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PETITIONER: BABU RAM AND OTHERS

       Vs.

RESPONDENT: STATE OF UTTAR PRADESH

DATE OF JUDGMENT01/02/1983

BENCH: MISRA, R.B. (J) BENCH: MISRA, R.B. (J) VENKATARAMIAH, E.S. (J)

CITATION:  1983 AIR  308            1983 SCR  (2) 328  1983 SCC  (2)  21        1983 SCALE  (1)105

ACT:      Appeal  against   acquittal-Interference  by  the  High Court-If two  views  about  a  particular  circumstance  are possible,  interference   by  the   High  Court   with   the conclusions  arrived   at  by  the  Sessions  Court  is  not permissible  unless   the  conclusions  were  not  possible- Criminal Procedure  Code, 1973,  Section 378-Evidence Act (1 of  1872),  Section  3-Appreciation  of  evidence-  Criminal trial-Circumstantial evidence-Powers  of the  Supreme  Court (Enlargement  of   Criminal  Appellate   Jurisdiction)  Act, Section 2.

HEADNOTE:      In the  State appeal against acquittal, appellant Babu, his father  Munna and  Tulaiyan were  convicted by  the High Court of Allahabad and sentenced to life imprisonment.      The  prosecution   case  as   unfolded  in   the  First Information Report  and the  evidence is that Dhani Ram, the deceased who  was living  with his  father-in-law in village Euretha came  on 7th  of October  1969 to  tho house  of his father Ajudhya  in village  Therro  for  getting  his  lands ploughed. On  the 8th October 1969 at about 9 A.M., he along with his  father left village Therro for village Kurotha for getting seeds  from one of Dhani Ram’s friends. When the two reached the  field of  Malkhan which  is said to be near the temple of  Ram Kund, the appellants came out from inside the Jhunri field  of Malkhan  and started beating Dhani Ram with lathis. While  Tulaiyan, appellant  No.  3  caught  hold  of Ajudhya and  prevented him  from having  his son  Dhani  Ram rescued, the  other two  continued  to  beat  him  to  death pursuant to  the F.I.R.  filed at  S.30 p.m.  at the  police station which  was about  12 miles  away, Sub Inspector Prem Narain reached  the spot at 3 A.M. on 9th October, found the dead body  of Dhani  Ram Iying  between the fields of Halkha and Malkhan,  sent it for postmortem and after investigation filed the chargesheet.      The  prosecution   produced  three   witnesses-Ajudhya, father of  deceased as  PW 1, Arjun PW 2 and Kashi Ram PW 3, both PW  2 and PW 3 being neighbours of PW I and of the same caste. to  prove the  case along with the post mortem report which showed  the stomach  and bladder of the deceased empty and the large intestine with faceal matter

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    All the appellants entered a plea of non-guilty. Babu’s defence was  that the case was foisted against him as he had earlier on 17th of July 1969 329 filed a  complaint under  section 498  I.P.C. against  Dhani Ram, his brother  Ghurka, their maternal uncle Halka and one Ram Charan  for enticing Babu’s wife away. Tulaiyan took tho plea that  he was  being implicated  as he  was one  of  the witnesses in the earlier case under section 498 I.P.C.      On appraisal of evidence the Sessions Judge came to the conclusion that the evidence produced by the prosecution was too feeble  to base  any conviction  on that. In his opinion there was  no motive  on the part of the appellants, and the witnesses could  not be said to be independent and they were mere chance witnesses. Ho further found that tho probability of Dhani  Ram being attacked while it was dark before he had evacuated or  takeon his  breakfast could  not be weeded out and in all probability the occurrence had taken place not at tho place  alleged by  the Prosecution. On those findings he acquitted all the accused.      On appeal,  however, the High Court set aside the order of acquittal  and convicted the appellants under section 302 road with  section 34  I.P.C. and  sentenced each of them to undergo  imprisonment  for  life.  Hence  tho  appeal  under section 2  of the  Supreme Court  (Enlargomont  of  Criminal Appellate Jurisdiction) Act 1971.      Allowing tho appeal, the Court D ^      HELD:  1:1  The  appellate  court  should  be  slow  in disturbing the finding of fact of the trial court and if two views are  reasonably  pos4sible  of  the  evidence  on  the record, it should not interfere simply because it feels that it would  have taken  a different  view if the case bad been tried by  it, because  the trial  judge has the advantage of seeing and hearing the witnesses and the initial presumption of innocence in favour of the accused is not weakened by his acquittal. [335 P-G]      State of  U.P. v.  Samman Dass,  [1972]  3  S.C.R.  58, followed.      1:2 In  the instant  cases a  perusal of  tho  evidence produced and  the two  judgments of the courts below make it clear that  tho conclusions arrived at by the Sessions court were fully  justified and  should not  have been lightly set aside by  the High  Court.  The  cumulative  effect  of  the various circumstances  in the  opinion of the Sessions Judge did throw  doubt on  the prosecution case and if the learned Sessions Judge in the circumstances did not think it safe to rely  upon   the  evidence   produced  on   behalf  of   the Prosecution, he  committed no error either as to the time of occurrence or the venue of the occurrence, or the motive for murder, or the motive of PW 1 to implicate tho appellants by treating  the   witnesses  as   interested   and/or   chance witnesses. [336 D-E, 334 B-C]

