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PETITIONER: RAM JAG AND OTHERS

       Vs.

RESPONDENT: THE STATE OF U.P.

DATE OF JUDGMENT21/12/1973

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

CITATION:  1974 AIR  606            1974 SCR  (3)   9  1974 SCC  (4) 201  CITATOR INFO :  F          1974 SC2165  (27)  R          1975 SC 185  (2)  F          1975 SC 274  (4)  RF         1975 SC1100  (6)  RF         1975 SC1808  (3)  F          1976 SC1994  (13)  F          1976 SC2032  (2,3)  R          1976 SC2304  (22)

ACT: Penal  Code--Ss. 302, 325, 323--Constitution of  India--Art. 136--High  Court setting aside acquittal--Appeal by  special leave--If Supreme Court could reappreciate evidence.

HEADNOTE: The  appellants who were charged with the offence of  murder were  acquitted  by the Additional Sessions  Judge  but  the order  of  acquittal  was set aside in appeal  by  the  High Court.  The High Court convicted them under various sections of  the Penal Code and sentenced them to  life  imprisonment for the offence of murder and to shorter terms for the other offences.  The prosecution case was that when the  deceased, along  with three other persons, was returning from  temple, he  was  attacked  at  about  4 P. M.  on  the  day  of  the occurrence  by  the  appellants.  The  deceased  ,  who  was mortally injured, was carried in a bullock cart to a  nearby police  station.  On the way he succumbed to  his  injuries. The  first  information  report was  lodged  in  the  police station at 12.30 that night. Allowing the appeal to this Court, HELD  : This Court in an appeal under Art. 136 will  examine the evidence only if the High Court while setting aside  the order  of acquittal by the trial court has failed  to  apply correctly   the   principles   governing   appeals   against acquittals. In  Sheo  Swarup  & Ors v. The King Emperor,  61  I.A.  398, Surajpal  Singh  v. The state [1952]  S.C.R.193  and  Sanwat Singh  v.   State  Of Rajasthan [1961]  3  S.C.R.  120,  the principles  governing appeals against acquittal  are  firmly established.   The  Code  of  Criminal  Procedure  made   no distinction  between  the powers of the appellate  court  in regard to the two categories of appeals and, therefore,  the

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High  Court has powers as full and wide in  appeals  against acquittal  as  in appeals against conviction.   Whether  the High Court is dealing with one class of appeals of  criminal jurisprudence  that  unless  the, statute  provides  to  the contrary  there is a presumption of innocence in  favour  of the accused and secondly that the accused is entitled to the benefit of reasonable doubt.  Due regard to the views of the trial  court as to the credibility of witnesses  in  matters resting  on  pure appreciation of evidence and  the  studied slowness  of the appellate court in disturbing a finding  of fact  arrived at by a judge who had the advantage of  seeing and hearing the witnesses, where such seeing and hearing can be useful aids to the assessment of evidence are well  known principles  which  generally inform  the  administration  of justice   and   govern  the  exercise   of   all   appellate jurisdiction.  They are self-imposed limitations on a  power otherwise  plenary and like all voluntary  restraints,  they constitute  valuable guidelines.  Such regard  and  slowness must find their reflection in the appellate judgment,  which can only be if the appellate court deals with the  principal reasons  that  influenced the order of acquittal  and  after examining  the  evidence  with care gives  its  own  reasons justifying a contrary view of the evidence.  It is  implicit in  this judicial process that if two views of the  evidence are reasonably possible, the finding of acquittal ought  not to be disturbed. If after applying these principles, not by their  mechanical recitation  in the judgment, the High Court has reached  the conclusion the order of acquittal ought to be reversed, this court will not reappraise evidence in appeals brought before it under art. 136of the Constitution. In such appeals,  only such  examination  of  the  evidence  would  ordinarily   be necessary as is   required to see  whether  the  high  court has appliedthe  principles correctly. The High Court  is the  final court of facts and  the reserve  jurisdiction of  this  Court  under  Art. 136,  though  couched  in  wide terms,is  by  long practice exercised in  exceptional  cases where  the High Court has disregarded the guidelines set  by this  Court  for deciding appeals against  acquittal  or  by disregard to the forms of legal process or some violation of   the  principles  of  natural  justice   or   otherwise, substantial and grave injustice has been done’, or where the finding is such that it shakes theconscience of the  court. [15B-G] 10 The  High Court in the instant case was evidently  aware  of these principles but it failed to apply then to the case  on hand.   The High Court was not correct in characterising  of the findings recorded by the trial court as "perverse". (i)  The  High Court was not right in rejecting the view  of the Sessions Judge that there was undue delay in lodging the report and that the delay was not satisfactorily  explained. Whether  the  delay  was  so long as to  throw  a  cloud  of suspicion on the case of the prosecution must depend upon  a variety of factors which would vary from case to case. (ii) In the instant case the defence of the appellants  that the  occurrence  must  have  taken  place  under  cover   of darkness,  that  is,  long after the time at  which  it  was alleged  to  have taken place is well founded and  the  High Court was clearly in error in discarding it. (iii)     If  the  principal witness had no  compunction  in creating  an  eyewitness his evidence had to  be  approached with  great  caution.  The High Court was not  justified  in holding  that the only impact of the false discovery  of  an eye witness on the prosecution case was that the evidence of

