cases in the same
manner."
In 1968 a Private Member’s Bill was introduced in
Parliament which proposed that the limited jurisdiction of
the Supreme Court contemplated under Article 134 (1) (a) and
(b) should be enlarged to cover cases where the High Court
has, after reversing an order of acquittal, sentenced a
person to imprisonment for life or for 10 years or more. Be
that as it may in its 41 st Report, the Law Commission
expressed its view that the limitation of the right of
appeal under Article 134 (1) (a) and (b) applies only to
cases of death but not to cases of imprisonment for life
awarded by the High Court or appeal against acquittal and
that limitation "is too stringent and not easily justifiable
and that the convicted persons ought to have a right of
appeal in such cases". The Law Commission, at the same
time, was not in favour of extending this right of appeal in
which the High Court has on appeal against acquittal
sentenced a person to imprisonment for a term of 10 years or
more, and proposed a new Section 417 -B restricting such
appeal to the Supreme Court only in cases of sentence of
imprisonment for life. While so, the Joint Select Committee
by its report dated 4th December, 1972 drafted clause 379
(original clause 389) of the Code of Criminal Procedure Bill
1970 (page xxvi) which reads thus:
"The amendment has been made to bring the provision
of the clause in line with the provisions of the
Supreme Court (Enlargement of Criminal Appellate
Jurisdiction) Act, 1970.
Vide the 14th Report of the Law Commission (at page 52)
and the 41st Report of the Law Commission (paragraphs 31.65
to 31.69 at pages 281-283).
Section 2 of the Act of 1970 reads thus :
2. Enlarged appellate jurisdiction of Supreme Court
in regard to criminal matters. Without prejudice
to the powers conferred on the Supreme Court by
clause (1) of Art. 134 of the Constitution, an
appeal shall lie to the Supreme Court from any
judgment, final order of sentence in a criminal
proceeding
323
of a High Court in the territory of India if the
High Court-
(a) has an appeal reversed an order of acquittal of
an accused person and sentenced him to imprisonment
for life or to imprisonment for a period of not
less than ten years ;
(b) has withdrawn for trial before itself any case
from any court subordinate to its authority and has
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in such trial convicted the accused person and
sentenced him to imprisonment for life or to
imprisonment for a period of not less than ten
years."
The right of appeal under the above Section to the
Supreme Court is an addition to those provided under Article
134 (1) of the Constitution. In cases which do not come
under clauses (a) and (b) of Article 134(1) or under the Act
of 1970 or Section 379 of the Code an appeal does not lie as
of right to the Supreme Court against any order of
conviction by the High Court. In such cases, appeal will
lie only if a certificate is granted by the High Court under
sub-clause (c) of Article 134 (1) certifying that the case
is a fit one for appeal to the Supreme Court or by way of
special leave under Article 136 when the certificate is
refused by the High Court. See Mahebub Beg and others v.
State of Maharashtra, (S.C.) CR. A 120/64 dated 19.3.1965
reported in 1966 Maharashtra Law Journal 12 and Babu v.
State of U.P. AIR, 1965 S.C. 1467 = [1965] 2 SCR 771.
The resultant position of law from the conjoined
reading of the above provisions of the Constitution, the Act
of 1970 and the Code of Criminal Procedure is as follows:
(1) Under sub-clause (a) of Article 134(1) an appeal
lies as of right to the Supreme Court in a case where the
High Court has reversed an order of acquittal of an accused
person and sentenced him to death.
(2) Under sub-clause (b) of Article 134 (1) an appeal
lies as of right to the Supreme Court in a case where the
High Court has withdrawn the case for trial before itself
from any court subordinate to its authority and sentenced
him to death.
(3) Under Section 2 (a) of the Act of 1970 an appeal
lies as of right to the Supreme Court in a case where the
High Court has reversed an order of acquittal of an accused
person and sentenced him to imprisonment for life or
imprisonment for a period of not less then 10 years
324
(4) Under Section 2 (b) of the Act of 1970 an appeal
lies as of right to the Supreme Court in a case where the
High Court has withdrawn for trial before itself any case
from any court subordinate to its authority and has in such
trial convicted the accused person and sentenced him to
imprisonment for life or imprisonment for a period of not
less than 10 years.
