REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 934-939 OF 2001

Rama Kant Verma ..Appellant

Versus

State of U.P. & Ors. ..Respondents

WITH

CRIMINAL APPEAL NOS.1202-1206 OF 2001

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Challenge in these appeals is to the judgment of a  Division Bench of

the  Allahabad  High  Court,  Lucknow  Bench,  directing  acquittal  of  the

respondents  2  to  5  who were found guilty  of  offences  punishable  under

Section 302 read with Sections 149 and 148 of the Indian Penal Code, 1860

(in short the ‘IPC’).  Appellant was the informant in the case.  The aforesaid

accused  respondents  were  found  guilty  of  offences  punishable  under

Section 302 read with Section 149 IPC and 148 IPC and each of them was

sentenced  to  be  hanged  separately  till  death.   Since  confirmation  of  the

death sentence was required, reference was made in terms of Section 366 of

the  Code  of  Criminal  Procedure,  1973  (in  short  the  ‘Cr.P.C.’).   The

convicted accused preferred appeals. The present appellant filed a revision

against the judgment and order of acquittal in respect of two persons namely

Ram Kripal  Verma and Ram Tilak  Verma.  The  High Court  allowed  the

appeal  filed  by  the  convicted  appellants,  while  dismissing  the  revision

petition filed by the informant and rejected the reference.

2. The prosecution version as unfolded during the trial is as follows:

An F.I.R.  was  lodged  at  6.30  A.M. on  11.11.94  at  Police  Station,

Tarun by Rama Kant  (P.W. 1)  with the  allegation  that  his  cousin  Girish

Varma was  sleeping  in  the  room of  the  Tube-well  alongwith  him.   His

grandfather  Sukhai  and  his  uncle  Ram Naresh  were  sleeping  under  the

Chhappar  near  the  tube-well.   His  brother  Umakant  Varma  (PW2)  was

sleeping inside the Saria for looking after the cattle. Sukhai and Ram Naresh

raised alarm and asked for help, at which Ramakant alongwith Girish came

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out  of  the  tube-well  room after  opening  its  door,  and  saw that  Krishna

Murari and Kashi Ram by means of Gandasa and Raghava Ram and Ram

Milan by means of Banka, and 2-3 others, who had  muffled/covered their

faces by means of cloth were causing injuries to Sukhai and Ram Naresh.

Ram Dev, another uncle of the informant, was sleeping south of the tube-

well under the Chhappar. Ramakant, Umakant and Girish tried to rescue the

victims, but the assailants attacked Girish and Ram Dev also by means of

their  weapons.  Ramakant,  Uma  Kant  escaped  and  ran  into  the  field  of

Sugarcane  and  also  raised  alarm.  It  was  night  time  2.30  A.M.  on  11  .

11.1994 (in between the night of 10th and 11th November, 1984).  Due to

cries and alarm raised by them, Ram Tej, father of informant, and several

villagers  came with  lathis  and  torches.  The  assailants  ran  away  towards

south.  It  was  further  alleged  that  the  four  appellants  were  seen  and

identified by Ramakant (PW l) Uma Kant (PW 2), Ram Tej and villagers in

the light of the torches and in the electricity light. It was also alleged that

litigation in respect of land had been going on in between the victims and

appellant  Krishna Murari.  The cattle  of  Krishna Murari  were sent  to  the

house of Ram Kripal ten days prior to the occurrence and he had also sent

his family out of the village to  his wife's house  in another village. Rama

Kant further alleged that in the morning Daljeet Singh (PW3),  Jaising Mau

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and Hari Om (PW4) told him that on 10.11.94 at 9.00 A.M. the appellants

were seen by them, taking  non-vegetarian  food alongwith Ram Tilak and

Ram Kripal  at  the  shop  of  Ram Kripal.  Ramakant  therefore,  alleged  his

suspicion  against  Ram Kripal  and  Ram Tilak  as  the  persons  who  were

instrumental in the commission of this crime conspiring with the appellants.

