http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8  

CASE NO.: Appeal (crl.)  463 of 2001

PETITIONER: State of U.P.

RESPONDENT: Punni & Ors.

DATE OF JUDGMENT: 04/01/2008

BENCH: C.K.Thakker Tarun Chatterjee

JUDGMENT: J U D G M E N T

    TARUN CHATTERJEE, J. 1.      This is an appeal against the judgment and order  dated 21st of May, 1999 passed by the learned Judge of  the High Court of Judicature at Allahabad in Criminal  Appeal No.2921 of 1980 whereby the High Court had  allowed the appeal of the accused/respondents and set  aside the judgment and order dated 29th of November,  1980 passed by the Additional Sessions Judge, VIth  Court at Etah in Sessions Trial No.406 of 1978 (State of  U.P. vs. Punni and 5 others) convicting the  accused/respondents of the offences under Sections  399 and 402 of the Indian Penal Code (for short \023the  IPC\024) and sentencing each one of them to undergo  rigorous imprisonment for a period of 4 years and 2  years respectively and further convicting each one of  them under Section 27 of the Arms Act and sentencing  them to undergo rigorous imprisonment for a period of 6  months. However, all the aforesaid sentences were  ordered to run concurrently. 2.      The relevant facts leading to the filing of this  appeal may be narrated, in a nutshell, which are as  follows: - 3.      The case of the prosecution, inter alia, was that on  15th of October, 1977, one Ram Charan Singh, Station  Officer (S.O.) -  Police Station Sikanderpur Vaish,  Assistant Sub-Inspector (A.S.I.) Gaya Prasad along  with constables Bhanwar Singh, Lakhan Singh, Mulaim  Singh, Dina Nath, Jamuna Prasad, Rajendera Singh  and Head Constable Hajari Singh were returning to the  Police Station from the Patrol duty. When they reached  near village Nagla Abdal at about 8 p.m., a reliable  informer notified the S.O. Ram Charan Singh that the  gang of Punni Habda shall assemble in the grove of  Pandit Lakhan Singh of Rani Damer at about 1:00 am  to commit dacoity and would loot Nagla Karan. On  receiving this information, the S.O. and the A.S.I. had  called for two witnesses, namely, Nakdey and Sri Pal  from village Nagla Abdal and also procured their  licenced firearms through Constable Bhanwar Singh.  Thereafter, they came to village Rani Damer wherefrom  witnesses, namely, Ranvir, Ram Prakash, Deo Singh  and Soran were also taken with them. Out of these  witnesses, Ram Prakash (PW 2) was carrying his  licensed gun. Thereafter, all of them came to the  Madha of Pradhan in village Rani Damer where the  witnesses were told the purpose of calling them and the  necessary instructions pertaining to dacoity prevention