(5) Under Section 379 of the Code, which is now newly
introduced in line with the Constitutional provisions of
Article 134 (1) (a) and (b) and with Section 2 of the Act of
1970, an appeal lies as of right to the Supreme Court in a
case where the High Court has on appeal reversed an order of
acquittal of an accused person and convicted and sentenced
him either to death or to imprisonment for life or
imprisonment for a term of 10 years or more.
(6) In cases not covered by Article 134 (1) (a) and (b)
or Section 2 (a) and (b) of the Act of 1970 or by Section
379 of the Code of Criminal Procedure an appeal will lie
only either on a certificate granted by the High Court under
Article 134 (1) (c) or by grant of special leave to appeal
by the Supreme Court under Article 136.
The right of appeal given under Section 379 of the Code
is in line with Article 134 (1) (a) and (b) and Section 2
(a) and (b) of the Act of 1970.
This Court in Podda Narayana and others v. State of
Andhra Pradesh AIR 1975 S.C. 1252 = [1975] (Supp) SCR 8 had
an occasion to examine the scope of Section 2 of the Act of
1970 and held thus :
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"As the High Court had awarded the sentence of life
imprisonment after reversing the order of acquittal
passed by the Additional Sessions Judge the appeal
to the Supreme Court lies even on facts and as a
matter of right under Section 2 of the Supreme
Court (Enlargement of Criminal Appellate
Jurisdiction) Act, 1970".
M.H. Beg, J. as he then was, speaking for the Bench in
Ram Kumar Pande v. The State of Madhya Pradesh, AIR 1975
S.C. 1026 = [1975] 3 SCC 815 observed as follow.
"Strictly speaking, no certificate of the High
Court is required for such an appeal where an
acquittal has been converted into a conviction
under S. 302/34 I.P.C. and a sentence of life
imprisonment imposed upon an accused person. The
appeal in, such a case, lies as a matter of right
to this Court under the Act of 1970."
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This Court in Rajendra Prasad v. State of Bihar, AIR
1977 S.C. 1059 = [1977] 3 SCR 68 while disposing of an
appeal preferred under Section 2(a) of the Act of 1970 laid
down the following dictum:
"Thus when two courts, have come to a different
conclusion on the same evidence, we had ourselves
to go through the entire evidence carefully in
order to see whether the appreciation of the
evidence by the Sessions Judge was so unreasonable
and unrealistic as to entitle the High Court to
interfere with the same."
In Kishore Singh and another v. The State of Madhya
Pradesh, AIR 1977 S.C. 2267 = [1978] 1 SCR 635 the following
view similar to the one taken in Ram Kumar Pande’s case was
reaffirmed and it read thus :
"The High Court is not right in holding that a
certificate is necessary under Article 134 (1) (c)
of the Constitution if the appellants have a right
of appeal under Section 2 of the Act."
In Ram Kumar Pande’s case, the jurisdiction of the
Supreme Court to interfere in a judgment of the High Court
reversing the acquittal of the Trial Court and convicting
the accused person and sentencing him to life imprisonment,
in respect of which an appeal to the Supreme Court lies as
of right was examined and the following maxim has been laid
down.
"The well settled rule of practice in a case of an
appeal against an acquittal is that the appellate
Court should not interfere with the acquittal
merely because it can take one of the two
reasonably possible views which favours conviction.
But, if the view of the Trial Court is not
reasonable sustainable, on the evidence on record,
the Appellate Court will interfere with an
acquittal. If the Appellate Court sets aside an
acquittal and convicts, we have to be satisfied,
after examining the prosecution and defence case
and the crucial points emerging for decisions from
the facts of the case, that the view taken by the
Trial Court, on evidence on record, is at least as
acceptable as the one taken by the High Court,
before we could interfere with the High Court’s
judgment."