JUDGMENT:      CRIMINAL APPELLATP JURISDICTION: Criminal Appeal No. 25 of 1976.      From the  Judgment and  order dated  the 17th September 1975 ’  of the Allahabad High Court in Government Appeal No. 163 of 1971. 330      S.K. Mehta and M.K. Dua for the Appellant.      Dalveer Bhandari, H.M. Singh and Ranbir Singh Yadav for

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the Respondent.      The Judgment of the Court was delivered by      MISRA, J.  The present appeal under s. 2 of the Supreme Court (Enlargement  of Criminal  Appellate Jurisdiction) Act is directed  against the  judgment  of  the  High  Court  of Allahabad dated 17th September, 1975 setting aside the order of acquittal passed by the Sessions Judge and convicting the appellants under  s. 302  read with s. 34 IPC and sentencing therm to undergo imprisonment for life.      It appears  that wife of Babu, appellant No. 1 had been enticed away.  He, therefore,  filed a  complaint on 17th of July, 1969  against Dhani  Ram, the  deceased,  his  brother Ghurka, their  maternal uncle Halka and one Ram Charan under s. 498  IPC. The prosecution n case as unfolded in the first information report  and the  evidence  is  that  Dhani  Ram, deceased, used  to live at the house of his father-in-law in village Kuretha.  On 7th  of October,  1969 he  came to  the house of  his father  Ajudhya in  village Therro for getting his lands  ploughed. Next  day at about 9 A.M. he along with his father  left village  Therro for  village  Kuretha.  His father was  going there  for getting seeds from one of Dhani Ram’s friends.  When the  two reached  the field of Malkhan, which is  said to  be near the temple of Ram Kund, the three accused came out from inside the jhunri field of Malkhan and started beating  Dhani Ram  with lathis. Tulaiyan, appellant No. 3  caught hold  of Ajudhya,  the father of Dhani Ram and prevented him  from having  his son  rescued. The  other two continued beating  Dhani Ram to death. The first information report was  lodged at  the police  station at  a distance of about 12  miles at  5-30 P.M. by Ajudhya. Sub-Inspector Prem Narain reached  the spot  at 3 A.M. On 9th October. He found the dead  body of  Dhani Ram  lying on  the way  between the fields of  Halka and Malkhan. He prepared the challan of the dead body and a letter for postmortem and sent the dead body for postmortem.  Thereafter he  investigated  the  case  and submitted the chargesheet against the three appellants.      The accused  denied the charge. Babu said that the case was start  ed against  him as he had filed a complaint under s. 498  IPC against  Halka and three others. Tulaiyan in his defence said that he had 331 been implicated as he was a witness for Babu in the criminal case A under s. 498 IPC.      According to  the doctor, who conducted the postmortem, the  death  had  taken.  place  at  about  48  hours  before postmortem. He,  however, admitted  that there  could  be  a difference of  two to  four hours either way in the duration given by  him. Postmortem  report  showed  the  stomach  and bladder of  Dhani Ram  empty. There  was  faecal  matter  at places in  the large intestine. There was also faecal matter stuck to the addah dhoti which Dhani Ram was wearing.      The prosecution  produced three  witnesses to prove its case. On  appraisal of  evidence the  Sessions Judge came to the conclusion that the evidence produced by the prosecution was too  feeble to  base any  conviction  on  that.  In  his opinion the  witnesses could  not be  said to be independent and they  were mere  chance witnesses. He further found that the probability  that Dhani  Ram was  attacked while  it was dark, before  he had  evacuated or taken his breakfast could not be  weeded out and in all probability the occurrence had ..  y   taken  place   not  at  the  place  alleged  by  the prosecution. On these findings he acquitted all the accused.      On appeal,  however, the High Court set aside the order of acquittal  and convicted the appellants under s. 302 read with s.  34 IPC  and  sentenced  each  of  them  to  undergo

