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CASE NO.: Appeal (crl.)  2032-33 of 1996

PETITIONER: Ramakant Rai                                             

RESPONDENT: Madan Rai and Ors.                                       

DATE OF JUDGMENT: 26/09/2003

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT: J U D G M E N T

WITH

CRIMINAL APPEAL NOS. 611-612/1997

ARIJIT PASAYAT,J

                One Jairam (hereinafter referred to as the ’deceased’) was in his  early teens when he lost his life in an unfortunate dispute where his  relatives were the warring parties. There were originally 4 accused  persons namely, Madan Rai (A-1), Rasbehari (A-2), Sachidanand Rai (A-3)  and Janardan Rai (A-4). Accused-Madan Rai is the father of Sachidanand  and Rasbehari. Accused-Madan Rai was charged for commission of offence  punishable under Section 302 of the Indian Penal Code, 1860 (in short  the ’IPC’) for committing the murder of deceased and other three were  charged by application of Section 302 read with Section 34 of IPC. All  the four accused persons were also charged in terms of Section 440 IPC  for committing mischief having made preparation to cause hurt.  

       The date of occurrence is 11.5.1984. The dispute arose over fixing  a door by Ramakant (appellant in Crl.A.Nos.2032-33/96). By infliction of  a gunshot injury the deceased breathed his last on 12.5.1984. According  to Siyaram (PW-1) the informant, the incident which took life of the  deceased was the result of long-standing dispute over properties. There  was a private partition between the deceased’s father and his offsprings  and accused-Madan Rai a few years before the occurrence. Madan Rai  wanted to take northern room out of the rooms in which cattles were  tethered and which was falling to share of Siyaram, the informant.   Though the door of this room had been removed earlier, the informant  wanted to close the door by constructing a mud wall. On the date of  occurrence at about 6.30 p.m. the accused-Madan Rai came with his  licensed gun to the spot of occurrence with his sons Sachidanand,  Rasbehari and Janardan. Three of them were armed with lathis. They  started demolishing the walls. The present appellant-Ramakant Rai and  Siyaram and deceased requested them not to do so. Madan Rai took out his  gun and fired one shot. Sound of such gun fire attracted notice of many  including Bashisht Pandey (PW2), Bhimnath Rai (PW5)and many other  villagers who came to his house, particularly, to the room to find out  what has happened. The informant, the deceased and others came to the  room where informant’s cattles were tethered. Accused-Madan Rai climbed  on the roof to the western corner of the house with his gun. Deceased  was at the door of the room which was towards north-west of his house.  Madan Rai fired one gun shot which resulted in injuries on the face of  the deceased who fell down. According to the informant the ghastly

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incident was witnessed by Bashisht Pandey (PW2), Bhimnath Rai (PW5) and  the neighbourers. As the condition of the deceased deteriorated, he was  taken in a tractor to the hospital at Mohammadbad, information was  lodged at the police station, and investigation was undertaken. On  completion of the investigation, charge sheet was placed.

       Considering the evidence on record the Trial Court found accused- Madan Rai guilty and sentenced him to imprisonment for life for the  offence relatable to under Section 302 IPC and for the offence  punishable under Section 440 IPC imprisonment for term of two years with  a fine of Rs.500/- was imposed. Other three accused were acquitted of  charges under Section 302 read with Section 34 IPC.  However, they were  held guilty in relation to Section 440 IPC. The convicted accused  persons filed an appeal before the Allahabad High Court which by the  impugned judgment found the prosecution version to be wanting  incredibility and adequacy and directed acquittal. State’s appeal  against acquittal of three was rejected.  

       According to the High Court, there was manipulation so far as the  time of occurrence in the FIR is concerned. Originally, the same appears  to have been written at 7.30 p.m. and subsequently corrected to 6.30  p.m., obviously, with a view to make visibility and identification  possible.  There was no motive to kill the young boy, as the accepted  position seemed to be that notwithstanding the difference there was no  sufficient reason as to why the innocent boy should be killed. It was  also concluded that since there was only one gunshot, the question of  so-called eyewitnesses rushing to the spot on hearing the sound appeared  incredible. The distance from which the bullet was fired appeared to be  differently stated and there was apparent contradiction in the evidence  of doctor who conducted the post mortem and the doctor who examined the  deceased immediately after he had suffered the injuries. While Dr.  Chander Bhan Tripathi (PW-4) who conducted the post-mortem examination  indicated the distance to be greater, doctor (PW-3) who examined the  deceased noticed some blackening and tattooing which indicated that the  gun shot was fired from a very close range. After making casual  reference to the evidence it was concluded that on the overall  appreciation of evidence contradictory statement of affairs about the  injuries and the ocular testimonies, time of lodging of FIR throws grave  doubt in the prosecution case. It was, therefore, concluded that place  of occurrence as said to have taken place and stated in Court is not  correct version of the incident and the prosecution has not come with  clean and correct case. With these findings, the judgment of conviction  and sentence was set aside and one of acquittal was put in its place.  

