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PETITIONER: RAJENDRA PRASAD

       Vs.

RESPONDENT: STATE OF BIHAR

DATE OF JUDGMENT25/02/1977

BENCH: GOSWAMI, P.K. BENCH: GOSWAMI, P.K. CHANDRACHUD, Y.V. SHINGAL, P.N.

CITATION:  1977 AIR 1059            1977 SCR  (3)  68  1977 SCC  (2) 205  CITATOR INFO :  D          1978 SC 434  (5)  R          1992 SC 891  (17)  R          1992 SC1011  (10)

ACT:             Criminal  Procedure Code l898--Powers of  High Court  to         set aside acquittal --Whether trial court judgment should be         palpably wrong--Credibility of witness --Test identification         parade--Delay in.              F.I.R.--Absence  to name accused--If conviction can  be         based on sole testimony of a witness.

HEADNOTE:             P.W.  9 Sabir aged about 18 year went to the   house  of         Lala   (deceased) who used to render physical  training  and         swimming lessons to young boys and requested Lala to  accom-         pany  him to the bank of a river.  When  Lala  was  cleaning         his teeth and washing his face the appellant went there with         4  or 5 persons.  The prosecution case is that those 4 or  5         persons  engaged  Lala in talk and the  appellant  thrust  a         dagger on the back of Lala who died within minutes after the         assault.   20  to 25 persons who were there and P.W.  9  and         others  ran behind the appellant.  The prosecution  examined         13 witnesses out of which 4 were eye-witnesses, namely, P.W.         1, 4, 9 and 10.  The Sessions Judge disbelieved all the  eye         witnesses, and acquitted  the  appellant. The Sessions judge         while acquitting the appellant took the following facts into         consideration :--                          (1) P.W. 4 who lodged the First Information                       Report did not name any accused and, in  fact,                       he did not know the accused before the  occur-                       rence and could not even  identify him at  the                       test  identification parade.                          (2) P. Ws   1 and 10 had opportunity to see                       the  accused  before and  therefore  the  test                       identification  parade could not  be  attached                       much significance.                          (3)  P.  Ws 1 and 2 are’ supposed  to  have                       seen  the  accused  at the time  when  he  was                       running  away from the place   of   occurrence                       and, therefore, it was highly improbable  that

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                     they would be able to retain the impression of                       the accused.                          (4) It is highly improbable that P.W. 9 had                       seen the incident since he  did not go to  the                       Police  Station nor even stayed at the   place                       of occurrence till the arrival of the  police.                       On the other hand, he confined himself in  his                       house  until a constable came to take  him  to                       the police station.  The police in the  begin-                       ning  suspected   him as one                       of  the  persons  who  participated   in   the                       murder  of        the                       deceased.  His conduct is very suspicious.                 The  High   Court in appeal by the State  relied  on         the  evidence of P.W. 9 as being corroborated ’by P.  Ws.  1         and 10.  The  High  Court  therefore,  set aside the acquit-         tal  and  convicted  the, accused under s.  302  I.P.C.  and         sentenced him to rigorous imprisonment for life.                 Allowing  the  appeal under s. 2(a) of  the  Supreme         Court  (Enlargement  of Criminal Appeal  Jurisdiction)  Act,         1970.                 HELD: (1) When a trial court, with full view of  the         witnesses,  acquits  an accused after  disbelieving  direct.         testimony  it will. b.e essential for the High Court  in  an         appeal  against  acquittal  to  clearly  indicate  firm  and         weighty grounds from the record for discarding’ the  reasons         of  the trial court in order to be able to reach a  contrary         conclusion  of guilt of the accused.  The High Court  should         be  able to point out in its judgment that the  trial  court         reasons         69         are  palpably  and unerringly shaky and  its   own   reasons         are   demonstrably Cogent.  As a salutary rule of  apprecia-         tion  of evidence in an appeal against acquittal it  is  not         legally  sufficient  that it is just possible for  the  High         Court  to  take  a contrary view about  the  credibility  of         witnesses  but  it is absolutely imperative  that  the  High         Court  convincingly  finds it well-nigh impossible  for  the         trial court to reject their testimony.  [74 A-C]         (2)  This  is  not a case where   it can be  said  that  the         Sessions  Judge came to a palpably wrong conclusion  on  the         evidence  or that the reasons for acquittal of  the  accused         are  manifestly erroneous, shocking one’s sense of  justice.         The High Court was not right in interfering with the acquit-         tal of the accused in this case. 174-D]              (3) Since the Sessions Court and the High Court reached         different conclusions from the same evidence this Court went         through the entire evidence carefully in order to see wheth-         er  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. [70E-F]