Kailasam, J. speaking for the Bench in Bhajan Singh and
others v. State of Punjab, [1978] 4 SCC 77 dealing with the
scope of the appeal before the Supreme Court filed under
Section 2 (a) of the Act of 1970 observed thus :
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"as a court of appeal this Court has got to go into
all the
326
questions of fact and law and decide the case on
its merit. After a right of appeal has been
provided under the said section, the question,
whether the High Court interfered on sufficient
ground or not, will not be material, as this Court
has to decide the case on its own merits. The
decisions, regarding the scope of appeal against an
acquittal, the powers of the High Court to
interfere in an appeal against acquittal by the
State, which may be relevant when the Supreme Court
is acting under Article 136, are not material in
deciding an appeal by a person, whose acquittal has
been set aside by the High Court, and who is
entitled to prefer an appeal to this Court."
In Dinanath Singh & others v. State of Bihar, AIR 1980
S.C. 1199 = [1980] 1 SCC 674, an appeal under Section 2 (a)
of the Act of 1970 was directed against the judgement of the
Patna High Court convicting the appellants therein under
Section 302 read with 34 IPC and sentencing them to
imprisonment for life by reversing the order of acquittal
of the Trial Court. While disposing the appeal Fazal Ali.
J. speaking for the Bench pointed out thus:
"It is now well settled by the long course of
decisions of this Court that where the view taken
by the trial court in acquitting the accused is
reasonably possible, even if the High Court were to
take a different view on the evidence, that is no
ground for reversing the order of acquittal."
This court while disposing an appeal filed under
Section 379 of the Code in Pattipati Venkaiah v. State of
Andhra Pradesh, [1985] 4 SCC 80 affirmed the order of
conviction passed by the High Court on the ground that the
judgment of the Trial court acquitting the accused was
extremely perverse and no other reasonable view was possible
than the guilt of the accused.
Reference also may be had to Sita Ram and Others v.
State of U.P. [1979] 2 SCC 656 and Rajput Ruda Meha and
Others v. State of Gujarat, [1980] SCC 677.
This Court in a catena of decisions have dealt with
the power of the High Court to review evidence and reverse
order of acquittal and laid down the guidelines in
exercising that power. Though it is not necessary for us in
the present case to deal with all those decisions, the
following may be referred to :
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Roop Singh and others v. State of Punjab. AIR 1973
S.C. 2617 = [1974] 1 SCR 528; Dargahi and others v. State of
U.P., AIR 1973 S.C. 2695 = [1974] 3 SCC 302; Barati v. State
of U.P., AIR 1974 S.C.839 = [1974] 3 SCR 570; G.B. Patel v.
State of Maharashtra, AIR 1979 S.C. 135 = 1978 (4) SCC 371;
and Kanwali v. State of U.P. [1971] 3 SCC 58.
Having regard to the above principle of law, we shall
now carefully scrutinize the entire evidence adduced by the
prosecution and examine the contentions advanced by Mr.
Mulla and decide the case on its merit, independent of the
views expressed by the High Court in its impugned judgment :
Motive for the murder:
There is overwhelming evidence both oral and
documentary in clearly establishing a strong motive for the
appellants/accused to put an end to the life of the deceased
Saroj, who when examined before the Magistrate on 12.7.1991
had deposed under Ex. P/25 that she was kidnapped by both
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the appellants, wrongfully confined and subjected to sexual
intercourse, though she initially lodged a report under Ex.
D-15 on 9.8.70 at the Hoshangabad police station against
some other persons exculpating these two appellants.