All the four victims had died on the spot. Leaving them there as such on the

spot, he lodged the written report (Ext.Ka.l) at the Police Station where its

check  report  (Ex.Ka.16)  and  G.D.entry(Ex.Ka.17)  was  prepared  by  Ram

Harsh Yadava (PW12) head constable and thus a case crime No.156 of 94

was registered.  Investigation was given to the Station Officer of the P.S.

Sudhakar (PW 10)  who, at the time of registering of the case, was busy in

his duty  at Ayodhya in “Chaulah  Kosi Parikarima" and who on receiving

information of this case reached PS Tarun, and obtained copy of the FIR

and other relevant papers from the PS and reached the spot of occurrence in

village  Bearauli  at  about  9.00  A.M. and  found  other  police  personnel

including Riaz Khan of P.S, Haiderganj, and Sibte Haider SSI (PW13) of PS

Tarun. He got the inquest reports of the dead Sukhai and Ram Naresh pre-

pared through Riaz Khan. S.I. Riaz Khan died before the evidence and the

inquest reports and connected papers Ext.Ka 25 to Ext.Ka 36 were proved

by Ram Narain Pandey (PW 14) and also got the inquest reports in respect

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of deceased Ram Dev and Girish prepared through PW 13 Sibte Haider S.I.

(Ex.Ka 17. 18 and Ka.20 to 24) under his supervision and direction. He sent

the  dead  bodies  for  post  mortem examination  to  Faizabad  through con-

stables at about 12.15 P.M. on that very day i.e. 11.11.1994.

Sudhakar  Pandy  I.O.  (P.W.10)  took down the  statements  of  Rama

Kant Derma (PWl), Manik Lal Varma (PW7) and Munna Lal (PW 8).  He

inspected the place of occurrence at the instance of the witnesses of fact and

prepared the map of the site (ExKa 6). He found the dead body of Sukhai on

a Cot and found Kathri and Chadar and Razai thereon stained with the blood

of  the  deceased  and  found  blood  stained  on  the  wall  and  prepared  its

recovery memo (ExKa.7)  and  sealed  these  articles  with  a  material  taken

from the wall as well. Similarly, the dead body of Ram Naresh was on a cot

with Angocha, Kathri, Chadar, another coloured chadar and one bush-shirt

stained with blood.  There were stains of blood on the wall and the memo

(Ex Ka8) thereof was also prepared and articles with blood on walls were

sealed separately. In the same manner, dead body of Ramdev was found on

the Cot with kathri, chadar, banyan, gamchha stained with blood, and blood

was found on the ground near the Cot. These articles were sealed and blood

stained  and  sample  earth  was  taken  and  sealed  separately  and  memo

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(Ex.Ka9) was prepared by him. The bedding consisting of Kathri, Rajai and

two chadars and Tehmad of deceased Girish were  found on the cot which

was also stained with blood. The dead body of Girish was found in a pit

(gaddha) where his blood had also fallen down. Blood  stained and sample

earth were taken into possession and were sealed separately by the I.O. and

memo of this and other articles was prepared (Ex.Ka 10). Then statements

of witnesses were taken down. He arrested Kashiram, Raghava Ram and

Ram  Tilak  on  the  same  day.  He  was  transferred  from  Tarun  P.S,  on

13.11.94. The investigation then was conducted by his successor Ashutosh

Sharma (PW 11), who arrested Ram Milan and recorded the statements of

remaining witnesses and then submitted charge sheet (Fa.Ka15) against the

six named persons.

Post-mortem on the dead bodies was conducted by Dr. O. P .Khattri

(PW-9).

After  investigation  charge  sheet  was  filed.  As  all  the  six  persons

alleged false implication, trial was held.  Accused persons were examined

by  one  head  constable  Nahar  Singh  of  the  CB  CID  Dog  squad  Head

Quarter,  Lucknow.  Fourteen  witnesses  were  examined  to  further  the

prosecution  versions.  Ramakant  (PW1),  Umakant  (PW2),  Daljeet  Singh

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(PW 3),  Hari  Om (PW4),   Amar  Jeet  Singh  (PW5),  Mithai  Lal  (PW 6)

Manik  Ram Varma (PW7) and Munna Lal  (PW8) were  stated to  be  eye

witnesses.  The trial court believed prosecution versions and disbelieved the

defence plea and convicted and sentenced the accused persons as aforesaid.