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the principal witness had to be rejected in part. (iv) Yet another witness had made conflicting statements  on oath  before  two  courts on an  important  aspect  and  the question  which the High Court should have asked itself  was whether  the view taken by the Sessions Court in  regard  to this  witness was a reasonable one.  The High Court was  not right  in  saying that there was no reason  to  discard  the testimony  of the other eye witnesses even if  his  evidence was left out. (v)  The motive was said to be illicit intimacy between  the deceased  and daught of one of the assailants.  But  one  of the  witnesses deposed that the assailants were dacoits  and that they searched his pocket as well as the pockets of  his companions.  The first information report made no mention of any  one  of the accused referring to the  illicit  intimacy before,  during or after the attack.  The endeavour  at  the trial  was to show that the incident was connected with  the illicit  affair.  if that be the true motive, it  is  hardly likely  that the assailants would search the pockets of  the deceased  and  his  companions.   The  Sessions  Judge   was justified in attaching due importance to this aspect of  the matter  and  the  High Court was not right  in  saying  that unnecessary emphasis was laid on a minor matter.

JUDGMENT: CRIMINAL, APPELLATE JURISDICTION : Criminal Appeal No. 110 of 1970. Appeal  by Special Leave from the Judgment and  Order  dated the  8th January 1970 of the Allahabad High  Court  (Lucknow Bench) at Lucknow in Criminal Appeal No. 634 of 1967. A.   N. Mulla and R. L. Kohli, for the appellants. 0.   P. Rana, for the respondent. The Judgment of the Court was delivered by CHANDRACHUD J.-The appellants, eleven in all, were acquitted by  the Additional Sessions Judge, Gonda, but the  order  of acquittal  was  set  aside in appeal by the  High  Court  of Allahabad (Lucknow Bench).  The High Court has convicted the appellants under sections 302, 325 and 323 read with section 149 and under section 147 of the Penal Code.  They have been sentenced to life imprisonment for the offence of murder and to  shorter  terms for the other offences.  This  appeal  by special leave is directed against that judgment.  The charge against  the appellants is that on the evening of  September 17, 1966 they formed an unlawful assembly and in prosecution of the common object of that assembly 11 they  caused  the  death of Hausla Prasad  and  injuries  to Rampher, Dwarika and Lakhu. On  September 17,1966 which was a Kajri Tij day Rampher  and the deceased Hausla Prasad had gone to a temple which is  at a  distance about 8 miles from the village of Jhampur  where they lived. They left the temple late in the afternoon along with  Dwarika and Lakhu whom they met at the  temple.   Soon after they crossed a river near the village of Singha Chanda they  are alleged to have been attacked by  the  appellants. Dwarika  brought  a  bullock’ cart  from  a  village  called Gauhani and thereafter the four injured persons proceeded to the  Tarabganj police station.  On the way Rampher  dictated the First Information Report to a boy called Gorakhnath  and soon,,  thereafter  the  report was  lodged  at  the  police station at about 12-30, at night. Hausla  Prasad  succumbed to his injuries  just  before  the party  reached the police station.  He had’ 12  injuries  on