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imprisonment for life. E      The circumstances which weighed with the Sessions Court for disbelieving  the evidence  of the  prosecution, in  our opinion, appear  to be  weighty. According  to  prosecution, Dhani Ram  had come  to help  his father  in  ploughing  his fields on 7th October, 1969, but from the evidence on record it is  clear that  he came  in the evening of 7th October to village Therro  and left  the same  for village  Kuretha the next day  at 9  A.M. It  does not stand to reason that Dhani Ram would  leave for  a different  village at  a distance of about S  or 6 miles without easing himself or without taking his breakfast.  But, as the doctor in postmortem examination had found  the stomach and bladder of the deceased Dhani Ram to be  empty, this gave a handle to Ajudhya to depose in the evidence that  Dhani  Ram  had  not  taken  breakfast  while leaving village  Therro for village Kuretha. The presence of the faecal  matter in the large intestine does indicate that Dhani Ram  had not  evacuated. There-  fore, the possibility that Dhani Ram was done to death early in the morning before he had evacuated is Dot weeded out. Ajudhya, 332 P.W.1, in  his deposition  has clearly stated that Dhani Ram used to  ease himself just after getting up from the bed but he was  not in a position to say whether on that fateful day Dhani Ram  had gone  to ease  himself just  after getting up from sleep.  If Dhani  Ram was  in the habit of going out to ease himself  early in  the morning  just after  getting up, there seems  to be  no reason  why he  would not  go to ease himself on  that day  if he was to go to his father-in-law’s house.      The Sessions Judge also came to the conclusion that the place of  occurrence was  not the  one  as  alleged  by  the prosecution in  the first  information report. In the FIR it has been  stated that  assault on Dhani Ram had been made at the field  of Malkhan near Ram Kund Temple. According to the Sub-Inspector the  dead body  and the  blood were found near the field  of Malkhan  which is at a distance of more than a furlong from Ram Kund Temple. Ajudhya, P.W. 1, stated before the court of Sessions that attack on Dhani Ram was made when he and  Dhani Ram  reached the field of Malkhan. He  further added that  Ram Kund Temple is also at that very place. From this statement  it is apparent that the assault on Dhani Ram was made  just near  the temple.  Kashi Ram,  P.W.  3,  also deposed before the committing Magistrate that he heard noise near Ram  Kund Temple.  He did not say before the committing Magistrate that  when he reached the field of Malkhan he saw the occurrence. But, in the court of Sessions he denied that he had  made the  aforesaid statement  before the committing Magistrate. However, it was proved from Exrt. Kha. 5 that he did depose  before the  committing Magistrate  that when  he reached near the temple he heard the noise.      The prosecution  case in the initial stage was that the assault had  been made  near Ram  Kund Temple. Of course, it was also  mentioned in the FIR that the field of Malkhan was nearby. The  Sub-Inspector did  not take care to find out if any of  the fields  of Malkhan  was near  the temple.  There might be some other field of Malkhan near the temple and the reference to  that field  might have  been made in the first information report.      The  injuries   on  Dhani   Ram  also   indicated  that practically all the injuries were on his face and there were hardly any injuries on any other part of his body. This also suggests that  the injuries  had been caused while Dhani Ram was lying on the ground.      The other  two witnesses,  Arjun and  Kashi Ram deposed