In appeal the High Court directed acquittal.

3. Learned counsel for the appellants submitted that the conclusions of

the  High  Court  are  utterly  fallacious  and  mostly  based  on  surmises  and

conjectures.  It has not even analysed the factual conclusions.   

4. In  response,  learned  counsel  for  the   acquitted  accused  persons

submitted that analysis have been made from the evidence of PWs 1 & 2 by

the High Court to point out the infirmities.  Identification was not possible,

and, therefore, the presence as claimed is doubtful.  So the High Court is

correct in its conclusions. Even if the reasons are not elaborate, the evidence

of PWs 1 & 2 has to be read together and a reasonable doubt is raised about

the credibility  of  these  witnesses.  There  are  manifest  suppressions.  Vital

factors like absence of light in the chappars and improbability of any light

emanating from the bulbs hanging on the Neem Tree have been taken note

of.  The  room and  the  chappars  are  at  the  distance  of  100  metres  and,

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therefore, the possibility by identification was rightly disbelieved. Except

one dead body, found in the pit, others were found in lots. Since the accused

persons  are  known  co-villagers,  there  had  obvious  reasons  to  hide  their

identity. There were omissions in the inquest report and there was also delay

in sending the FIR and the inquest report.  Since all relevant aspects have

been  considered,  in  an  appeal  of  acquittal,  so  far  as  the  appellants  are

concerned, no interference is called for.

5. In the State’s appeal similar stand to that of the informant have been

taken.  

6. A bare perusal of the High Court’s orders shows that the conclusions

of  the  High  Court  are  utterly  confusing  and  based  on  surmises  and

conjectures.  A few instances about the absurd conclusions are as follows:

“A reading of the post mortem examination report

indicates  that  the  four  persons  were  done  to  death

without  any hindrance or  interference and without  any

person resisting forcefully and without raising any alarm.

xxx xxx xxx

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It was alleged in the FIR that the miscreants were

seen and identified by Ramakant, Umakant, Ram Tej and

“villagers” in the light of electricity and torches.

PW1 Ramakant says that he had a torch with him.

He is unable to say as to why he did not show it to the

I.O. or why its memo was not prepared or why the I.O.

was not told about it.

xxx xxx xxx

It is stated that it was dark in the field.  It was not

mentioned in the FIR that any of these persons had any

torch  with  them at  that  crucial  time.   The  dispute  of

presence of electricity light would have been done away

with if the torches had been with them.  But PW 2 says

that there was no other source of light there except the

bulbs but PW 1 says that he had a torch; and was unable

to say whether PW2 had it or not.  This shows that none

of them was even present on the spot.  The story about

torch is quite false.

Xxx xxx xxx

There was no mention in the FIR that there were

two  bulbs  or  these  were  hanging  on  the  two  trees.

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Conspicuously  the  entire  story,  at  all  places,  is  silent

about the miscreants having any torch etc.

Xxx xxx xxx

According to PW 2 Umakant and PW1 Ramakant

none of the male family members were sleeping in the

house  in  the  village  and  all  the  male  members  of  the

family were sleeping at the tube-well.  Although there is

nothing  very  much  abnormal  in  it,  but  under  the

circumstances  this  does  not  seem to  be  the  truth.  The

presence of Ramakant and Umakant on the spot is highly

doubtful  and  rather  false.  PW  2  says  that  all  the

appellants  had  open  faces,  whereas  the  other  three

persons had muffled their faces by cloth and had come to

commit the crime taking advantage of night and without

raising any alarm or  noise.   And that  their  houses  are

next to their house and some are within a radius of 100

metres.  This all appears to be unbelievable in view of

the above and is thus false.

Xxx xxx xxx

FIR number and distance of P.S. from the place of

occurrence  which  find mention  in  the F.I.R.,  have  not

been mentioned in the four inquest reports prepared by

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the  two  police  officers  under  the  supervision  and

direction of the I.O.