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8  

scheme were given. A search was also made on all the  persons present to ensure that none possessed any  illegal weapons. Thereafter, two parties were formed by  the S.O., one in his leadership, which comprised Ram  Prakash (PW 2) and the other in the leadership of Gaya  Prasad, A.S.I. (PW 1). At 11.00 p.m., the two parties  had reached near the grove of Pandit Lakhan Singh.  The party headed by the S.O. positioned themselves on  the north of the grove while the other party positioned  on the east of the grove. While they were waiting there,  some persons entered the grove and started  conversing and smoking Biri and cigarette. One of them  was over heard saying \023Nagla chhota hi hai. Ustad  nahin aaye hain. Darney ki koyee bat nahin hai. Chalo  Chalkar loot lengey.\024 On hearing this conversation, the  S.O. and the witnesses were convinced that the  assembled persons were a gang of dacoits and that  they had assembled there to commit dacoity. The S.O.  then challenged the dacoits telling them that they were  under siege and commanded them to surrender their  weapons, lest they would be done to death. A V.L.P.  shot was fired by the Head Constable, whereupon  these persons started to run away from that site. The  police party arrested 6 persons while 3 managed to  escape. The arrested persons were questioned and  they revealed their names to the police. On search  being taken, one gun       and 8 live cartridges were  recovered from Punni, one Tamancha and 4 live  cartridges were recovered from Munshi, one Tamancha    and 5 live cartridges and one torch were recovered  from Saligram, one Tamancha and 3 live cartridges  were recovered from Sultan, one Bhala and a torch  were recovered from Ram Murti, all without licence, and  a Bamboo lathi was recovered from Ram Bharose. The  empty V.L.P. shot, half burnt pieces of Biris and match  sticks were also collected. The recovery memos were  prepared on the spot and the collected articles were  sealed in separate bundles. Thereafter, the police party  returned to the Police Station alongwith the accused  and the recovered articles. On 16th of October, 1977, a  chik report was prepared in accordance with the  dictation given by the S.O. and a case was registered  under Sections 399 and 402 of the IPC and separate  cases were registered under Sections 25 and 4/25 of  the Arms Act. The investigation was completed and the  charge sheets were prepared and submitted to the  concerned Magistrate who had committed the case to  the Court of Sessions.  4.      The accused/respondents after appearance  pleaded not guilty and claimed to be tried. It was  contended by the accused/respondents that they were  falsely implicated in the case. The witnesses and  Thakurs took Begar from them and when they declined  to comply with their demand, they connived with the  police to implicate them. The witnesses were the Dalals  of the Police and the Police had enmity against them.  The main ground of attack of the accused/respondents  was the non-examination of the S.O., which, according  to them, was fatal. No injuries were caused to the police  party and therefore, the case was not probable. The  respondent, Ram Bharosey, was examined as a  witness and he sought to show that he was not on good  terms with the co-accused Munshi and one Ram  Chadra who was the brother of another co-accused  Ram Murti. In order to show enmity, certified copies of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8  

some police FIRs were submitted by Ram Bharosey.  Thus, it was highly improbable for him to form a gang  with them to commit dacoity. Therefore, according to  the respondents, they were falsely implicated in the  case and they should have been acquitted.  5.      The Additional Sessions Judge, VIth Court at Etah  relying on the evidence of the two witnesses, namely,  PW1 and PW2 and after rejecting the testimony of the  accused Ram Bharosey convicted the six accused for  the offences under Sections 399 & 402 of IPC and  Section 27 of the Arms Act and sentenced them in the  manner indicated herein earlier. Feeling aggrieved by  the said decision of the Additional Sessions Judge, VIth  Court at Etah, an appeal was preferred by the  accused/respondents which, by the impugned order  was allowed and the said judgment of the Additional  Sessions Judge, VIth Court at Etah was set aside. It is  this order of the High Court, which is impugned in this  appeal. 6.      Since this is a case where the High Court  acquitted the accused/respondents thereby setting  aside the order of conviction of the Additional Sessions  Judge, VIth Court at Etah, it would be appropriate to  consider the findings arrived at by the Additional  Sessions Judge, VIth Court at Etah as well as by the  High Court. The Additional Sessions Judge, VIth Court  at Etah convicted the accused/respondents, inter alia,  on the following findings: -  (i)     On each broad and important aspect of  the case, the two witnesses PW 1 and  PW 2 had given cogent evidence  proving the case and that their  testimonies fully answered the test of  credibility.  (ii)    PW 2 Ram Prakash had no reason to  give false evidence against the accused. (iii)   The accused were arrested on the spot  and there was nothing to show that they  were arrested from their houses.  (iv)    The properties were recovered from  their possession and the V.L.P. shot  was fired. (v)     PW 1 and the S.O Ram Charan Singh  were present throughout and the  examination of the S.O. would not have  brought any improvement.  (vi)    The accused had only country lethal  weapons and if their weapons could  not be put to use, the case of the  prosecution could not be thrown out.   (vii)   The accused Ram Bharosey did not  deny the charges after entering the  witness box. (viii)  The defence could not point out any  infirmity in the prosecution case and the  case stood fully proved beyond doubt.  On the aforesaid findings made by the  Additional Sessions Judge, VIth Court at  Etah, the accused/respondents were  convicted under sections 399 and 402 of  the IPC and also under section 27 of the  Arms Act.  The High Court, as mentioned herein earlier, had set  aside the conviction on appeal. While setting aside the  conviction, the High Court, inter alia, recorded the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8  