       The father of the deceased, Ramakant Rai has filed Criminal  Appeals Nos. 2032-33/96. The State of Uttar Pradesh has filed Criminal  Appeal Nos.611-612/1997 restricting the challenge to the acquittal of  Rasbehari, Sachidanand and Janardan but there is no challenge to the  acquittal of Madan Rai, the prime accused according to the prosecution.  

       Learned counsel for the appellant Ramakant Rai submitted that the  conclusions of the High Court are without any basis and the judgment is  practically un-reasoned and conclusions cannot be substitute for  reasons. Referring to the number of shots it is submitted that the  evidence of the witnesses clearly spoke of two gunshots. This was also  noticed by the trial Court. Unfortunately, the High Court proceeded on  the presumption as if there was only one gunshot. In reality there was  one gunshot, which hit the deceased. But the clear and cogent evidence  was to the effect that one shot was fired first and after some time the  second shot was fired which proved to be fatal. The High Court has  attached unnecessary importance to the correction made in the FIR about  the time of occurrence. There was no material and no finding has been  recorded that initially some timing was given which was subsequently  changed. It is not the case of the defence that at first 7.30 p.m. which  was written in the FIR was subsequently changed to 6.30 p.m. in another

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document. As has been explained by the informant the correction was made  before the first FIR was handed over. To say that the timing was changed  after deliberation would not be a proper approach. According to the  informant by tremor of hand it was so written and immediately corrected  and to discard the prosecution case on the conjectures and surmises that  the timing was changed after deliberation is indefensible. Even if it is  conceded that there was a correction made that was obviously made before  the FIR was handed over and mere correction cannot be viewed with  suspicion as has been done by the High Court.  

       Dr. Sudhakar Dube (PW-3) has clarified as to why he had stated  about blackening. The evidence was to the effect that when he examined  the injured there was no electric light and he had to make the  examination with the help of lantern and, therefore, the confusion  arose. In view of this specific clarification, it was not appropriate  for the High Court to conclude that the post mortem report was to be  discarded.  The trial Court had dealt with such pleas of the accused  persons elaborately and had indicated the reasons as to why they were  not acceptable. The High Court without even discussing the evidence  elaborately concluded to the contrary. Evidence of PWs 2 and 5 who are  independent witnesses has been discarded even without analyzing of their  evidence.  

       In response, learned counsel for the acquitted accused persons  submitted that the special leave petition at the instance of the father  of the deceased was not competent. Though he claimed to be eyewitness,  he was not examined by the prosecution. The reasoning indicated by the  Trial Court that he may have shown compassion to his close relative   having lost the son is contradicted by the very fact that he has chosen  to file Special leave petition.  

       With reference to evidence of doctors it was submitted that nature  of gunshots wounds shows that the firing was from a close range. Had the  situation been otherwise, the injuries could not have been of oval  shape, when the prosecution version is that the accused was firing from  a height. The nature of the injuries sustained clearly rule out any gun  being fired by the accused Madan Rai. Neither any gun nor any bullet was  produced which dents the prosecution version irretrievably. The absence  of ballistic expert’s report corrodes credibility of prosecution  version.

       Considering the distance from which PWs 2 and 5 claimed to have  come, it is highly improbable that they would have seen the occurrence  as claimed. The timing of incident was first correctly reflected and  probably in the course of writing down the first FIR it was noticed that  visibility would be poor and identification improbable and that is why  the change was made. Even if it was done before the report was lodged it  throws great doubt about the correct presentation of the factual  scenario. Though the High Court has not spelt out the reasons to  buttress the conclusions that is not fatal to the ultimate conclusions  as the material on record would justify the conclusions and the  correctness thereof.  

       Learned counsel for the State of U.P. submitted that though the  State has not specifically challenged the acquittal of Madan Rai, on a  bare reading of the High Court’s judgment it is clear that the same  cannot be maintained. Additionally, it is submitted that both the trial  Court and the High Court have erroneously concluded that Section 440 IPC  was not made out against accused 2, 3 and 4.  

       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

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under Article 136 of the Constitution 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,  on well established by the practice of this Court.                            Above was the view expressed by this Court in Arunachalam v.  P.S.R. Sadhanantham and Anr. (1979 (2) SCC 279). The view has again been  reiterated by the Constitution Bench in P.S.R. Sadhanantham v.  Arunachalam and Anr. (1980 (3) SCC 141).

