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PETITIONER: BARATI

       Vs.

RESPONDENT: STATE OF U. P.

DATE OF JUDGMENT12/03/1974

BENCH: KHANNA, HANS RAJ BENCH: KHANNA, HANS RAJ KRISHNAIYER, V.R.

CITATION:  1974 AIR  839            1974 SCR  (3) 570  1974 SCC  (4) 258  CITATOR INFO :  R          1979 SC 319  (12)  RF         1992 SC 891  (24)

ACT: Penal Code-S. 302 Code  of Criminal Procedure-s. 417-Power of appellate  Court to  review at large evidence on which order of acquittal  by trial  court  founded--No limitation on  power--Evidence  of close  relations--If could be  believed--Dying  declaration- Effect of.

HEADNOTE: The  appellant  and  his  companions  were  charged-with  an offence  under  s. 302 I.P.C. for causing the death  of  the deceased by pouring acid on him when he was sleeping on  his cot  on  the night of the occurrence.  After  recording  the first  information report the police sub-inspector  recorded the  statement  of the deceased and at  the  dispensary  the doctor  recorded the statement of the deceased, in  both  of which he stated that the appellant poured acid over his body and  caused injuries to him.  The deceased succumbed to  his injuries.   Disbelieving the prosecution evidence the  trial court  acquitted  him.   The High Court on  the  other  hand accepted  the evidence of all the prosecution witnesses  and convicted  and sentenced the appellant to life  imprisonment but acquitted the remaining two accused. In appeal to this Court it was contended that the High Court should not have reversed the judgment of the trial court and the  evidence  relied  upon  by  the  High  Court  was   not satisfactory. Dismissing the appeal. HELD  :  that the approach of the trial  court  was  clearly unreasonable  and  the  High Court was  fully  justified  in setting.aside  the acquittal of the. appellant.  It is  well settled  that  in  an appeal under s. 417  of  the  Code  of Criminal  Procedure  the Court has full power to  review  at large  the  evidence  on which the order  of  acquittal  was founded  and to reach the conclusion that upon the  evidence the  order of acquittal should be reversed.   No  limitation should  be  placed  upon  that  power  unless  it  be  found expressly  stated in the Code, but in exercising  the  power conflict  by  the Code before reaching its  conclusion  upon

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facts   the  High  Court  should  give  proper  weight   and consideration to such matters as (1) the views of the  trial judge  as  to  the credibility of  the  witnesses;  (2)  the presumption  of  innocence  in  favour  of  the  accused,  a presumption  certainly not weakened by the fact that he  has been acquitted at his trial; (3) the right of the accused to the  benefit  of any real and reasonable doubt and  (4)  the slowness of an appellate court in disturbing the finding  of fact  arrived at by a judge who had the advantage of  seeing the witnesses. [576 D-F] In  the  instant case there was no doubt that  the  deceased died  as a result of acid bums.  There was no cogent  reason to  disbelieve  the evidence of the  prosecution  witnesses. The  trial  court was wrong in rejecting evidence  of  these witnesses  on  the  ground that they  were  related  to  the deceased.! Close relatives of the deceased would normally be most  reluctant  to  spare the real  assailant  and  falsely mention  the name of another person as the  one  responsible for  causing injuries to the deceased.  The  deceased  would not  spare his real assailant’ and falsely mention the  name of  the  appellant  as one who poured acid  over  his  body. There was no reason to discard the dying declaration made by the  appellant to the police sub-inspector, The trial  Court was  wrong in rejecting the dying declaration to the  police (F.I.R.)  on the ground that the deceased had stated to  the doctor that he had become unconscious after the  occurrence. There was nothing in the statement recorded by the doctor to indicate that the deceased remained unconscious for. a  long time and as such was not in position to lodge the F.I.R. The fact that the language used in the dying declaration made to the  doctor was rather chaste would not go to show that  the said statement could not have been made by the deceased.  As to  the  language  used in the dying  declaration  there  is nothing  abnormal  or  unusual  in  the  same  person  using colloquial  language while talking to one person  and  using refined language while talking to another person. [574 E-F ; 575D; 576A] 571