Earlier to her examination before the Magistrate the
deceased lodged a report Ex. P-7 on 20.6.1972 at Budhni
police station complaining that the second appellant had
forcibly entered into the backyard of her house and on her
raising a cry he took to his heels. The trial of the case
against both the appellants before the Additional Sessions
Judge, Bhopal in Sessions Case Nos. 66 and 95 of 1972 under
Sections 363, 366 and 376 IPC was fixed for recording the
evidence of the victim in that case, namely, the deceased
herein from 21.8.1972. Both the appellants were on bail in
the case of kidnaping and rape during the period of the
occurrence in question which occurred on the intervening
night of 20/21st August 1972. The learned counsel for the
appellants has submitted that PWs 5 and 6 had sufficient
motive to implicate both the appellants in this heinous
crime of murder as these two appellants according to both
PWs had spoiled the future career of their daughter,
deceased Saroj by kidnaping and committing rape on her even
if the identity of the real assailant/assailants was or were
not known and further there was every possibility of PW-6
falsely implicating these two appellants on strong
suspicion. As stated by Fazal Ali, J. in State of Punjab v.
Pritam Singh, [1977] 4 SCC 56 "when the motive was equally
balanced, the Court had to look to surrounding circumstances
in order to find out the truth."
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This is not a case solely based on circumstantial
evidence, but on the other hand there are two eye-witnesses
to the occurrence, namely, PWs 5 and 6. The several
impelling circumstances attending the case namely, the prior
incident of kidnaping and rape, the conduct of the deceased
Saroj in giving her statement under Ex. P. 25 supporting the
case of the prosecution registered on the complaint given by
PW-1 at the instance of PW-6, the lodging of the complaint
under Ex. P-7 by Saroj on 20.6.72 against the second
appellant and lastly the posting of the case for recording
the evidence of Saroj on 21.8.72-when taken in conjuction
with the evidence of PWs 5 and 6, unevasively and unerringly
show that these two appellants had strong motive to snap the
life thread of the victim so that she could not give
evidence on the next day in the case of kidnapping and rape.
The contents of Ex. D-15 cannot be said to have
whittled down the veracity of the prosecution case as
regards the motive for the occurrence. On the other hand,
the subsequent statement made by the deceased under, the Ex.
P/25 explaining under what circumstances she was forced to
give Ex. D-15 would also serve as a corroborating piece of
evidence in establishing the motive for the occurrence.
Ocular Testimony :
As per the prosecution, due to the above motive the
appellants have resorted in perpetrating this dastardly and
heinous crime, PWs 5 and 6 though the parents of the victim,
are the natural and probable eye witnesses as the incident
had occurred in the odd hours inside their house wherein
these two witnesses and their 4 daughters including the
deceased Saroj were the inmates. According to these two
witnesses by about 12 or 12.30 mid-night PW-5 went out of
the house by opening the main door to answer call of nature
within the compound. Besides moon-light, there was electric
light within the compound. Added to that there was also
electric light burning in the residential quarter of Doctor
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Sahib shedding light inside the compound of the scene house.
PW-5 sighting the two appellants yelled out. She found the
appellant Chandra Mohan Tiwari having a small gun and the
second appellant Rampal Singh being armed with a farsa. On
hearing the cry of PW-5, Saroj woke up. PW-6 who had
earlier been awakened by his wife (PW-5) saw both the
appellants entering into his house with their respective
weapons. The deceased Saroj on seeing the two appellants
hardly uttered ‘Babaji’. Suddenly the first appellants
fired a shot which hit Saroj. On receipt of the injury
Saroj fell down on her cot. Thereafter both the appellants
fled away. PW-5 witnessed both the appellants entering into
the room and heard the sound of a gun shot and the
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appellants thereafter running out of the house. While PW-5
yelled out, PW-6 ran after the appellants up to the compound
shouting that the appellants had fired a gun shot at Saroj.
On coming out of the compound, PW-6 fell down. PWs 1, 2 and
others who rushed to the scene on hearing the shrieks and
shouts of PWs 5 and 6 lifted PW-6 and brought him inside the
house. PWs 1, 2 and others asked PW-6 as to what had
happened. PW-6 told them that the first appellant had fired
a shot at his daughter Saroj and thereafter both the
appellants had fled away from the scene. The victim Saroj
by that time was struggling for breathing and gasping. PW-1
has testified to the fact that he arrived at the scene on
hearing the shouting of PW-6 "killed, killed’ and found PW-6
lying down outside the main gate of his compound, that PW-1
and others lifted PW-6 and brought him inside the house,
that on being asked PW-6 informed PW-1 and others that
Sengar and "Tiwari (referring to both appellants) had shot
at his daughter and that PW-6 requested him to lay a
complaint at Budhni Police Station.