Xxx xxx xxx

Even there is no GD on record of the arrival of the

IO to the PS for taking the papers, and of departure for

the spot on 11.11.1994.

Xxx xxx xxx

Though normally these things do not matter much

and in normal cases prosecution cannot be made to suffer

due  to  faults  and  latches  on  the  part  of  investigating

agency or  other  police  officials.   But  in  the  facts  and

special  circumstances  of  this  case,  these  become

material.

Xxx xxx xxx

The Doctor(PW 9) conducted post mortem of the

dead bodies on 12.11.1994 w.e.f. 11 AM and last  was

started  at  3PM  if  the  dead  bodies  had  been  received

earlier then the post mortem could have been conducted

earlier in the morning, or could have been conducted the

same day.   The doctor  was also  not  categorical  in  his

statement  about  the  FIR.  The  time  of  death  was

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approximate and it could not definitely be said that the

occurrence  took place at  2.30  AM. These  all  facts  are

fatal to the case of prosecution and indicate that FIR was

prepared some time later on and was ante timed.

Xxx xxx xxx

After  arrival  of  the  police,  efforts  were made to

find out the culprits and for that purpose help of the dog

squad was also taken.  And when dog squad also failed

then the  case  was  made out  naming those  with  whom

there  was  enmity,  and  that  must  have  been  done  on

suspicion.  The FIR was ante-timed.”

7. The  witnesses  could  not  have  stated  the  scenario  with  surgical

precision. In  State of A.P. v.  Kandagopaludu  [2005(13) SCC 116] it  was

inter alia observed as follows:

“We have been taken through the evidence of PWs 1,  2  and  3  before  whom extra-judicial  confession  has been made by the accused. The testimony of PWs 1, 2 and  3  is  consistent.  The  learned  counsel  for  the respondent pointed out that in the evidence of PWs 1 and 2  there  is  contradiction  that  the  accused  did  not  state before them that he came seeking protection from them. In  our  view,  this  discrepancy  cannot  be  termed  as  a contradiction  which  would  be  fatal  to  the  prosecution case.  Every  discrepancy  in  the  statement  of  a  witness

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cannot  be  treated  as  fatal  to  the  prosecution  case.  A discrepancy which is  not  fatal  to  the  prosecution  does not create any infirmity. The incident had taken place on 24-1-1992 and PW 2 was examined on 22-1-1996 after almost four years. Human memories are apt to blur with the passage of time. After lapse of almost four years, it cannot  be  expected  that  a  witness  can  depose  with mathematical precision.”

8. In B.K. Channappa v.  State of Karnataka [2006(12) SCC 57] it was

inter alia observed as follows:

“We have independently scrutinised the evidence of the material witnesses in the teeth of the rival contentions of the parties. On reappraisal and scrutiny of the evidence of  the  injured  witnesses  Shekharappa  (PW  2),  B.G. Shivamurthaiah (PW 3) and B.G. Prakashaiah (PW 4), they have fully established the case of  the prosecution against A-2, A-3, A-17, A-19 and A-20, although there were  certain  discrepancies  in  their  testimony  and  in comparison to the versions of PW 6, PW 7 and PW 19, the  eyewitnesses,  in  regard  to  the  weapons  of  offence individually used by A-1, A-3, A-17, A-19 and A-20 for inflicting  injuries  on the person of  each of the  injured witnesses  as  also  on  the  person  of  the  deceased.  The discrepancies, as pointed out by the learned counsel for the  appellants,  are  minor  and  insignificant.  The occurrence  took  place  on  5-7-1995  and  the  witnesses were examined in the court after about a gap of almost five years. The evidence on record further shows that the injured  witnesses  had  been  subjected  to  lengthy  and searching cross-examination and in such type of cross- examination,  some  improvements,  contradictions,  and omissions  are bound to occur  in  their  evidence,  which cannot be treated as very serious, vital and significant so as  to  disbelieve  and  discard  the  substratum  of  the