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 226 of 1970. Appeal  by special leave from the judgment and  order  dated the  14th April, 1970, of the Allahabad High Court  (Lucknow Bench) at Lucknow in Criminal appeal no. 260 of 1968. A.   N. Mulla and O. N. Mohindroo, for the appellant. O.   P. Rana, for the respondent. The Judgment of the Court was delivered by KHANNA,  J.  Barati (26) was tried in the court of  Sessions Judge Sitapur for an offence under section 302 Indian  Penal Code for causing the death of Lekhai (45).  Prabhu (24)  and Ram  Lal (24) were also tried along with Barati for  offence under  section 302 read with section 109 Indian  Penal  Code for having abetted the commission of the offence of  murder. Learned Sessions Judge acquitted all the three accused.   On appeal filed by the State the Allahabad High Court convicted Barati under section 302 Indian Penal Code and sentenced him to undergo imprisonment for life.  The appeal against Prabbu and Ram Lal was dismissed.  Barati then came up in appeal to this Court by special leave. The  prosecution case is that the relations  between  Lekhai deceased  and his younger brother Pancham (PW 3) on the  one side  and  Barati accused on the other were  strained.   All

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three  of  them  belong to  village  Nasirapur  in  district Sitapur.   Dispute had been going on between them  regarding the  construction  of  a wall.   About a  couple  of  months before  the present occurrence, Baratia effected an  opening in  the  western  wall of his house which gave  rise  to  an apprehension  that  he intended to encroach  upon  the  land belonging  to  Lekhai and Pancham.  Pancham  made  complaint dated  May,  27,  1967 to the  Judicial  Panchayat  in  that connection.   The said complaint was still pending when  the present  occurrence took place.  About three days  prior  to the  present  occurrence  Barati and  Prabhu  accused  after arming themselves with lathis went to the door of Lekhai and Threatened  to  assault  him.   Mainku  PW  intervened   and persuaded Barati and Prabhu to go away. On  the  evening  of July 30, 1967,  it  is  stated,  Lekhai deceased  after  taking his meals was lying on a cot  in  an open space near his baithak.  Lekhai’s son Nagai (PW 1)  and brother  Pancham  (PW  3) slept nearby on  another  cot.   A lighted lantern was hanging nearby.  At about 10.30 p.m. the three  accused  came there.  On hearing some  sound,  Lekhai opened his eyes.  Lekhai saw the three accused standing near the  cot.  Ram Lal accused is the brother-in-law  of  Barati accused.   At the instigation of Ram Lal and Prabhu,  it  is stated,  Barati  accused, who was holding a  bottle,  poured acid  over Lekhai.  Lekhai cried aloud and shouted  that  he was  being killed.  On hearing the cries of Lekhai, his  son Nagai and brother Pancham got up from their cot and saw  the three accused standing there.  Barati accused was holding  a bottle  in  his hand.  Nagai and Pancham  too  raised  alarm whereupon 572 Bhallu (PW 2) and Jeorakhan (PW 4), whose houses are nearby, also arrived there with lighted torches and lathis in  their hands.  On seeing them, the three accused ran into the house of Barati and closed the door from inside.  Nagai and others chased the accused and knocked at the door of the house  but the  accused did not open the door.  Nagai, Pancham,  Bhallu and  Jeorakhan were told by Lekhai that Barati  accused  had poured acid over him.  Badri Pradhan (PW 6) also came  there and  on  his enquiry he too was told by Lekhai  that  Barati accused  had poured acid over him.  Nagai, Pancham,  Bhallu, Jeorakhan  and Badri Pradhan PWs saw acid present  all  over the  body of Lekhai deceased.  His clothes too were  stained with  acid.   At the suggestion of Badri,  Lekhai  was  then taken  in a bullock cart by Nagai and Pancham PWs to  police station  Sandhana at a distance of two miles from the  place of occurrence.  Report Ka 1 was lodged at the police station at  2.30 a.m. by Lekhai.  In that report Lekhai stated  that Barati accused had poured acid over his body.  The names  of Nagai, Pancham, Bhallu and Jeorakhan were also mentioned  in the first information report and it was stated that they had seen the accused present near his cot when Lekhai had raised alarm.   The motive for the assault, as given  earlier,  was also given. After recording the first information report, Sub  Inspector Asrarul Haq (PW 18) recorded statement Ka 22 of Lekhai.   In that  statement Lekhai reiterated what he had stated in  the first  information  report.  The  Sub  Inspector  thereafter recorded the statements of Nagai and Bhallu PWs.  Lekhai was then  sent to Misrikh dispensary at a distance of  about  12 miles  from the place of occurrence.  The party  arrived  at the  dispensary  at  about 3 p.m. on July  31,  1967.   Soon thereafter  Dr. Bisht (PW 5) recorded statement Ka II  at  3 p.m.  of Lekhai deceased.  Lekhai was at that time in a  fit condition to make statement.  In that statement also  Lekhai