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his  person,  Lakhu and a swelling Rampher  had  received  6 injuries  while  Dwarika  had  received  9  injuries.    The injuries received by these persons including, Hausla  Prasad were mostly contused lacerated wounds and abrasions. The  prosecution  examined  Rampher,  Dwarika,  Lakhu,  Ram, Shanker  and Ram Kripal (P.  Ws 2 to 6) as eye-witnesses  to the Occurrence.  The learned Additional Session’s Judge held that these witnesses were not worthy of credit and acquitted the  appellants.   The High Court was not impressed  by  the evidence  of Ram Shanker and.  Ram Kripal but accepting  the evidence  of  Rampher, Dwarika and Lakhu  it  convicted  the appellants of the offences of which they were charged. Learned  counsel  for the State, when called upon  raised  a fundamental  objection  to  our  entertaining  the   various questions  raised on behalf of the appellants.  He  contends that  the sole question in the appeal, is whether  the  High Court was right in accepting the evidence of the three  eye- witnesses  and therefore this Court, in the exercise of  its powers  under article 136 of the Constitution, ought not  to re-appreciate that evidence in order to determine whether it can sustain the conviction of the appellants. The question as regards the power of this Court in  criminal appeals  by special leave from the judgments of High  Courts setting  aside  acquittals has been  discussed  in  numerous cases  but  the precise scope of that power is  still  being debated  as a live issue.  In case after case, counsel  have contended  that  this  Court  does  not  under  article  136 function  as  yet another court of appeal and  therefore  on matters  of  appreciation of evidence, the final  word  must rest  with the High Court.  Considering the staggering  mass of work which is gradually accumulating in this Court,  such a rule will bring welcome relief.  But it is overstating the rule to say that the verdict of the High Court on  questions of  fact, including assessment of evidence, cannot  ever  be re-opened in this Court. 12 The true position is that if the High Court has set aside an order  of acquittal, this Court in an appeal  under  article 136  from  the judgment of the High Court will  examine  the evidence  only  if  the  High  Court  has  failed  to  apply correctly   the   principles   governing   appeals   against acquittal.  In a series of decisions, High Courts had  taken the view that upon an appeal from an acquittal the appellate court is not entitled to interfere with the decision of  the trial  court  on  facts unless it has  acted  perversely  or otherwise  improperly  or has been deceived by  fraud.  (See Empress  of  India v. Gayadin(1);  Queen-Empress  v.  Robin- son(2);  Deputy Legal Remembrancer of Bengal v. Amulya  Dwan (3); King-Emperor v. Deboo Singh (4); King-Emperor; v. U San Win  (5).) A contrary line of cases had, on the other  hand, ruled   that  the  Code  of  Criminal  Procedure   drew   no distinction  between  an  appeal from an  acquittal  and  an appeal  from a conviction, and no such distinction could  be imposed  by  judicial decision. (See Queen-Empress  v.  Prag Dat(6); Queen-Empress v. Bibhuti Bhusan Bit(7); Deputy Legal Remembrancer,  Behar and Orissa v. Mutukdhari Singh (8);  Re Sinnu Goundan (9); Queen-Empress v. Karigowda(1O). In  Sheo  Swarup  and Ors. v.  The  King-Emperor,(11)  these conflicting  decisions  were  canvassed  before  the   Privy Council  but it saw no useful purpose in examining the  long list  of  decisions.   Observing  that  the  answer  to  the question in issue would depend upon the construction of  the provisions  in  the  Code  of  Criminal  Procedure,the,Privy Council  noticed  sections  404,  410,  417,  418  and  422, examined  section  423 and concluded that the Code  draw  no