following findings: - (i)     The S.O.  Ram Charan Singh was not  examined, although the FIR of the case  was dictated by him.  (ii)    The I.O. of the case was also not  examined at the trial. (iii)   None of the adjoining grove holders or land  holders were said to have been present in  the grove at the time of occurrence  although the site plan prepared by the  investigating officer shows that the grove  of Lakhan Singh was surrounded on three  sides by groves.  (iv)    The accused/respondents were said to  have been caught on the spot without any  resistance or struggle on their part.     (v)     There were discrepancies in the  examination-in-chief and cross  examination of PW 1 as to the time of his  departure from the police station and also  as to the fact of his leaving the station with  SO Ram Charan Singh.  (vi)    There were contradictions in the testimony  of PW 1 and the FIR as to the fact of their  leaving the police station alone or with  others.  (vii)   The S.O. had claimed in the FIR that an  informer had given the information that  dacoity would be committed in Nagla  Karan at 3 am but PW 1 did not testify to  the giving of any such information by the  informer. (viii)  There were contradictions in the cross  examination of PW 1 and the medical  evidence as to the fact of receiving of  danda blows on the body of the accused.  (ix) There appeared substance in the defence  plea that the accused Ram Bharosey could not  have joined hands with Munshi and Ram Murti  for committing dacoity on account of their  enmity. The High Court thus concluded that all these  circumstances tended to show that the accused had  been bundled together by the police and implicated in  the case of assembly and preparation to commit  dacoity. 7.      Before we consider whether the High Court was  justified in reversing the order of conviction of the  Additional Sessions Judge, VIth Court at Etah, and  passing an order of acquittal in appeal, we may briefly  highlight the issues raised before us. The Learned  Counsel for the appellant argued that the High Court  had erred in taking the adverse view on account of non- examination of the I.O. when the A.S.I. Gaya Prasad  had adduced the entire sequence of events in a natural  and convincing manner. He also sought to argue that  the reasons of acquittal recorded by the High Court  were erroneous and against the weight of the evidence  proved on record. On the other hand, the learned  counsel for the accused/respondents sought to argue  that the High Court, while acquitting the accused and  reversing the judgment of the Additional Sessions  Judge, VIth Court at Etah, who convicted them, had  taken into consideration all the aspects of the matter  and the evidence on record and came to a conclusion

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8  

that the judgment of the Additional Sessions Judge  could not be accepted, after giving proper and cogent  reasons for the same. Accordingly, the learned counsel  for the accused/respondents sought for dismissal of the  appeal by this Court.  8.      Having heard the learned counsel for the parties  and after examining the submissions made by them  and also the judgment of the High Court as well as of  the Additional Sessions Judge, VIth Court at Etah and  the other materials on record, including the findings and  the reasoning given by the Additional Sessions Judge  as well as the High Court, we do not find any ground to  hold that the High Court was not justified in setting  aside the order of conviction and passing an order of  acquittal in appeal. While doing so, the High Court had  given due reasons after considering the entire materials  and the evidence on record and had also given the  reasons as to why the non-examination of the S.O. and  the I.O. was fatal in the facts and circumstances of the  case. In our view, the High Court was justified in  holding that it was necessary for the prosecution to  prove the case made out under Section 399 and 402 of  the IPC beyond reasonable doubt and to examine the  S.O. and the I.O. for unfolding the prosecution story.  The High Court had also given its reasons, in our view,  correctly, that the evidence of PW 1 and PW 2 on  which, strong reliance was placed by the Additional  Sessions Judge in order to pass an order of conviction  could not be relied upon. On the question of non- examination of the S.O. and the I.O., which led to an  adverse inference being drawn by the High Court  against the prosecution, the fact that the same was fatal  would also be clear from a decision of this court in the  case of Habeeb Mohammad vs. State of Hyderabad  [AIR 1954 SC 51] in which this Court at paragraph 11  observed as follows: -  "It is said that the state of things above  described arose because of a supposed  obligation on the prosecution to call every  available witness on the principle laid down in  such a case as Ram Ranjan Roy v. Emperor  (I.L.R. 42 Ca. 422.), to the effect that all  available eye-witnesses should be called by  the prosecution even though, as in the case  cited, their names were on the list of defense  witnesses. Their Lordships do not desire to  lay down any rules to fetter discretion on a  matter such as this which is so dependent on  the particular circumstances of each case.  Still less do they desire to discourage the  utmost candour and fairness on the part of  those conducting prosecutions; but at the  same time they cannot, speaking generally,  approve of an idea that a prosecution must  call witnesses irrespective of considerations  of number and of reliability, or that a  prosecution ought to discharge the functions  both of prosecution and defense. If it does so  confusion is very apt to result, and never is it  more likely to result than if the prosecution  calls witnesses and then proceeds almost  automatically to discredit them by cross- examination. Witnesses essential to the  unfolding of the narrative on which the  prosecution is based, must, of course, be