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stated that Barati accused had poured acid over his body and as  such  had caused him injuries.  The injuries  of  Lekhai were examined by Dr. Bisht at 3 .15 p.m. As  the condition of Lekhai was serious, Dr. Bisht  referred the case of Lekhai to District Hospital Sitapur.  Lekhai was then  taken  to the District Hospital  Sitapur.   The  party arrived in the hospital at about 4 45 p.m. the same day  but about  an hour thereafter at 5 .45 p.m. Lekhai succumbed  to the injuries.  Post mortem examination on the body of Lekhai was  performed  by Dr. N. Verma on the following  day,  i.e. August 1, 1967, at 4 pm. Barati accused absconded after the occurrence.   Proceedings under sections, 87 and 88 of the Code of Criminal  Procedure were initiated against him.  Barati surrendered in court  on August 17, 1967.  He was thereafter put under arrest. At  the trial the plea of Barati accused, with whom  we  are concerned was denial simpliciter.  No evidence was  produced in defence. The trial court did not place reliance upon the evidence  of Nagai, Pancham, Bhallu and Jeorakhan PWs.  The reason  which weighed 573 with the trial court was that the witnesses were related  to the  deceased.   The  evidence  with  regard  to  the  dying declarations  of the deceased was not accepted by the  trial court.  The  deceased, in the opinion of  the  trial  court, became  unconscious  and as such was not in  a  position  to lodge first information report Ka 1 or to make statement  Ka 22.  The trial court also rejected dying declaration  Ka  II recorded  by Dr. Bisht as it found the language of the  same to  be  chaste  and the same, in the opinion  of  the  trial court, was not expected of a rustic living in a village.  In the result the accused were acquitted. On appeal the learned Judges of the High Court accepted  the evidence of Nagai, Pancham, Bhallu and Jeorakhan PWs as well as  the  evidence about the dying declarations made  by  the deceased.   The High Court also took note of the  fact  that Barati accused had a motive to assault the deceased and that when witnesses knocked at his door, he instead of professing his  innocence, did not open the door.  Reference  was  also made to the fact that Barati accused had absconded after the occurrence.  In the result the appeal against Barati accused was  accepted, and he was convicted and sentenced as  above. So  far  as Ram Lal and Prabhu accused were  concerned,  the High  Court  gave  them the benefit of  doubt  and  as  such acquitted them. In appeal before us Mr. Mulla on behalf of the appellant has urged  that  the  High Court should not  have  reversed  the judgment  of acquittal of the trial court in respect of  the appellant.   According to the learned counsel, the  evidence relied  upon  by the High Court is not satisfactory  and  as such  the conviction of the appellant cannot be  based  upon it.  In reply Mr. Rana has canvassed for the correctness  of the view of the High Court. It  cannot  be  disputed  that acid  was  poured  on  Lekhai deceased on the night of July 30, 1967 as a result of  which he  died.  Dr. Bisht, who examined Lekhai deceased  on  July 31, 1967 at 3 .15 p.m., found the following injuries on  his person :               "Burnt  area of black colour on the left  side               of the face, on both sides of the neck, on the               front  part of the whole chest, on  the  right               arm,  right fore-arm, and back part  of  right               palm  on  the  front and  back  part  of  both               shoulders."