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distinction  between an appeal against an acquittal  and  an appeal  against a conviction, as regards the powers  of  the High  Court.   Speaking  for the  Judicial  Committee,  Lord Russell observed :               "There is, in their opinion, no foundation for               the   view,   apparently  supported   by   the               judgments  of some Courts in India,  that  the               High  Court  has no power or  jurisdiction  to               reverse  an order of acquittal on a matter  of               fact, except in cases in which the lower Court               has "obstainately blundered," or has  "through               incompetence, stupidity or perversity" reached               such  "distorted conclusions as to  produce  a               positive  miscarriage of justice," or  has  in               some  other way so conducted  or  misconducted               itself as to produce a glaring miscarriage  of               justice, or has been tricked by the defence so               as to produce a similar result.               "Sections 417, 418 and 423 of the Code give to               the  High Court full power to review at  large               the evidence upon which the order of acquittal                             was  founded, and to reach the conclus ion  that               upon  that  evidence the  order  of  acquittal               should  be  reversed No limitation  should  be               placed upon that power, unless it be found               1.    (1881) I. L. R. 4 Allahabad 148.               2.    (1894) I. L. R. 16 Allahabad 212.               3.    (1913) I.L.R. 18 C.W.N. 666.               4.    [1927] I.L.R. 6 Patna 496.               5.    (1932) I.L.R. 10 Rangoon 312.               6.    (1898) I.L.R. 20 Allahabad 459.               7.    (1890) I.L.R. 17 Calcutta 485.               8.    (1915) 20 C.W.N. 128.               9.    (1914) I.L.R. 38 Madras 1028,1034.               10.   (1894) I.L.R. 19 Bombay 51.               11. 61 1. A. 398.               13               expressly   stated   in  the  Code,   But   in               exercising the power conferred by the Code and               before reaching its conclusions upon fact, the               High Court should and will always give  proper               weight  and consideration to such  matters  as               (1)the  views  of the trial judge  as  to  the               credibility   of   the  witnesses;   (2)   the               presumption  of  innocence in  favour  of  the               accused, a presumption certainly not  weakened               by the fact that he has been acquitted at  his               trial; (3) the  right  of the accused  to  the               benefit of any doubt; and (4)  the slowness of               an appellate Court in disturbing a finding  of               fact  arrived  at  by  a  judge  who  had  the               advantage  of seeing the witnesses.  To  state               this,  however, is only to say that  the  High               Court in its conduct of the appeal should  and               will   act  in  accordance  with   rules   and               principles  well known and recognised  in  the               administration of justice." The  amplitude  of the power of the High  Court  in  appeals against acquittal was reiterated by the Privy Council in Nur Mahomed v. Emperor.(1) While  holding that in appeals against acquittals  the  High Court has full power to review at large all the evidence and to reach the conclusion that upon that evidence the order of acquittal should be reversed, the Privy Council had  pointed