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8  

called by the prosecution, whether in the  result the effect of their testimony is for or  against the case for the prosecution."  9.      Relying on the aforesaid observations of this  Court in the above-mentioned case, we, therefore,  agree with the findings and the reasoning of the High  Court, while setting aside the order of conviction, on the  question of non-examination of the S.O., who was the  architect of the facts of the case. In Ram Prasad & Ors.  Vs. State of U.P. [1974 (3) SCC 388], this court has  held that in case the court finds that the prosecution  has not examined the witnesses for reasons not tenable  or not proper, the court would be justified in drawing an  adverse inference against the prosecution. In view of  the non-examination of the S.O. and the I.O. and also in  view of the glaring discrepancies pointed out by the  High Court in its judgment, as noted herein earlier, we  are, therefore, in agreement with the High Court that in  the facts and circumstances of the present case and on  the evidence on record, the order of acquittal was  reasonably possible to arrive at and that being the  position, we do not find any reason to interfere with the  judgment of acquittal in the exercise of our jurisdiction  under Article 136 of the Constitution. At the risk of  repetition, we may also reiterate that the High Court,  after consideration of all the evidence and materials on  record had come to a conclusion of fact that the  prosecution story as made out to convict the  accused/respondents under Sections 399 and 402 of  the IPC could not at all be believed and therefore, the  order of conviction of the Additional Sessions Judge,  VIth Court at Etah was needed to be interfered with.  There is one further aspect of this matter. In our view,  the High Court was justified in drawing an adverse  inference against the prosecution as it had failed to  examine the adjoining grove holders or land holders  who were said to have been present in the grove at the  time of occurrence. That apart, it was rightly pointed out  by the High Court that adverse inference ought to have  been drawn against the prosecution as admittedly, the  persons who were caught on the spot were caught  without any resistance or struggle from their side. From  the judgment of the High Court, it is also evident that  the High Court had found discrepancies in the  examination-in-chief and the cross-examination of PW  1 as to the time of his departure from the Police station  and also as to the fact of his leaving the station with the  S.O., Ram Charan Singh. At this stage, we may further  reiterate that the Additional Sessions Judge, VIth Court  at Etah, while convicting the accused/respondents had  practically relied on the evidence of PW 1, whose  evidence, in fact, was rightly not accepted by the High  Court in view of the discrepancies found in his  evidence. Finally, in our view, the High Court, while  reversing the order of conviction, had also noted other  contradictions viz., vii, viii and ix, as noted herein  earlier, which, in our view, are material contradictions  which would lead to acquitting the  accused/respondents.  10.     Before we part with our discussion on the  findings of the High Court while setting aside the order  of conviction of the Additional Sessions Judge, VIth  Court at Etah, we may note that reliance was placed at  the bar on the case of Kashiram and others Vs. State of  M.P. [(2002) 1 SCC 71]. In that decision, this court