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prosecution case. The evidence of the injured witnesses and  other  eyewitnesses  has  been  rightly  reappreciated and accepted by the High Court and we find no cogent and  sound  reason  to  differ  from  the  well-reasoned judgment upholding the order of the trial court. There is, therefore,  no  merit  in  the  argument  of  the  learned counsel for the appellants that the evidence of the injured witnesses and other eyewitnesses should be labelled as the  evidence  of  the  interested  witnesses.  On  the  other hand, we find that the evidence of all the eyewitnesses including  injured  persons  is  quite  natural,  convincing and  trustworthy.  There  is  no  material  on  record  from which  an  inference  can  be  drawn  that  the  material witnesses  have  implicated  the  appellants  Karibasappa (A-2),  Halanaika (A-3),  B.K. Manjunatha (A-17),  B.K. Parmeshwarappa (A-19)  and B.K.  Shivarajappa  (A-20) in a false case.

9. There is  substance in the plea by learned counsel for the appellant

that the presence of the witnesses has been erroneously discarded. It was

submitted  by the  respondents-accused  that  the  complainant  has  no  locus

standi  to prefer  any appeal.   In any event,  State has preferred appeal.  In

Ramakant Rai v.  Madan Rai & Ors. [2003(12) SCC 395] it was inter alia

observed as follows:

“A  doubt  has  been  raised  about  the  competence  of  a private party as distinguished from the State, to invoke the jurisdiction  of  this  Court  under  Article  136  of  the Constitution of India, 1950 (in short the ‘Constitution’) against a judgment of acquittal by the High Court. We do not  see  any  substance  in  the  doubt.  Appellate  power vested in this Court under Article 136 of the Constitution

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is  not  to  be  confused  with  ordinary  appellate  power exercised  by  appellate  courts  and  appellate  tribunals under specific statutes. It is a plenary power, ‘exercisable outside the purview of ordinary law’ to meet the pressing demands of justice (See Durga Shankar Mehta v. Thakur Raghuraj Singh (AIR 1954 SC 520). Article 136 of the Constitution  neither  confers  on  anyone  the  right  to invoke the jurisdiction of this Court nor inhibits anyone from  invoking  the  Court’s  jurisdiction.  The  power  is vested in this Court but the right to invoke the Court’s jurisdiction  is  vested  in  no  one.  The  exercise  of  the power  of  this  Court  is  not  circumscribed  by  any limitation as to who may invoke it. Where a judgment of acquittal  by  the  High  Court  has  led  to  a  serious miscarriage  of  justice  this  Court  cannot  refrain  from doing its duty and abstain from interfering on the ground that  a  private  party  and not  the  State  has  invoked  the Court’s jurisdiction. We do not have slightest doubt that we can entertain appeals against judgments of acquittal by the High Court  at  the instance of interested private parties  also.  The  circumstance  that  the  Criminal Procedure  Code,  1973  (in  short  the  “Code”)  does  not provide for an appeal to the High Court against an order of acquittal by a subordinate Court, at the instance of a private  party,  has  no  relevance  to  the  question  of  the power of this Court under Article 136. We may mention that in Mohan Lal v. Ajit Singh (1978 (3) SCC 279) this Court interfered with a judgment of acquittal by the High Court at the instance of a private party. An apprehension was  expressed  that  if  appeals  against  judgments  of acquittal at the instance of private parties are permitted there may be a flood of  appeals.  We do not  share  the apprehension.  Appeals  under  Article  136  of  the Constitution are entertained by special leave granted by this Court, whether it is the State or a private party that invokes the jurisdiction of this Court, and special leave is not granted as a matter of course but only for good and sufficient reasons, well established by the practice of this Court.   

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10. In the  circumstances,  we deem it  proper  to remit the matter  to the

High Court for hearing the cases afresh and dispose them of in accordance

with law.  

11. The appeals are allowed.

  ………………………..J. (Dr. ARIJIT PASAYAT)

………………………..J. (P. SATHASIVAM)

………………………..J. (AFTAB ALAM)

New Delhi, December 2, 2008

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