       It is to be seen whether the broad spectrum spread out of Article  136 fills the bill from the point of view of "procedure established by  law". In express terms, Article 136 does not confer a right of appeal  on a party as such but it confers a wide discretionary power on this  Court to interfere in suitable cases. The discretionary dimension is  considerable but that relates to the power of the Court. Article 136 is  a special jurisdiction. It is residuary power; it is extraordinary in  its amplitude, its limits, when it chases injustice, is the sky itself.  This Court functionally fulfils itself by reaching out to injustice  wherever it is and this power is largely derived in the common run of  cases from Article 136. Is it merely a power in the court to be  exercised in any manner it fancies? Is there no procedural limitation in  the manner of exercise and the occasion for exercise? Is there no duty  to act fairly while hearing a case under Article 136, either in the  matter of grant of leave or, after such grant, in the final disposal of  the appeal? There cannot be even a shadow of doubt that there is a  procedure necessarily implicit in the power vested in this Court. The  founding fathers unarguably intended in the very terms of Article 136  that it shall be exercised by the judges of the highest Court of the  land with scrupulous adherence to settled judicial principles, well  established by precedents in our jurisprudence. Judicial discretion is  canalized authority not arbitrary eccentricity. Cardozo, with elegant  accuracy, has observed:

       "The judge, even when he is free, is still not  wholly free. He is not to innovate at pleasure. He is  not a knight-errant roaming at will in pursuit of his  own ideal of beauty or of goodness. He is to draw his

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inspiration from consecrated principles. He is not to  yield to spasmodic sentiment, to vague and  unregulated benevolence. He is to exercise a  discretion informed by tradition, methodized by  analogy, disciplined by system, and subordinated to  ’the primordial necessity of order in the social  life’. Wide enough in all conscience is the field of  discretion that remains".

       It is manifest that Article 136 is of composite structure, is  power-cum-procedure - power in that it vests jurisdiction in this Court  and procedure in that it spells a mode of hearing. It obligates the  exercise of judicial discretion and the mode of hearing so  characteristic of the court process.  

       Coming to the appeals before us we find that State has not  challenged the acquittal of accused Madan Rai. That being the position  and in view of what has been stated in Arunachalam’s case (supra) and  Sadhanantham’s case (supra) the special leave petition filed by Ramakant  Rai is clearly maintainable.  

       It was submitted that when two views are possible and the High  Court with well-chiselled conclusions has accepted a view it would not  be proper to exercise jurisdiction under Article 136 of the  Constitution. Arguments are not substitutes for reasoning. More so when  the appellate court upsets conclusions of lower court. A party is not  permitted to say that the arguments are what the Court intended to  accept or to convey. When the appellate Court concurs with the views of  the Trial Court the necessity for elaborately dealing with various  aspects may not always be necessary. But when a view contrary to that of  the lower court is expressed, it is imperative that reasons therefor  should be clearly indicated. There is no scope for any departure from  this basic requirement. Therefore, the plea of the accused-respondents  that even though the judgment of the High Court is not very elaborately  reasoned, yet it can be supplemented by arguments is a fallacious one.

It is also noticed that the High Court did not correctly  appreciate the facts. First and foremost it proceeded on the basis as if  there was only one gunshot. In fact the evidence on record clearly shows  that there were two gunshots and only one of them was a fatal one.  

       The evidence of PWs 2 and 5 have been lightly brushed aside with  presumptuous conclusion that they could not probably have come from  their houses and since there was only one gunshot. On that score alone  the High Court’s conclusions suffer from vulnerability. The High Court  also proceeded as if the change in timing indicated in the FIR was  subsequently done. There is no material to support this conclusion. Here  again, High Court acted without any material to support its conclusions.  The Investigating officer (PW-6) was also not even asked as to when the  change was made. On the contrary, reading of PW-1’s evidence shows that  it was done before the report was handed over to the police.   

The High Court also came to erroneous conclusion that there was  variance between the evidence of PWs 3 and 4. It clearly overlooked the  explanation offered by PW-3 as to why he had mentioned about blackening.  He has stated that examination at the first instance was done in  inadequate light with the help of lantern. Therefore, he accepted that  there was a possibility of mistake in what he recorded about the  blackening. When one compares his evidence with that of PW-4 the  position is clear. PW-4 has not really noticed any blackening or  tattooing. Without considering the evidence of PW-3 in its proper  perspective the High Court should not have abruptly concluded that there  was a difference in the evidence of PWs 3 and 4 and accused is to get  the benefit therefor. In fact a combined reading of the evidence of PWs  3 and 4 shows that PW-4’s version was more authentic and acceptable.

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       Much emphasis has been laid about the nature of injury. The  hypothetical answers given by the doctors cannot corrode credibility of  eyewitnesses. Significantly, no question was put to PWs 3 and 4 as to  the position from where the accused could have made the gunshot.  