The Trial Court for the reasons given in its judgment
observed that the evidence of PW-5 as regards to the
identity of the appellants is "totally unreliable" and that
of PW-6 appears to be "absurd and fantastic" and finally
concluded thus:
"..........I find the two accused persons had no
motive to perpetrate the crime in question, that
one Gungasingh and possibly the father of the girl
Ahivaransingh might have had stronger motive for
perpetrating the murder, that it was impossible
for the accused persons to have been present at
Budhni at 12.30 that night and that it is most
likely that they have been falsely implicated in
the murder by the political rivals of the accused
Chandra Mohan Tiwari and with the motive of
preventing the accused Ram Pal Singh over-getting
married to Saroj."
The entire prosecution as indicated ibid mainly rests
on the evidence of PWs 5 and 6 who are the unfortunate
parents of the victim and who speak about the motive of the
occurrence and give a full detailed account of the entire
incident. In addition to the ocular testimony of PWs 5 and
6 the prosecution also relies upon the evidence of PWs 1 and
2, who came to the scene spot immediately after the
occurrence and learnt from PWs 5 and 6 that the appellants
were the perpetrators of the crime.
No doubt, it is true that the evidence of PWs 5 and 6
is that of the interested party in that both of them are the
parents of the victim and that they had animus towards the
appellants. As dexterously emphasised by the
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Supreme Court on many occasions that interested witnesses
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are not necessarily false witnesses though the fact that
those witnesses have personal interest of stake in the
matter must put the Court on its guard, that the evidence of
such witnesses must be subjected to close scrutiny and the
Court must assess the testimony of each important witness
and indicate the reasons for accepting or rejecting it and
that no evidence should be at once disregarded simply
because it came from interested parties. Vide Siya Ram Rai
v. State of Bihar, [1973] 3 SCC 241; Sarwan Singh v. State
of Punjab, [1976] 4 SCC 369; Birbal v. Kedar, AIR 1977 S.C.1
= [1977] 2 SCR 1; Gopal Singh v. State of U.P. AIR 1979
S.C.1822 = [1978] 3 SCC 327 ; Hari Obulla Reddy & Others v.
State of Andhra Pradesh, [1981]3 SCC 675; and Anvaruddin &
Ors. v. Shakoor & Ors. [1990]2 Judgements Today S.C. 83.
After carefully scanning the evidence of PWs 5 and 6,
we unreservedly come to the conclusion that their evidence
cannot be thrown overboard simply on the ground that their
evidence is of the interested party because when the
occurrence had taken place inside the house, that too at
dead of night, it would be futile to expect of the
prosecution to produce independent outsiders as witnesses.
It was contended by Mr. Mulla that PWs 5 and 6 could
not have identified the assailants since according to PW-6
both assailants had covered their faces so that faces behind
the mask could never be known to others and remain mystery
for ever. But a careful reading of the evidence of PW-6 in
our opinion does not support the conclusion sought to be
arrived at by the learned defence counsel. What PW-6 had
admitted in the cross-examination is that both the
appellants had tied a towel on their heads, but their
identity was visible.
It transpired from the evidence of PWs 1, 2 and 6 that
PWs 1 and 2 who immediately came to the scene of the
occurrence were informed by PW-6 that the assailants were
the two appellants. The spontaneous declaration to Pws 1
and 2 by PW-6 without premeditation or any deliberation or
artifice by naming the appellants as assailants can be
admitted as resgestae and acted upon. It is significant to
note in this connection that PW-1 who laid the First
Information Report Ex-P-1 within an hour from the time of
the occurrence has mentioned the names of these two
appellants as having been given by PW-6 at the scene
immediately after the occurrence. The FIR has been lodged
without any loss of time though it has been hesitatingly
stated that there was a delay. The chronology of events
narrated and the factual conspectus recounted by PWs 5 and 6
are unshakable and the intrinsic quality of the evidence of
these two witnesses compel
331
this Court to implicitly rely on their testimony and to
accept the same. In spite of the fact that these two PWs
have been subjected to intensive and incisive cross-
examination, nothing tangible has been brought for
discarding their testimony. No doubt, the earlier conduct
of the appellants in kidnaping and forcibly raping their
daughter, the victim should have inflicted deeper wounds in
the minds of these two witnesses, but that cannot in any way
destroy the value of their evidence which is cogent and
trustworthy.