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Dr.  Bisht also found black marks caused by running down  of fluid  on  the front and outer part of abdomen  and  on  the vertebral column.  Burnt areas of black colour were found by the doctor on the front and inner part of right thigh, inner and upper Part of right leg and inner part of the left thigh in- the middle.  The injuries, in the opinion of the doctor, were  previous and were caused by acid in liquid form.   The injuries were about 12 to 24 hours old. Lekhai died at 5 .45 p.m. on July 31, 1907.  Dr N. Verma who performed the post mortem examination on the body of  Lekhai on August 1, 1967 at 4 p.m. found the following injuries  on the body 574               "1.Corrosive burns area.  There were marks  of               acid,on  the left side of the face,  in  front               and  both sides of the neck, in front  of  the               chest  and in front, up and back side  of  the               shoulders  ;  upper side and in-front  of               the  right  arm and in front  and  in  several               places  of the other arm.  In front and  outer               side  of  right thigh and in front  inside  of               left  shoulder, in front and down part of  the               right  leg  and both sides of the  back.   The               marks on account of pouring of acid existed on               the left side of the-face, and also existed on               both   sides  of  the  chest,   abdomen,   and               shoulders,  the  inner part of  the  skin  and               flesh  of front of the chest, neck,  side  and               several places became discolored by the action               of   acid.   Injuries  were  on   account   of               corrosion  burns  which were upto III,  IV,  V               degree." On  internal inspection the brain and thin skin  cover  were found  to be congested.  The same was the condition  of  the longs,  larynx,  trachea and bones.  The heart was  full  of blood,  while the stomach was empty.  Death, in the  opinion of  the doctor, was due to shock as a result of the  pouring of acid.  The injuries were sufficient to cause death in the ordinary course of nature.  The  case of the prosecution is that it was Barati  accused who  poured acid over Lekhai deceased as a result  of  which Lekhai died.  In support of this allegation, the prosecution has  relied,  in  the first instance, upon  the  four  dying declarations   of   Lekhai  deceased.    The   first   dying declaration  of  the  deceased was the one made  by  him  to Nagai,  Pancham, Bhallu and Jeorakhan immediately after  the occurrence.   It is in the evidence of these witnesses  that they were told immediately after the occurrence that it  was Barati accused who, had poured acid over him.  There appears to  be no cogent reason to disbelieve the above evidence  of the witnesses.  The trial court, in our opinion, was  wholly in error in rejecting the evidence of these witnesses on the ground  that  they  were related  to  the  deceased.   Close relatives  of the deceased would normally be most  reluctant to spare the real assailant and falsely mention the name  of another  person as the one responsible for causing  injuries to  the deceased.  Lekhai deceased also told  Badri  Pradhan (PW  6)  who arrived at the place of occurrence  on  hearing alarm  that  Barati accused had poured acid  over  him.   No cogent ground has been shown as to Why the above evidence of Badri  Pradhan be not accepted.  All that was  suggested  on behalf of the accused was that Badri was inimical to  Prabhu accused.  If that was so, no reason has been shown as to why Badri should attribute the major part in the assault on  the deceased to Barati accused and not to Prabhu.

