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PETITIONER: KHEM KARAN AND OTHERS

       Vs.

RESPONDENT: THE STATE OF U.P. AND ANOTHER

DATE OF JUDGMENT08/04/1974

BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. BEG, M. HAMEEDULLAH CHANDRACHUD, Y.V.

CITATION:  1974 AIR 1567            1974 SCR  (3) 863  1974 SCC  (4) 603

ACT: Code    of   Criminal   Procedure,   1908--Appeal    against acquittal--Propriety  of Court of Appeal convicting some  of the  acquitted persons--Group clash--Scope of  High  Court’s power  to re-evaluate evidence--Foundation for acquittal  is re-moved by otherwise credible testimony.

HEADNOTE:  In   a  background  of  bitter  hostility.  there   was   a confrontation   and   exchange  of  violence   between   the complainants’ group and that of all the  accused-appellants. Several  on the prosecution side sustained  gunshot  wounds, although  not  fatal,  while  the  three  accused-appellants received  lathi blow injuries.  The complainant’s  plea  was that  when  attacked by guns, he and his men went  at  them, disarmed  them  and  beat them  with  lathis.   Twenty-three accused  stood  trial..  The  trial  court  disbelieved  the defence version out found that the prosecution testimony too partisan,  and  consequently acquitted everyone.   The  High Court  maintained  the  acquittal  of  all  but  the   three appellants-accused.  In respect of the latter, it found that the injuries on the persons of the three appellants and) the fact ’,hat one of them had a gun in his hands at the time of the  occurrence,  were sufficient, together with  the  other evidence to hold them guilty.  On appeal by special leave to this Court by the said three appellants, HELD  :  (1) The principle of law is well  established  that merely  because  a.  different  view  of  the  evidence   is possible, you cannot cancel a finding against guilt Rut  the appellate Court is untrammelled in its power to  re-evaluate the   evidence,   bearing  in  mind   the   seriousness   of overthrowing  an acquittal once recorded.  In that  view  we cannot find any error of law in the High Court reconsidering the probative value of the oral and circumstantial  evidence in  the  case.   Nor  are we persuaded  to  think  that  the appellate   Court  has  failed  to  observe  the   built-in. restraints   on  exercise  of  power  while   upsetting   an acquittal.   On  the  other hand, the  Court  has  made  the correct approach that only those accused against whom  there was  additional probative reinforcement could be  convicted. [864 G-865 B]

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(11)Neither  mere  possibilities nor  remote  probabilities no,,  mere  doubts  which are not  reasonable  can,  without danger to the administration of justice,. be the  foundation of the acquittal of an accused person, if there is otherwise fairly  credible  testimony.  If a  trial  Courts’  judgment verges  on the perverse, the appellate Court has a  duty  to set  the  evaluation right and that is about  all  that  has happened in this case. [865 E-F] (111)The fact that a large number of accused have  been acquitted and the remaining who have been convicted are less than  five cannot vitiate the conviction under s.  149  read with  the substantive offence if-as in this case  the  Court has taken care to find-there are other persons who might not have  been,  identified or convicted but were party  to  the crime  and  together constituted the statutory  number.   On trust  basis, the conviction under s. 307. read with S.  149 has to be sustained [866 A-B] Sukh Ram v. State of U.P. A.I.R. 974, S.C. 323, referred to. Bharwad  Mepa Dana v. State of Bombay. [1962] 2 S.C.R.  172. relied on.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION :-Criminal Appeal No. 40 of  1971.  Appeal  by special leave from the Judgment and Order  dated the  21st  September, 1970 of the, Allahabad High  Court  at Allahabad in Criminal Appeal No. 944 of 1967. 12-Lg4SuP.  Cl/75 864 R.   L. Kohli, for the appellant. O.   P. Rana, for respondent No. 1. The Judgment of the Court was delivered by- KRISHNA IYER, J.-This appeal by special leave, by three  out of twenty three, who alone were convicted by the High  Court in  reversal of a total acquittal by the trial court,  turns on  the propriety of the Court of Appeal convicting  accused persons   whose  initial  advantage  of  a  presumption   of innocence has been strengthened by a judicial affirmation at the first level. The  few facts are these.  Two groups-the complainants’  and the  accused’s--have  been on terms  of  bitter  hostility-a background material which has legitimately induced both  the courts  to  be  very sceptical about  the  veracity  of  the prosecution   witnesses   in   the,   absence   of   unlying corroboration.  As found by both the courts, a confrontation and  exchange  of violence occurred on June  22,  1964  each party  calling the other aggressor.  Anyway, several on  the prosecution  side  did  receive  gunshot  wounds,   although luckily not fatal, and three among the accused bunch had  on their   person  lathi  blow  injuries.   The   trial   Judge disbelieved  the version of the defence but found the  P.Ws. too  partisan  to  pin  his faith  on,  and  in  consequence acquitted  everyone.  The High Court agreed that unless  the infirmity  of  interested  testimony  was  cured  by   other credible evidence the fate of the case would be the same and on  that basis dismissed the State’s appeal against all  but the  three  appellants  before  us.   Was  this  exceptional treatment  justified  (a) by the evidence, and  (b)  in  the light of first court’s acquittal ? An  encounter  did take place and a  case  and  counter-case ensued.  The accused-except a few who pleaded alibi in vain- claimed that they were attacked. Even the trial court  has rejected this contention and the High Courthas held  that,