PWs 3 and 4 who were examined by the prosecution to
speak about the movements of the appellants near the scene
at or about the time of the occurrence have resiled from
their earlier statements and have not supported the
prosecution case. The evidence of Pws 5 and 6 which is
corroborated by various other circumstances would in our
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opinion suffice of record a conviction against the
appellants. The Trial Court appears to have gone wrong in
jettisoning the entire evidence in a very scanty and
unsatisfactory manner with unsound reasoning. The non-
recovery of ‘lota’ (a small vessel for taking water) and the
non-marking of the place where the said vessel was kept in
the site plan are too tenuous and they do not in any way
belittle the veracity of the prosecution case. The
recovery of the pellets below the dead body and the cork,
usually fixed on cartridges from the chest of the girl under
the Memo Ex. P-4 as spoken by PWs 1 and 18 amply corroborate
the evidence of PW-6 and support the prosecution case that
the girl was shot dead in close range while she was on her
bed.
Being the parents of the victim, they would be the
least disposed to falsely implicate the appellants or
substitute them in place of the real culprits. In our
considered opinion, whilst the conclusion arrived at by the
Trial Court abjuring the unimpeachable and reliable evidence
of PWs 5 and 6 on speculative reasons and unreasonable
grounds, the contrary conclusion of the High Court based on
the evolution of the evidence does not suffer from any
illegality or manifest error on perversity nor is it
erroneous. Further, on our independent analysis of the
evidence we see absolutely no substantial and compelling
reasons to brush aside the testimony of these two eye-
witnesses and to take a contrary finding to that of the High
Court.
Based on the evidence of DW-1, an advocate at Bhopal,
who defended the appellants herein in the kidnaping case and
who had deposed that on the night of 20.8.72 the first
appellant was with him from 9/9.30 P.M. to 12 mid-night and
who had filed Ex. P30, and application before the court
stating that the first appellant was with him, an argument
was advanced that the appellants could not have gone to the
scene village
332
Budhni from Bhopal, when the distance between the two places
is about 40 miles and committed the offence of murder. In
support of the evidence of DW-1 reliance has been placed on
the testimony of DWs 2 to 4 of whom DW 3 was the Proprietor
of Chetna Lodge, who had testified to the effect that the
first appellant was in his lodge from 18th to 21st August as
borne out from the entry in Ex.D-11. A similar contention
of alibi was also raised before the High Court on the basis
of the evidence of the defence witnesses and the High Court
after discussing and deeply examining the testimony of the
defence witnesses made the following observations:
1. "It is with regret that we have to say that the
testimony of this witness (PW 1) does not inspire
any confidence."
2. "It is surprising that the learned trial Judge
should have placed reliance on the testimony of DW-
2 Ramakant and D.W.7 Durgaprasad and come to the
conclusion that accused Rampalsingh could not have
been at the scene of occurrence as he was at
Bhopal, forty miles away from the scene of
occurrence, at the relevant time."
Further the High Court was correctly rejected the
finding of the Trial Court as an unreasonable one holding:
".......it is most likely that they have been
falsely implicated in this murder by the political
rivals of the accused Chandramohan Tiwari and with
the motive of preventing the accused Rampalsingh
ever getting married to Saroj."
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We also after going through the evidence of the defence
witnesses are unable to accept the plea of alibi and are in
total agreement with the reasons given by the High Court for
rejecting not the plea of alibi but also the defence that
these appellants were implicated on account of political
rivalry.