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out  that before reaching its conclusions on facts the  High Court must always give proper weight to certain matters like the  presumption  of innocence, the benefit of’  doubt  etc. This qualification upon a power otherwise wide and unlimited was  no  more than differently expressed by  this  Court  in Surajpal Singh v. The State(2), by saying that though it  is well-established  that  the  High Court has  full  power  to review  the  evidence on which the order  of  acquittal  was founded, "it is equally well settled that the presumption of innocence  of  the  accused is  further  reinforced  by  his acquittal by the trial court, and the findings of the  trial court  which had the advantage of seeing the  witnesses  and hearing  their  evidence  can  be  reversed  only  for  very substantial    and   compelling   reasons".    The    phrase "substantial  and compelling reasons" became almost a  part, as it were. of codified law and was repeatedly used by  this Court  with emphasis in cases like Ajmer Singh v.  State  of Punjab(3), Puran v. State of’ Punjab (4), Aher Raja Khima v. The  State  of  Saurashtra  (5), Bhagwan  Das  v.  State  of Rajasthan  (6)  and  Balbir Singh v. State  of  Punjab.  (7) Judgments   of  several  High  Courts  in  appeals   against acquittals would bear evidence of the magic spell which  the phrase  had cast and how it had coloured their  approach  to the   evidence   before  them.   The   apparently   rigorous requirement of the rule of "substantial and compelling  rea- sons" and to some extent its tedium was relieved by the  use of words " good and sufficiently cogent reasons" in Tulsiram Kani  v.  The State.(8) In Aher Raja  Khima’s  case(5),  the formula of "substantial and corn- 1.   A.I.R. 1945 P.C. 151. 3.   [1953] S.C.R. 418. 5.   [1955] 2 S.C.R.1285. 7.   A.I.R. 1957 S.C. 216, 2.   [1952] S.C.R. 193. 4.   A.I.R. 1953 S.C. 459. 6.   A.I.R. 1957 S. C. 589. S.   A.I.R. 1954 S.C. 1. 14 pelling  reasons" though adopted, was treated as  synonymous with "strong reasons". This stalemate was resolved by this Court in Sanwat Singh v. State  of Rajasthan(1). Observing that "In recent years  the words  ’compelling  reasons’  have  become  words  of  magic incantation in every ..appeal against acquittal", the  Court said: "The words were intended ,,to convey the idea that  an appellate court not only shall bear in mind .the  principles laid down by the Privy Council but also must give its ,clear reasons  for  coming  to the conclusion that  the  order  of acquittal was wrong." The principles laid down by the  Privy Council in Sheo Swarup’s case(2) were expressly approved and it  was  held that "the different phraseology  used  in  the judgments  of  this Court, such as,  (i)  ,.substantial  and compelling  reasons’,  (ii) ’good  and  sufficiently  cogent reasons’,  and  (iii) ’strong reasons’ are not  intended  to curtail  the  undoubted power of an appellate  court  in  an appeal  against acquittal to review the entire evidence  and to  come to its own conclusion ; but in doing so  it  should not only consider every matter on record having a bearing on the  question  of fact and the reasons given  by  the  court below  in support of its order of acquittal in its  arriving at  a  conclusion on those facts, but  should  also  express those  reasons in its judgment, which lead it to  hold  that the acquittal was not justified." The  principles  governing  appeals  against  acquittal   as explained  in  Sanwat  Singh’s case have  been  adopted  and

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applied  by this Court in numerous cases over the past  many years.   No case has struck a discordant note though one  or the other requirement of the well-established principles has been  high-lighted  more in some judgments than  in  others. These, however, are variations in style and do not reflect a variation in approach. In  Harbans Singh v. State of Punjab(3), a four-Judge  Bench observed:  "What  may be called the ’golden  thread  running through  all these ,decisions is the rule that  in  deciding appeals  against acquittal the Court of Appeal must  examine the  evidence  with particular care, must examine  also  the reasons on which the order of acquittal was based and should interfere  with the order only when satisfied that the  view taken  by the acquitting Judge is clearly unreasonable."  In Ramabhupala   Reddy  and  Ors.  v.  The  State   of   Andhra Pradesh(4),  the same thought was expressed by saying :  "if two reasonable conclusions, can be reached oil the basis  of the  evidence  on  record, the appellate  court  should  not disturb the findings of the trial court." Very recently,  in Shivaji Sahebrao Bobade and Anr. v. State of Maharashtra(5), this  Court rejuvenated the suspect formula of  "substantial and   compelling  grounds"  thus  :  "We  are   clearly   in agreement...... that an acquitted accused should not be  put in peril of conviction on appeal save where substantial  and ,compelling  grounds exist for such a course........ In  law there  are no fetters on the plenary power of the  Appellate Court  to review the whole ,evidence on Which the  order  or acquittal is founded and, indeed, it 1. [1961] 3 S.C.R. 120. 3. [1962] 1 Supp.  S.C.R. 104. 1 5. A.I.R. 1973 S.C. 2622. 61 1. A. 398. 4.   A.I.R. 1971 S.C. 460, 15 has  a  duty to scrutinise the probative material  de  novo, informed,   however,  by  the  weighty  thought   that   the rebuttable  innocence attributed to the accused having  been converted  into  an acquittal the homage  our  jurisprudence owes  to individual liberty constrains the higher court  not to  upset  the holding without very convincing  reasons  and comprehensive consideration." The principles governing appeals against acquittal are  thus firmly  established and the issue cannot now  be  re-opened. The Code of Criminal Procedure by section 423, has  accorded parity  to  appeals against conviction and  appeals  against acquittal; the Code makes no distinction between the  powers of  the appellate court in regard to the two  categories  of appeals and therefore the High Court has powers as full  and wide  in  appeals against acquittal as  in  appeals  against conviction.   Whether  the High Court is  dealing  with  one class  of appeals or the other, it must equally have  regard to the fundamental principles of Criminal Jurisprudence that unless  the  statute  provides to the contrary  there  is  a presumption  of  innocence  in favour  of  the  accused  and secondly,  that  the accused is entitled to the  benefit  of reasonable  doubt.   Due regard to the views  of  the  trial court as to the credibility of witnesses in matters  resting on  pure appreciation of evidence and the, studied  slowness of  the  appellate  court in disturbing a  finding  of  fact arrived  at by a Judge who had the advantage of  seeing  and hearing the witnesses, where such seeing and hearing can  be useful  aids to the assessment of evidence,  are  well-known principles  which  generally informs the  administration  of justice   and   govern  the  exercise   of   all   appellate jurisdiction.  They are self-imposed limitations on a  power