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having  regard to the number and nature of injuries and  the number  of  persons  who have been hit by  fire  power,  the accused  were the attackers.  We see no reason  to  disturb, this conclusion.  Even so, how could you hand-pick three out ,of twenty three for punishment?  The complainant’s plea  is that  when  attacked by guns he and his men werit  at  them, disarmed  them  and beat them with  lathis.   The  convicted three  have  injuries which fit in with this  version.   The appellate Court has taken these injuries as corroborative of participation  in  the rioting and attempt to  murder  (read with  s. 149, I.P.C.) charged against all the accused.   The short  question is whether these wound bring home the  guilt so strongly as to warrant upsetting of an earlier acquittal. The  principle of law is well-settled that merely because  a different  view of the evidence is possible-minds differ  as rivers differyou cannot cancel a finding against guilt.  But the  appellate  Court is untrammelled in its  power  to  re- evaluate  the  evidence bearing in mind the  seriousness  of overthrowing  an acquittal once recorded.  In that  view  we cannot find any error of law in the High Court                             865 reconsidering   the   probative  value  of  the   oral   and circumstantial  evidence in the case.  Nor are we  persuaded to think that the appellate Court has failed to observe  the built-in restraints on exercise of Dower while upsetting  an acquittal.   On  the  other. hand, the Court  has  made  the correct approach that only those accused against whom  there was  additional probative reinforcement could be  convicted. So,  it found that the injuries on the persons of the  three appellants and the fact that Siya Ram, appellant No. 2,  had a  gun  in  his hands at the time  of  the  occurrence  were sufficient,  together with the other evidence, to  hold  the appellants guuity. We cannot part with this case without mentioning the serious error  some subordinate courts commit in the application  of the  rule of benefit of reasonable doubt.  For instance,  in the  present case the learned Sessions Judge  has  misguided himself by chasing bare possibilities of doubt and  exalting them   into  sufficiently  militating   factors   justifying acquittal.   The following passage illustrates the  grievous mistake of the learned Judge :               "I must concede that probabilities for such  a               situation are remote but possibilities  cannot               be  ruled  out.  We have to  see  whether  the               incident  took place in the manner as  alleged               by   the  prosecution  or  not.   To   inspire                             confidence of the Court the prosecutio n has  to               establish each link in its version beyond  all               doubts.  When other links in the  prosecution,               as  discussed  above, have failed  to  inspire               confidence, I think in such a case the benefit               of doubt prevailing around the remaining links               in the version must go to the accused." Neither mere possibilities nor remote probabilities nor mere doubts  which are not reasonable can, without danger to  the administration   of  justice,  be  the  foundation  of   the acquittal of an accused person, if there is otherwise fairly credible  testimony.  If a trial court’s judgment verges  on the  perverse,  the appellate court has a duty  to  set  the evaluation right and that is about all that has happened  in this  case.   The High Court has given a  large  margin  for reasonable   doubt   and  confirmed  the  acquittal   of   a considerable number of the accused. Although  the surviving accused who have been convicted  are

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only three, s. 149, and in any case s. 34, I.P.C., will rope in  the appellants by way of constructive  liability.   This Court  has, in Sukh Ram v. State of U.P.,(1) held  that  the acquittal of two out of three named accused does not bar the conviction of the third under s. 302, read with s. 34, if he is  shown  to  have  committed  the  offence  with   unknown companions.   As  in  that  case,  here  also  no   possible prejudice  can be claimed by the accused-appellants  by  the invocation  of  s.34, I.P.C., even if twenty out  of  twenty three  have  been acquitted.  Moreover, this  Court  has  in Bharwad Mena Dana v. State of Bombay(2) (1) A.I.R. 1974 S.C. 323. (2) [1962] 2 SCR 172. 866 taken  the view that nothing in law prevents the court  from finding  that the unlawful assembly consisted of  less  than five   convicted  persons  and  some  unidentified   persons together  numbering  more than five. In our view,  the  fact that  a large number of accused have been acquitted and  the remaining who have been convicted are less than five  cannot vitiate   the  conviction  under  s.  149  read   with   the substantive  offence if-as in this case the Court has  taken care to find there are other persons who might not have been identified  or  convicted but were party to  the  crime  and together  constituted the statutory number.  On this  basis, the  conviction  under s. 307, read with s. 149, has  to  be sustained. What  remains is the question of sentence.  It is true  that those  assailants who did not receive injuries have  escaped punishment and conviction has been clamped down on those who have  sustained injuries in the course of the clash.  It  is equally  true  that those who have allegedly  committed  the substantive offences have jumped the gauntlet of the law and the  appellants have been held guilty  only  constructively. We also notice that the case has been pending for around ten years and the accused must have been in jail for some  time, a  circumstance  which is relevant under the  new  Criminal, Procedure  Code though it has come into operation only  from April   1,  1974.   Taking  a  conspectus  of  the   various circumstances  in  the  case, some of  which  are  indicated above,  we are satisfied that the ends of justice  would  be met by reducing the sentence to three years rigorous  impri- sonment  under  s.  307, read with s.  149,  and  one  year- rigorous  imprisonment under s. 147, I.P.C., the  two  terms running  concurrent  y.  With  this  modification  regarding sentence, we dismiss the appeal. S.B.W. Appeal dismissed. 867