JUDGMENT:             CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 159         of 1974.             (From the Judgment and Order dated 2-1-1974 of the Patna         High Court in Govt. Appeal No. 48/68).         S. Shaukat Hussain, for the appellant.         Pramod Swarup, for the respondent.         The Judgment of the Court was delivered by             GOSWAMI, J. The day, April 4, 1966, broke  ominously for         Lala  Barhi (deceased) who used to render physical  training         and  swimming  ;lessons to young boys. One such  boy,  Sabir

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       Hanfi  (PW  9), aged about ’l8 years, went to the  house  of         Lala  Barhi  (hereinafter,  Lala)  at Purani Bazar,  in  the         town of Muzaffarpur.  Lala was then asleep. Sabir Hanfi woke         him up and they both went to the Ashram Ghat (known also  as         Balu Ghat) on the bank of the Gandak river.  There when Lala         was cleansing his teeth and washing his face., the appellant         Rajendra Prasad (hereinafter to be described as the accused)         came  there with four or five persons.  It is said that  the         accused  had  some ’differences with Lala  over  some  money         which  he  had given to him to assault somebody  which  Lala         failed  to accomplish. As his companions were  keeping  Lala         engaged in talk, the accused thrust a dagger on the back  of         Lala  who then called Sabir Hanfi.  lala himself  a   robust         young man. rushed towards the accused who took to his  beels         with  his  companions.   Lala fell down  rushing  forward  a         space.  of about forty yards and breathed his  last.   Sabir         Hanfi and others also ran ’behind Lala to his aid.             Although thirteen witnesses were examined by the  prose-         cution  only four of them were eye-witnesses to  the  occur-         rence.  They are Ram Pukar Sah (PW 1), Parmeshwar Prasad (PW         4),  Lachman  Prasad (PW 10) and Sabir Hanfi  (PW  9).   The         Sessions Judge disbelieved all the eye-witnesses and acquit-         ted the accused.  On the other hand the High Court relied on         the evidence of PW 9 as being corroborated by PWs 1 and  10.         The High Court, therefore, set aside the acquittal         70         and  convicted the accused under section 302,  Indian  Penal         Code,  and sentenced him to rigorous imprisonment for  life.         Hence  this appeal under section 2(a) of the  Supreme  Court         (Enlargement of Criminal Appellate Jurisdiction) Act, 1970.             PW  4  who lodged the first information  report  without         naming  any accused and who did not know the accused  before         the   occurrence  could not even identify him  at  the  Test         Identification Parade which was held on September 29,  1966.         The evidence of PW 4 is, therefore, of no significance.  The         case,  therefore, depended upon the evidence of  recognition         of the accused while running from the place of occurrence by         PWs  1,  10 and the direct testimony of PW 9  who  knew  the         accused  from before.  The accused was known only  to  Sabir         Hanfi (PW 9) by name.  The other two witnesses did not  know         the accused from before and saw him only while running  away         followed by twenty or twenty five other persons.             The  evidence of PWs 1 and 10, which we  have  carefully         perused, go to show that they did not know the accused  from         before.  They however,.. identified the accused in the  Test         Identification Parade held on September 29, 1966, nearly six         months after the occurrence. There is no reason why the Test         Parade  was delayed so  long  when  the accused had  surren-         dered  on June 17, 1966. As stated earlier, the trial  court         which  had  opportunity to see these  witnesses  disbelieved         them  by giving certain reasons.  For example, according  to         the Sessions Judge, these two witnesses had the  opportunity         to  know  the  accused from before  and,.  therefore,  their         identification  in  the Test Identification Parade  was  not         considered of such  significance.  He  further observed that         these  witnesses  saw the accused at the time  when  he  was         running  away from the place of occurrence  and,  therefore,         "it  is highly improbable that they would be able to  retain         the impression of the assailant of Lala Barhi in their  mind         for  so  many months".  The High Court, on the  other  hand,         held that identification by PWs 1 and 10 was reliable.  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