Medical Evidence:
PW-17 who conducted autopsy on the dead body of the
deceased found a lacerated wound on the chest just left the
mid-line at the level of nipple over the third, fourth and
fifth inter-costal space. The wound was slightly oval
shaped measuring 1-1/2" x 2" deep and opening into thoraic
cavity. The surrounding skin was ecchymost, but no
tattooing of gun powder was noticed. The wound as described
by the Doctor is a slit like small lacerated wound on the
medial end of clavicle. On internal examination PW-17 he
found comminuted fracture of sternum and second,
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third ribs of left side chest. There was a punctured wound
on the medial border of left lung near its appex. He found
one rounded pellet (which has been recorded as bullet, but
has been clarified in the further chief examination as
pellet which receives support from the evidence of PW-19,
the ballistic expert) in the left cavity of the chest,
embedded in the posterior wall of chest at scapular region
at the level of second and third ribs. The Medical Officer
is of the opinion that the death was due to severe fatal
injuries to vital organs like left lung and heart resulting
in profuse bleeding and shock. PW-19 after examining the
two pellets and two wads marked as Ex.P1 and P-2 and W1 and
W2 respectively gave his opinion that the holes, found on
the saree, chader (bed-sheet) and the blouse were gun shot
holes and there was presence of blackening surrounding the
holes on the chader and that the distance of firing should
have been within one yard.
The evidence of the Medical Officer (PW-17) and of the
Ballistic expert (PW-19) amply corroborates the testimony of
PWs 5 and 6 that the assailants whomsoever they had been
should have entered into the room and shot at the victim
standing within a close range.
Mr. Mulla advanced an argument that the recovery of the
two pellets and two wads from the scene place is an
indicative of the fact that there would have been two shots,
and that the presence of only one injury on the body of the
deceased as per the evidence of PW-17 falsifies the present
prosecution case that the victim was shot at only once.
The presence of the pellets and two wads, of course,
indicate that there ought to have been two shots, but it
does not necessarily follow that both the shots, should have
hit the victim, probably one of the shots must have missed
target. From the mere absence of two injuries on the body
of the deceased, no conclusion would be arrived at that the
entire prosecution case is liable to be rejected. The
further submission of the learned counsel that the
appellants should not have come at the odd hours
anticipating that the main door of the house would have been
kept open does not appeal to us. Probably, the appellants
who came there with the intention of putting an end to the
life of the victim by any other design should have taken
this opportunity to enter into the house and shot at the
deceased.
Lastly a feeble argument was put forth by the defence
stating that the father of the deceased and other inmates of
the house on being aggrieved at the conduct of the victim
should have put an end to the life of the girl by conspiring
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together. This submission has to be mentioned for
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simply rejecting the same because had the father and other
inmates of the house had already conspired to murder the
girl, they would not have waited for such a long time and
ultimately killed her by shooting at her chest. No father,
however grave be the provocation at the hands of his
daughter would resort, in the normal course to kill his
daughter or participate in any conspiracy to murder her.
Moreover, there is no circumstance in the present case even
feebly or remotely indicating that the inmates of the house
were responsible for the cause of the death of the deceased.
In spite of our best efforts and great deal of
pondering over the matter, we find absolutely no reason,
much less compelling reason to disagree with the conclusion
of the High Court since the organic synthesis of the events,
circumstances and facts of the case lead only to one
conclusion, namely, that the prosecution has established
that this preplanned and cold blooded murder, executed in
very cowardly and dastardly manner at a helpless and
defenceless young girl was perpetrated by the appellants.
We, quite apart from the reason of the High Court, even
on our independent assessment and evaluations of the
evidence hold that the finding of the Trial Court is not
reasonably sustainable and that the prosecution has
satisfactorily proved the guilt of the accused beyond any
shadow of doubt and consequently the judgment of the High
does not call for any interference.
In the result, the impugned judgment of the High Court
is affirmed and the appeal is dismissed.
T.N.A Appeal dismissed.
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