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otherwise  plenary and like all voluntary  restraints,  they constitute  valuable guidelines.  Such regard  and  slowness must find their reflection in the appellate judgment,  which can only be if the appellate court deals with the  principal reasons  that become influenced the order of  acquittal  and after examining the evidence with care gives its own reasons justifying a contrary view of the evidence.  It is  implicit in  this judicial process that if two views of the  evidence are reasonably possible. the finding of acquittal ought  not to be disturbed. if after applying these principles, not by their  mechanical recitation  in the judgment, the High Court has reached  the conclusion that lie order of acquittal ought to be reversed, this  Court will not reappraise evidence in appeals  brought before  it under article 136 of the Constitution.   In  such appeals,  only  such  examination  of  the  evidence   would ordinarily  be necessary as is required to see  whether  the High  Court has applied the principles correctly.  The  High Court   is  the  final  court  of  facts  and  the   reserve jurisdiction  of  this  Court  tinder  article  136,  though couched  in  wide terms, is by long  practice  exercised  in exceptional  cases where the High Court has disregarded  the guide-lilies set by this Court for deciding appeals  against acquittal or "by disregard to the forms of legal process  or some  violation  of  the principles of  natural  justice  or otherwise, substantial and grave injustice has been done" or where  the finding is such that it shocks the conscience  of the   Court  (See,  Sanwat  Singh  &  Or.;.  v.   State   of Rajasthan(1); Harbans Singh & (1)  [1961]3 S.C.R. 120, 134-135. 16 Anr. v. State of Punjab (1); Ramabhupala Reddy and Ors.,  V. The  State of Andhra Pradesh(2); and Shivji Genu  Mohite  v. State   of  Maharashtra)(3).   A  finding  reached  by   the application  of  correct principles  cannot  shock  judicial conscience and this Court does not permit its conscience  to be  projected  save  where known  and  recognised  tests  of testimonial  assessment are totally disregarded;  otherwise, conscience can become an unruly customer. The  High Court in the instant case was evidently  aware  of these principles but it failed to apply them to the case  on hand.   In  an effort to justify its interference  with  the order of acquittal it has characterised one of the  findings recorded  by the trial court as ’perverse’ but with that  we must express our disagreement.  We will now proceed to  show how the view taken by the learned Sessions Judge is  clearly a reasonable view to take of the evidence. According  to the prosecution the occurrence took  place  at about  4 p. zn. and since the First Information  Report  was lodged  at  about  12-30 at night at  the  Tarabganj  police station  which  is at a distance of about 4 miles  from  the scene  of occurrence, the learned Sessions Judge  held  that there  was  undue delay in lodging the Report and  that  the delay  was  not satisfactorily explained.  It is  true  that witnesses  cannot  be called upon to  explain  every  hour’s delay and a commonsense view has to be taken in ascertaining whether  the First Information Report was, lodged  after  an undue  delay so as to afford enough scope  for  manipulating evidence.  Whether the delay is so long as to throw a  cloud of  suspicion  on the seeds of the prosecution  must  depend upon  a  variety of factors which would vary  from  case  to case.   Even a long delay in filing report of an  occurrence can  be  condoned  if the witnesses on  whose  evidence  the prosecution  relies  have  no  motive  for  implicating  the accused.  On the other hand, prompt filing of the report  is