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       anti  unrealistic as to entitle the High Court to  interfere         with the same.             PW  1  is the father of PW 10.  His uncle died  on   the         previous night and both he and his son (PW 10) went for  his         cremation  at  Chandwara Ghat.  The cremation  was  over  at         about  6.16  A.M. on the morning of the day  of  occurrence.         They  then  went to Balu Ghat for a bath.    They  saw  Lala         Barhi  doing physical exercise on the bank of the river  and         they went to take their bath in the river.  After about  ten         minutes they heard a huIIa ‘pakro’ ‘pakro’.  On hearing  the         hulla  they came up to the Bank from the river and saw  Lala         Barhi  running away towards the East and four  persons  were         chasing him and raising a huIIa ‘pakro’ ‘pakro’.  They  fur-         ther  stated that about twenty or ’twenty-five persons  fol-         lowed  to  catch two or three persons who were  chasing  the         Lala.   They had come out of the water at that time.  PW  10         stated  that he could not identify the other  companions  of         Lala  because he "saw their back only and not  their  face".         Since both the         71         witnesses  came out of the water on hearing the hulla  which         was  raised only after the assault, it was not possible  for         these  two  witnesses  to see the stabbing.   Even  if  they         recognised the persons running away, they would not be  able         to  say who, amongst them, had  stabbed  the  deceased.   PW         10  has  candidly admitted that he could not  recognise  the         companions of the deceased as they were running ahead and he         was  watching  from behind,  If this be  the  position  with         regard to the companions of the deceased it is difficult  to         see  how  these  two witnesses were able  to  recognise  the         accused  who was  running  away. Apart from that there  were         twenty to twenty five others following the accused with  two         or  three persons thus obstructing a clear view of  the  ac-         cused.  In this state of evidence it is impossible to  hold,         on  their evidence, that the learned Sessions Judge did  not         reach a correct  conclusion that identification by these two         witnesses  was  futile for the purpose of  establishing  the         charge against the accused.  We are unable to appreciate how         the  High Court in this state of evidence  could  reasonably         come  to a contrary conclusion with regard to the  testimony         of these two witnesses.         This leaves PW 9 for consideration.  Although PW 9 knew  the         assailant by name, there is no mention of the accused’s name         in.  the  first information report lodged the same  day.  at         12.00 noon, five hours after the occurrence, the Thana being         only one and a half miles from the place of occurrence.  The         accused  is described in the first information report as  "a         dark complexioned healthy young man, about the age of  24/25         years".   It  may be that PW 9 is the only witness  who  had         seen the stabbing.  He may be the witness from the beginning         of  the occurrence till the end and who described the  inci-         dent   in  detail. According to him while the  deceased  was         cleansing   his  teeth  the accused came near him with  four         or  five  persons and that while some of then kept  the  de-         ceased engaged in some conversation the accused stabbed  the         deceased  on his back with a dagger.  The whole  case  will,         therefore,  rest on the evidence of this witness  who  knows         the accused from before.  The Sessions Judge has  considered         him as unreliable for the following reasons :--                         (1)  It is highly improbable that if he  had                       seen the incident he would not have rushed  to                       the police station or even stayed at the place                       of  occurrence till the arrival  of   the  po-                       lice.                          (2)  That on the other hand PW  9  confined