       It is trite that where the eyewitnesses’ account is found credible  and trustworthy, medical opinion pointing to alternative possibilities  is not accepted as conclusive.  Witnesses, as Bantham said, are the eyes  and ears of justice.  Hence the importance and primacy of the quality of  the trial process.  Eyewitnesses’ account would require a careful  independent assessment and evaluation for their credibility which should  not be adversely prejudged making any other evidence, including medical  evidence, as the sole touchstone for the test of such credibility.  The  evidence must be tested for its inherent consistency and the inherent  probability of the story; consistency with the account of other  witnesses held to be credit-worthy; consistency with the undisputed  facts the ’credit’ of the witnesses; their performance in the witness- box; their power of observation etc.  Then the probative value of such  evidence becomes eligible to be put into the scales for a cumulative  evaluation.   

       A person has, no doubt, a profound right not to be convicted of an  offence which is not established by the evidential standard of proof  beyond reasonable doubt.  Though this standard is a higher standard,  there is, however, no absolute standard. What degree of probability  amounts to ’proof’ is an exercise particular to each case. Referring to  of probability amounts to ’proof’ is an exercise the inter-dependence of  evidence and the confirmation of one piece of evidence by another a  learned author says: (See "The Mathematics of Proof II": Glanville  Williams: Criminal Law Review, 1979, by Sweet and Maxwell, p.340(342).

       "The simple multiplication rule does not apply  if the separate pieces of evidence are dependent.   Two events are dependent when they tend to occur  together, and the evidence of such events may also be  said to be dependent. In a criminal case, different  pieces of evidence directed to establishing that the  defendant did the prohibit act with the specified  state of mind are generally dependent.  A juror may  feel doubt whether to credit an alleged confession,  and doubt whether to infer guilt from the fact that  the defendant fled from justice.  But since it is  generally guilty rather than innocent people who make  confessions, and guilty rather than innocent people  who run away, the two doubts are not to be multiplied  together. The one piece of evidence may confirm the  other".

Doubts would be called reasonable if they are free from a zest for  abstract speculation.  Law cannot afford any favourite other than truth.   To constitute reasonable doubt, it must be free from an over emotional  response.  Doubts must be actual and substantial doubts as to the guilt  of the accused persons arising from the evidence, or from the lack of  it, as opposed to mere vague apprehensions. A reasonable doubt is not an  imaginary, trivial or a merely possible doubt; but a fair doubt based  upon reason and common-sense.  It must grow out of the evidence in the  case.

       The concepts of probability, and the degrees of it, cannot  obviously be expressed in terms of units to be mathematically enumerated  as to how many of such units constitute proof beyond reasonable doubt.   There is an unmistakable subjective element in the evaluation of the  degrees of probability and the quantum of proof.  Forensic probability

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must, in the last analysis, rest on a robust common sense and,  ultimately, on the trained intuitions of the judge.  While the  protection given by the criminal process to the accused persons is not  to be eroded, at the same time, uninformed legitimization of  trivialities would make a mockery of administration of criminal justice.  This position was illuminatingly stated by Venkatachalia, J(as His  Lordship then was) in State of U.P. v. Krishna Gopal and Anr. (AIR 1988  SC 2154).

As was noted by this Court in Gurcharan Singh and Anr. v. State  of Punjab (AIR 1963 SC 340) non-examination of the ballistic report does  not render direct evidence improbable.  

       In view of the unsatisfactory nature of disposal of the appeal and  the inherent improbabilities and incongruities in the conclusions, the  unreasoned impugned judgment of the High Court warrants reversal. So far  as accused-Madan Lal is concerned, his conviction under Section 302 IPC  as done by the Trial Court is restored. So far as acquittal of other  accused persons under Section 302 read with Section 34 is concerned, the  Trial Court had elaborately dealt with the evidence to extend benefit of  doubt to them. The High Court did not interfere in the State’s appeal so  far as their acquittal is concerned. Nothing could be shown to us as to  why the conclusions are to be reversed and in what way they are  fallacious.                   Coming to the appeal filed by the State and the challenge of  Ramakant Rai to the acquittal of accused respondents Sachidanand,  Rasbehari and Janardan under Section 440 IPC, for which two years  imprisonment was imposed, is concerned the High Court’s judgment is  reversed. The respondents Sachidanand, Rasbehari and Janardan were  rightly convicted by the Trial Court under Section 440 IPC along with  accused Madan Rai. The sentence of two years rigorous imprisonment and a  fine of Rs.500/- as imposed can be in no way termed to be excessive to  warrant a different sentence.  

In the ultimate result, the judgment of the Trial Court is  restored and that of the High Court is set aside. The respondents shall  surrender to custody to serve the remainder of the sentence, if any, to  be served.

       The appeals are allowed.