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that they  saw the  occurence from  near  the  nallah.  This nallah is far away 333 from the  temple. A  person standing at that place could not see the.  A marpeet  going on  near the  temple, as  will be clear from  a reference  to the  site plan  attached to  the paper book.  The learned  Sessions Judge  observed that  the place of  occurrence was  perhaps shifted  to make it appear that the  witnesses standing  near the  nallah could see the marpeet.      Even assuming that the assault had taken place near the field of Malkhan, the learned Sessions Judge was of the view that the  witnesses had  not seen the assault and that Arjun and Kashi  were mere  chance witnesses on their own showing. They were  alleged  to  be  going  to  village  Dhanora  for purchasing seeds  and on  the way  they happened  to see the occurrence. Arjun  and Kashi  were Gadarias  to which  caste Ajudhya also  belonged and  were  next  door  neighbours  of Ajudhya. They were on friendly terms, meeting everyday. They came into  the witness  box only  to help Ram Charan, one of the accused  in the case under s. 498 IPC, who also belonged to the  same caste  of Gadarias as the two witnesses. In the opinion of the learned Session Judge the fact that the other two. witnesses,  namely, Arjun  and Kashi were also going to another village  Dhanora for  seeds and they happened to see the occurrence  was too  much of  a coincidence. No owner of any of  the fields  in the  vicinity has  been produced as a witness on behalf of the prosecution.      The blood-stained  earth said  to have  been taken from near the  field of  Malkhan was sent to the chemical analyst and the  serologist but the report of the serologist has not been produced before the court, and, therefore, it cannot be said that the blood recovered from the site was human blood.      The learned  Sessions Judge  was also  of the view that the accused had no motive to murder Dhani Ram inasmuch as in the complaint  under s. 498 IPC it was said that Ra n Charan and Ghurka  had enticed  away the wife of Babu but they kept her at  the house  of Dhani  Ram. Ajudhya, the father of the deceased, stated  before the investigating officer that Babu etc. accused  in the  present case were under the impression that Dhani  Ram had  kept the  woman at  his house  and  had enticed her  for his  Mama Halka.  But before  the  Sessions Court in cross-examination he admitted that the wife of Babu had been enticed away by Ghurka and Ram Charan and then they did not  keep the  girl with  them but sent her to her Maika Next day  he, however,  deposed that  Dhani Ram  himself had told him  that the  woman had come to his house. He kept her for some time 334 and then  sent her  to her  Maika. The woman had returned to Babu before  the murder  had taken  place. However, the case under s.  498 IPC  was pending  at the time of the murder of Dhani Ram  and Ajudhya  and his  family members  might  have availed  of  the  opportunity  to  implicate  Babu  who  was complainant in that case, and his brother Munna and Tulaiyan who were witnesses in that case. Ajudhya might have got them behind the  bars so that there might not be any body left to do pairwi in that case.      The cumulative  effect  of  the  various  circumstances enumerated above,  in the opinion of the Sessions Judge, did throw doubt  on the  prosecution case  and  if  the  learned Sessions Judge  in the circumstance did not think it safe to rely  upon   the  evidence   produced  on   behalf  of   the prosecution, he committed no error.      The High  Court, however,  negativated  the  suggestion