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                     himself  in  his                       house  from 4th April till the evening of  the                       following                                  day                       when a constable went t6 his house to take him                       to the police station.                          (3)  The police at first suspected that  he                       might  have  a hand in the murder of  the  de-                       ceased  and suspected him and kept him in  the                       police lock-up.                          (4)  The  conduct of the  witness  is  very                       suspicious  and no reliance can be  placed  on                       his evidence.         6--240SCI/77         72             The  High Court has considered the first two grounds  as         insufficient  for  holding the witness  as  unreliable.   It         observed  that  "it is of common  knowledge  that  generally         people try to avoid becoming an informant and to be an  eye-         witness  of the occurrence for various reason". With  regard         to  the third and fourth grounds the High Court referred  to         the station diary entry (Ex. 4) and to the evidence of PW 12         and held as follows :--                             "...  it was ’by mistake that PW  9  was                       arrested  by  a constable.  P.W. 12 has stated                       that in fact he was a prosecution witness.   I                       do not find any valid reason for  discrediting                       the evidence of P.W. 9".             From  the evidence of PW 9 and PW 12 and in the  context         of the station diary entry (Ex. 4), the position emerges  as         follows :--             A  police  officer  went to the house of  PW  9  in  the         evening of April 5, 1966, to bring him to the Thana.  He was         found  by the Officer-incharge of the Thana (PW 12)  sitting         at  the  police station at 7.30 P.M.. Now let  us  read  the         station  diary entry (Ex. 4). Before we quote the.  same  we         should state that this exhibit has not been correctly trans-         lated  at  page 56 Of the Paper Book.  We,  therefore,  our-         selves examined the original station diary entry and we will         set out the same as correctly translated as under :--                       "XVIII. Entered in Thana Daily S. 186                        186.  That this time, Shri  G.S.  Chaturvedi,                       Town  Inspector, came to Thana and  took  with                       him Mohd. Sabir Hanfi alias Funna r/o Saraiya-                       ganj  Thana Town---the accused (Abhiyukta)  in                       connection  with S. No. 5(4)66, Sec. 302  IPC.                       On  search nothing was found  on   his  person                       except  clothes he was wearing. After all  the                       rules  of Hajat were observed he was  kept  in                       Hajat".             Some  uncertainty  was  felt by  counsel  regarding  the         meaning  of  the word "hajat".  We have no doubt  that   the         word   "hajat"  means custody in this  context.   Bhargava’s         Standard Illustrated Dictionary, Hindi Language,  gives  the         meaning  of Hajat, inter alia, as custody, and states  thus:         "Hajat mein rakhna" means "to keep a culprit in custody".             The  High Court, we are afraid, does not appear to  have         examined the original station diary entry (Ex. 4) with  care         otherwise  it would not have come to the conclusion that  it         was by mistake that PW 9 was arrested by a constable simply,         from  the self-serving statement of PW 12.  The  High  Court         does not even refer to the fact that a very important recit-         al  in  the original entry  (Ex.  4),   namely,   the   word         "abhivukta"  (accused) has been scored out and in its  place         the word "gavah" (witness) was substituted.  The  interpola-         tion of the word "gavah" (witness) for "abhiyukta" (accused)