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It  is also plain that Lekhai deceased must have seen as  to who  was  the  person who poured acid over  his  body.   The moment  the  acid first came in contact with his  body,  the immediate reaction of Lekhai, as of any other person,  would be  to see as to who was responsible for all that.  Even  if the assailant took only a few seconds to pour acid over  the body of Lekhai, the latter would not have failed to fix  the identity  of  the assailant during that short time.   It  is significant  that  Barati was no stranger to  Lekhai.   They were neighbours and were well known to each other. it is, in our opinion, most difficult 575 to  believe that Lekhai would spare his real  assailant  and falsely  mention  the name of Barati as one who  had  poured acid over his body. Apart from the oral dying declarations made by the  deceased to Nagai, Pancham, Bhallu, Jeorakhan and Badri Pradhan  PWs, we-have  the evidence of Sub Inspector Asrarul Haq that  the deceased  lodged report Ka 1 at the police station  at  2.30 a.m.  when  the deceased was brought there in a  cart.   The deceased  stated  in  that report that  Barati  accused  had poured  acid  over him and thus caused him  injuries.   Sub- Inspector,  Asrarul Haq thereafter recorded statement Ka  22 of  Lekhai, deceased.  In that statement also  the  deceased reiterated  that it was Barati accused who had  poured  acid over him and thus caused him injuries.  We see no particular reason to disbelieve the evidence adduced by the prosecution regarding the dying declaration of Lekhai deceased contained in report Ka 1 and statement Ka 22.  The trial court reacted the  above evidence because it was of the view  that  Lekhai deceased, as mentioned by him in dying declaration Ka 1 made to  Dr. Bisht, had become unconscious after the  occurrence. There  was, however, nothing in that statement  to  indicate that Lekhai remained unconscious for a long time and as such was not in a position to lodge the first information  report at  the  police  station  or make statement  Ka  22  to  Sub Inspector Asrarul Haq.  The view taken by the trial court in rejecting  the above evidence, in our opinion,  was  clearly erroneous’. Another dying declaration upon which prosecution has  placed reliance  was  Ka  11  recorded  by  Dr.  Bisht  in  Misrikh dispensary According to Dr. Bisht, Lekhai was in  possession of  his senses when he made statement Ka 11. Dr. Bisht is  a wholly  disinterested  and  respectable  witness  and  there appears  no  reason as to why his  statement  regarding  the dying declaration Ka 11 be not accepted.  Dying  declaration Ka 11 is a brief document consisting of about 9 or 10 lines. The  statement  incorporated in dying declaration Ka  11  is very  simple  and relates to the pouring of acid  by  Barati accused on Lekhai deceased.  The fact that the language used in  it is rather chaste would not go to show that  the  said statement could not have been made by Lekhai deceased.   The statement  of Lekhai in Ex.  Ka 11 that Barati  accused  had poured  the liquid from a bottle on him clearly  establishes the guilt of Barati accused. Reference was made on behalf of the accused to the fact that statement Ka 11 was sent by Dr. Bisht to Additional District Magistrate  not immediately after recording  that  statement but  on  the third day.  According to Dr. Bisht,  the  delay took  place because of rush of work.  No adverse  inference, in  our opinion, can be drawn from the fact that  the  dying declaration  was  sent by Dr. Bisht on the third  day  after recording  the same.  The dying declaration bears the  thumb impression of Lekhai deceased.  Lekhai was sent from Misrikh dispensary soon after the dying declaration was recorded and

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his  injuries were examined.  There could be no  possibility of any such dying declaration being prepared subsequently. 576 Mr.  Mulla has pointed out that the language used  in  dying declaration Kall is chaste while that used in report Ka 1 as well  as in statement Ka 22 has some words which are  spoken by  villagers.   This fact, in our opinion, is not  of  much significance because there is nothing abnormal or unusual in the  same person using colloquial language while talking  to one  person  and  using refined language  while  talking  to another person. Apart  from the dying declaration& of the deceased, we  have the  evidence  of Nagai, Pancham, Bhallu and  Jeorakhan  PWs that they saw Barati accused with a bottle in his hand  near the  cot  of  the deceased when those witnesses  got  up  on hearing  alarm.   The High Court accepted  the  evidence  of these  witnesses and we see no particular reason to  take  a different  view.  As mentioned earlier, the reason given  by the trial court in rejecting the evidence of these witnesses was wholly erroneous. It  is well settled that the High Court in an  appeal  under section 417 of the Code of Criminal Procedure has full power to  review  at  large the evidence on  which  the  order  of acquittal was founded and to reach the conclusion that  upon the evidence the order of acquittal should be’ reversed.  No limitation  should  be placed upon that power unless  it  be found  expressly stated in the Code, but in  exercising  the power  conferred  by  the  Code  and  before  reaching   its conclusion  upon  fact  the High Court  should  give  proper weight and consideration to such matters as (1) the views of the trial judge as to the credibility of the witnesses;  (2) the  presumption  of  innocence in favour  of  the  accused, presumption  certainly not weakened by the fact that he  has been acquitted at his trial; (3) the right of the accused to the  benefit  of any real and reasonable doubt and  (4)  the slowness  of an appellate court in disturbing a  finding  of fact  arrived at by a judge who had the advantage of  seeing the witnesses.  Keeping the above principles in view as well as the fact that the approach of the trial court was clearly unreasonable,  the  High Court, in our  opinion,  was  fully justified in setting aside the acquittal of Barati  accused. There is, in our opinion, no force in the appeal which fails and is dismissed. P.B.R. Appeal dismissed. 577