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not  an  unmistakable guarantee of the truthfulness  of  the version of the prosecution. In  the instant case the importance of the question  whether there was delay in filing the First Information Report is of a  different order.  The case of the appellants is that  the occurrence  must have taken place under cover  of  darkness, that is, long after the time at which it is alleged to  have taken  place  and that is why the First  Information  Report could  not  be  ledged earlier than at  12-30  a.m.  ,  This defence  is  wellfounded and the-High Court was  clearly  in error in discarding it. The  village of Singha Chanda is just about a  furlong  away from  the  scene of offence and yet Dwarika claims  to  have gone to Gauhani, which is about 3 or 4 miles away, to get  a bullock-cart.   The  High  Court  observes:"It  is  not   an unreasonable  conduct  on the part of the witnesses  not  to take  chance  in  the nearby village  for  arranging  for  a bullock. cart when they felt sure that they would be able to procure one from a. village which was somewhat farther away, the persons who owned the bullock-cart being known to one of them." We find it difficult to endorse this view.  After the bullock-cart was brought to the place (1) (19621 1 Supp.  S.C. R. 104, 1 1 1. (2) A. I. R. 1971 S.C. 460, 464. (3) A.I.R. 1973 S.C. 55. 62. 17 where the incident took place-Rampher and his tow companions claimed  to  have taken a longer route to reach  the  police station  for the reason that taking the shorter route  would have meant crossing a river twice.  The river had but ankle- deep water and was only 12 paces from one end to the  other. Hausla  Prasad  was  in  a  critical  condition  and  it  is impossible  to  believe  that  a  longer  route  was   taken thoughtfully  in order to facilitate the journey.  The  High Court  observes:  "The  taking of a longer  route  also  was justified in order to avoid the jolts for the injured on the way for we find in the official map that there is a route by the  road  of  sufficiently good distance  along  which  the bullock-cart  could  go if it took the longer  route."  This reasoning   is  wholly  devoid  of  substance   because   in situations  like the one in which the injured  persons  were placed, there is neither time nor leisure to consider calmly the  pros  and cons of the matter.   The  uppermost  thought would  be  to reach the hospital and the police  station  as early  as possible and it is in the least degree likely,  as observed by the High Court that the injured persons  avoided going  through  the tiny river because it "might  have  done damage  to  Hausla Prasad whose condition was  by  no  means good." The  truth  of the matter is that the occurrence  had  taken place  long  after  4 p.m. and witnesses were  hard  put  to explaining  why  on their own theory they took more  than  8 hours  to  cover  a distance of 4  miles.   They  offered  a fanciful  explanation  which  was rightly  rejected  by  the Sessions  Court and was wrongly accepted by the High  Court. It is significant that Rampher had stated in the  committing court  that  all  of  them  were  waiting  at  the  spot  of occurrence for about 2 hours after "night-fall". Ram  Kripal, a brother of Rampher, himself was  examined  by the  prosecution  as  an  eye-witness.   His  name  was  not mentioned  in the First Information Report in spite  of  the fact  that  the name of other witnesses  and  several  other minute  details were mentioned therein.  If Ram  Kripal  was present  at  the time of the incident, he  rather  than  the injured  Dwarika would have gone to fetch the  bullock-cart.