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       appeared  to  be  of  a different writer from  the  original         writings  in the entry.  This is serious tampering  with  an         official  record in a criminal case when a man’s life is  in         jeopardy  in a trial for murder under section 302  IPC.   We         have  also grave suspicion about the date of  correction  of         the entry in Ex. 4.         73                 Although the above entry shows that PW 9 was brought         to  the Thana by the Town Inspector, G.S. Chaturvedi, he was         not   even examined in the case to show why and  under  what         circumstances  PW 9 was brought by him.  This entry  in  the         official  record clearly shows that PW 9 was at  that  stage         considered as an accused in connection with this murder case         and  his  person was searched before confining  him  in  the         Hajat.  If he was only a witness there was no reason why his         person  would be searched. and why he would be kept  in  the         lock- up "after all the rules of Hajat were  observed".  The         High  Court completely lost sight of these serious  infirmi-         ties  in   the  prosecution evidence and it  was  absolutely         impermissible  to  accept the statement of PW l  2  when  he         stated  that PW 9 "had not been arrested" and that  "he  was         only  a  prosecution witness.                 There  are  some  other  disquieting  features  with         regard to the evidence of PW 9.  It is not understood why he         should  have said that a constable brought him to the  Thana         whereas  the  entry (Ex. 4) shows that the  Town  Inspector,         Chaturvedi,  brought  him to the Thana.  If,  as  the  entry         shows, he was brought by the Town Inspector, Chaturvedi, and         he  was  kept confined in the lock-up as an accused  in  the         murder case, it is difficult to comprehend how at that  very         stage  Ex.  4 could be considered by PW 12 as  containing  a         wrong  recital  without  reference to  the  Town  Inspector.         Besides, PW 12, as he says, had taken charge of the investi-         gation from Sub Inspector, Gupteshwar Dayal (PW 13) at 11.00         A.M.  on April 5, 1966, inspected the place  of  occurrence,         unsuccessfully  searched for the suspects  Rajendra  Prasad,         Ram  Bilas Sahani and Mohan Jha at their  houses,.  examined         some  witnesses and then reported to the Thana at 7.30  P.M.         to  find PW 9, the principal witness, sitting  there.   Even         then he would not record the statement of PW 9.  He admitted         during the course  of  cross-.examination that when he first         interrogated  PW  9  at the Thana he had  not  recorded  his         statement.   He  did not even record his statement  when  he         came  to the Thana from his house at 11.00 P.M. that  night,         These  are very suspicious ’circumstances.  PW 12,  however,         admitted  that he recorded the statement of PW  9   on   the         following   day (6-4-1966) at 12.05 A.N., after having  pro-         duced  him   before   the Superintendent of  Police.   PW  9         admits  that  he was interrogated by the  Superintendent  of         Po1ice  for twenty to twenty five minutes.  PW 12 stated  in         his  examination-in-chief that he allowed PW 9 to go to  his         house after he had recorded his statement on April 6,  1966,         at  12.05  A.N.  From the evidence of PW 12  read  with  the         entry  (Ex. ’4) it does not appear that PW 9 was freed  from         police  custody at least till his statement was recorded  on         April 6, 1966.  Again, the statement of PW 9 was recorded by         the  Magistrate under section 164, Criminal Procedure  Code,         on  April  12,  1966, when perhaps the  police  had  finally         decided  to treat him as a prosecution witness  instead.  of         an accused.  This conclusion is irresistible on the state of         evidence  to which we have referred above.  If under   these         circumstances  the Sessions Judge held that the  conduct  of         this  witness was such as would seriously affect his  credi-         bility, the High Court was not at all justified in taking  a         contrary view even without a proper analysis of the oral and

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       documentary  evidence.  When the evidence of recognition  of         the         74         accused by PWs 1, 10 and 4 is unreliable, no conviction  can         be  based on the sole testimony of a witness like PW  9,  on         whom the first suspicion fell, without any corroboration..                 When a trial court, with full view of the witnesses,         acquits  an accused after disbelieving direct testimony,  it         will  be essential for the High court, in an appeal  against         acquittal,  to  clearly indicate firm and  weighty  grounds,         from  the  record, for discarding the reasons of  the  trial         court in order to be able to reach a contrary conclusion  of         guilt  of  the accused.  The High Court should  be  able  to         point out in its judgment that the trial court’s reasons are         palpably   and   unerringly shaky and its  own  reasons  are         demonstrably cogent.  As a salutary rule of appreciation  of         evidence, in an. appeal against acquittal, it is not legally         sufficient  that it is just possible for the High  Court  to         take a contrary view about the credibility of witnesses  but         it is absolutely imperative that the High Court convincingly         finds it well-nigh impossible for the trial court to  reject         their testimony.  This is the quintessence of the  jurispru-         dential aspect of criminal justice.                 This  is  not a case where it can be said  that  the         Sessions  Judge came to a palpably wrong conclusion  on  the         evidence  or that  the reasons for acquittal of the  accused         are  manifestly erroneous, shocking one’s sense of  justice.         The High Court was not right in interfering with the acquit-         tal  of the accused in this case. The appeal is,  therefore,         allowed.  The judgment of the High Court is set aside.   The         accused shall be released from detention immediately.         P.H.P.                                                Appeal         allowed.         75