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8  

while considering the power of the High Court to  interfere with an order of acquittal of the trial court held  that when two views are possible, the High Court  should not interfere only because it feels that sitting as  a trial court, it would have preferred conviction and that  the High Court should consider every reason given by  the trial court in favour of an acquittal and then dislodge  them. It was also held in that decision that while  deciding an appeal against an order of acquittal, the  High Court can reappraise the evidence, arrive at  findings at variance with those recorded by the trial  court in its order of acquittal and arrive at its own  findings, yet, the salutary principle, which would guide  the High Court is \026 if two views    are reasonably  possible, one supporting the acquittal and the other  recording a conviction, the High Court would not  interfere merely because it feels that sitting as a trial  court, its view would have been one of recording a  conviction. It was further held in that decision that as a  necessary corollary, it was obligatory on the High Court,  while reversing an order of acquittal, to consider and  discuss each of the reasons given by the trial court to  acquit the accused and then to dislodge those reasons  and if the High Court failed to discharge this obligation,  it would constitute a serious infirmity in the judgment of  the High Court. Reliance was also placed on the  decision of this court in Kunju Muhammed alias  Khumani and another Vs. State of Kerala [(2004) 9  SCC 193] wherein this court has held that the judgment  of the trial court acquitting the accused cannot be  reversed by the High Court when the findings of the trial  court were neither perverse nor they could not be  reached by a reasonable person and the view taken by  the trial court was the only possible view. However, in  the present case, we are not concerned with the  situation, which had arisen in the aforesaid two  decisions. In this case, the Additional Sessions Judge,  VIth Court at Etah, convicted the accused/respondents  and such order of conviction was set aside in appeal by  the High Court. Therefore, in our view, the principles  laid down in the aforesaid decisions are not applicable  to the facts of the present case although, from the  aforesaid two decisions, it is at least clear that while  dealing with an appeal under Section 378 and 386 of  the Code of Criminal Procedure, the salutary principle  which would guide the High Court is \026 if two views are  reasonably possible, one supporting the acquittal and  the other recording a conviction, the High Court would  not interfere merely because it feels that sitting as a trial  court, its view would have been one of recording a  conviction. It was, however, made clear in the aforesaid  decisions by this court that the High Court while hearing  an appeal against an acquittal has powers as wide and  comprehensive as in an appeal against a conviction  and while exercising its appellate jurisdiction, the High  Court can reappraise the evidence, arrive at findings at  variance with those recorded by the trial court in its  order of acquittal and arrive at its own findings.         11.     In any view of the matter, we are of the view  that this Court, while dealing with the order of acquittal  of the High Court, would not ordinarily interfere with the  findings of the High Court unless it is satisfied that such  finding is vitiated by some glaring infirmity in the  appraisement of evidence or such finding was perverse  or arbitrary. (See State of U.P. vs. Harihar Bux Singh

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8  

[AIR 1974 SC 1890]. In State of Punjab vs. Ajaib Singh  [(1995) 2 SCC 486], this Court, on the same lines, held  that if the order of acquittal was not perverse or  palpably erroneous, this Court would not interfere with  such finding of the High Court acquitting the  accused/respondents from the offences charged  against them. While considering the scope of Article  136 of the Constitution as to when this Court is entitled  to interfere with an order of acquittal, this court  observed in State of U.P. vs. Babul Nath [(1994) 6 SCC  29] as follows :  \023At the very outset we may mention that in an  appeal under Article 136 of the Constitution  this Court does not normally reappraise the  evidence by itself and go into the question of  credibility of the witnesses and the  assessment of the evidence by the High Court  is accepted by the Supreme Court as final  unless, of course, the appreciation of evidence  and finding is vitiated by any error of law of  procedure or found contrary to the principles of  natural justice, errors of record and misreading  of the evidence, or where the conclusions of  the High Court are manifestly perverse and  unsupportable from the evidence on record.\024

    In view of our discussions made herein above, we  do not find any ground to interfere with the decision of  the High Court, which on consideration of all the  materials on record and the evidence adduced by the  parties had acquitted the accused/respondents and  therefore, no interference is warranted in the exercise  of our power under Article 136 of the Constitution. 12.     For the reasons aforesaid, we do not find any  reason to interfere with the judgment of the High Court  acquitting the accused/respondents. The appeal is thus  dismissed. There will be no order as to costs.