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that Ajudhya was interested in falsely implicating the three accused in this case so as to prevent them from doing pairwi in the  criminal case  under s.  498 IPC instituted by Babu. The High Court observed:           "...that complaint  was against  Dhani Ram, Halka,      13 Ram  Charan and  Ghurka. In  that complaint  neither      Ajudhya nor  any other eye witnesses produced on behalf      of the  prosecution had  been arrayed as accused. There      is nothing  on the  record to  show  that  Ajudhya  was      taking  any   interest  in   the  criminal   litigation      instituted by Babu Ram. It is difficult to believe that      while promptly  lodging the  first  information  report      Ajudhya was  thinking in  terms of  implicating persons      who could do pairwi against Dhani Ram and others. If at      all, Ajudhya  would be  interested in  seeing that  the      real assailants of his son are brought to book." The observation  made by  the High Court would be correct if Ajudhya  and   the  two   witnesses  had   really  seen  the occurrence. But  if they were Dot on the scene of occurrence they might  draw on  their imagination  and try to implicate persons on  whom they  had a  sus-picion. In our opinion the High Court  was not  justified  in  coming  to  a  different conclusion if the conclusion drawn by the Sessions Judge was a plausible and possible one. 335      Arjun, P.W.  2. and  Kashi Ram, P.W. 3 were Gadarias by caste. Ajudhya  was also  Gadaria by  caste. Arjun and Kashi Ram were  just next door neighbours of Ajudhya and they were on friendly  and visiting terms. Two of the persons accused- in the  complaint filed by Babu were also Gadarias by caste. The learned  Sessions Judge  in  the  circumstances  branded those witnesses as not independent. As observed earlier, the High Court,  however, held that they would not be interested in implicating  false persons merely on the ground that they were next  door neighbours.  The High Court further took the view that  no question was put to the witnesses that Malkhan had two  fields, one adjoining Ram Kund temple and the other at a  short distance away from the other. It was not for the accused to prove that there was another field of Malkhan but it was  for the  prosecution to prove by conclusive evidence that Malkhan had only one plot and no other plots.      About the  time  of  occurrence  also  the  High  Court reversed  the   finding  of  the  Sessions  Court  that  the possibility was  that Dhani  Ram was  done to  death in  the early hours  of 8th  October before  he  had  gone  to  ease himself. The  reasons given  by the Sessions Court appear to be more  plausible on  the materials  on the  record. In any case, even if two views were possible, the High Court should not have  interfered with  the conclusions arrived at by the Sessions Court  unless the conclusions were not possible. If the finding  reached by the trial Judge cannot be said to be unreasonable, the Appellate Court should not disturb it even if it  were possible  to reach a different conclusion on the basis of  the material on the record because the trial Judge has the  advantage of  seeing and  hearing the witnesses and the initial  presumption  of  innocence  in  favour  of  the accused is   not  weakened by  his acquittal.  The appellate Court, therefore,  should be  slow in disturbing the finding of fact  of the  trial court  and if two view are reasonably possible of  the evidence on the record, it is not ’expected to interfere  simple because  it feels  that it  would  have taken a  different view  if the  case had  been tried by it. This Court  in U.P.  State v.  Samman Dass(1) dealing with a similar situation laid down the following postulates:           "There are,  however, certain cardinal rules which

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    have always  to be  kept in  view  in  appeals  against      acquittal. Firstly, there is a presumption of innocence      in favour of 336      the accused  which has  to be  kept in mind, especially      when the accused has been acquitted by the court below;      secondly, if  two views  of the  matter are possible, a      view  favourable   to  the  accused  should  be  taken;      thirdly, in  case of  acquittal by the trial judge, the      appellate court  should take into account the fact that      the trial  judge had  the advantage  of looking  at the      demeanour of  witnesses; and  fourthly, the  accused is      entitled to  the benefit  of doubt.  T he doubt should,      however, be  reasonable and  ... should  be such  which      rational thinking  men will  reasonably,  honestly  and      conscientiously entertain  and not the doubt of a timid      mind which  fights shy-though  unwittingly it may be-or      is afraid  of the logical consequences, if that benefit      was not given."      We have  closely perused  the evidence  produced in the case and  also gone through the two judgment of the Sessions Court as  well as  the high  Court, and  after  hearing  the counsel for the parties at some length we are satisfied that the conclusions  arrived at by the Sessions Court were fully justified and  should not have been lightly set aside by the High Court.      For the reasons given above the appeal must succeed and it is accordingly allowed and the judgment of the High Court dated 17th  September, 1975  is set  aside and  that of  the Court of Sessions is restored S.R.                                         Appeal allowed. 337