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The  Sessions Court therefore rejected the evidence  of  Ram Kripal and indeed the High Court also came to the conclusion that  Ram Kripal was not a reliable witness, ’that he  might not have been present at an and has been added as an  after- thought  in  support of the prosecution or in any  case  his statement is of doubtful value, but that does not mean  that Rampher’s  statement should be discarded for  the  principle of’  falsus  in uno, falsus in omnibus is a  principle  that does   not  apply  in  our  country.’  If  Rampher  had   no compunction in creating an eyewitness his evidence had to be approached  with  great  caution.  The High  Court  was  not justified  in  holding  that the only impact  of  the  false discovery of an eye-witness on the prosecution case was that Rampher’s evidence had to be rejected in part. Ram Shanker is also alleged to have been present at the time of  the incident but he had admitted before  the  committing magistrate that he left his house for the temple at about 2- 30  p.m. That would make it impossible for him to be at  the scene of offence at about 4 p.m. on his 18 way back from the temple.  He therefore improved his version by stating in the Sessions Court that he had left his  house at  about 6 a.m. He had also stated in the committing  court that  he  was waiting at the scene of offence till  about  8 p.m.  but he denied in the Sessions Court that he  had  made any   such  statement.   The  learned  Sessions  Judge   was therefore  justified  in  rejecting  the  evidence  of   Ram Shanker.  also.   While dealing with the  evidence  of  this witness  the  High Court observes that "the statement  of  a witness should be examined as a whole and the mere fact that the  witness  has  denied certain  statements  made  by  him earlier under the challenge thrown to him in the witness-box during  cross-examination should not detract from the  value of his testimony made on oath before the trial Judge".   One can be unconventional in the assessment of evidence but  the approach  of  the High Court is impossible to  accept.   Ram Shanker  had made conflicting statements on oath before  the two courts on an important aspect and the question which the High Court had to ask itself in the appeal against the order of  acquittal  was whether the view taken  by  the  Sessions Court  in  regard to the presence of Ram Shanker was  not  a reasonable  view to take.  After indicating its  disapproval of  the conclusion recorded by the Sessions Court  that  Ram Shanker was not a witness of truth’ the High Court proceeded to say that even if his evidence was left out, there was  no reason to discard the testimony of the other eye-witnesses. The   High  Court  also  failed  to  appreciate   the   true implication of Rampher’s evidence in the Sessions Court that the assailants were dacoits or ’Looteras’ and that they  had searched  his  pockets  as  well  as  the  pockets  of   his companions.  Appellants are alleged to have assaulted Hausla Prasad  and his companions not with the motive  of  thieving but for the alleged motive that-Hausla Prasad was in illicit intimacy with Sheshkali, the daughter of Gaya Prasad who was the  principal accused but who died during the  proceedings. If  that be the true motive, it is hardly likely  that  Gaya Prasad  and  his  companions would  search  the  pockets  of Rampher and his troupe.  The Sessions Court was justified in attaching  due  importance  to Rampher’s  evidence  on  this aspect  of  the  matter.  We are unable  to  appreciate  the criticism of the High Court that "It is again the case of an unnecessary emphasis being laid on a minor matter".   Indeed witnesses  themselves thought the matter to be so  important that  in order to render the story of motive probable,  they introduced  in their evidence the embellishment that  before

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hitting Hausla Prasad, Gaya Prasad said "Is ko ....  Aashnai ka Maza Chakha do".  The endeavour at the trial was to  show that  the  incident was connected with  the  illicit  affair between  Hausla  Prasad and Sheshkali.   Significantly,  the First Information Report makes no mention of any one of  the accused  referring  to  the  ’Aashnai’  (illicit   intimacy) before, during or after the attack. In the concluding portion of its judgment the High Court has observed that the injured-persons must have been present  at the  spot  and as the occurrence took place in  "broad  day- light", there was no reason why their evidence should not be accepted,  "even  though they might have one reason  or  the other to falsely implicate one or the other 19 accused".   It was wrong to conclude that the  incident  had taken  place in broad day-light and it was even  more  wrong that  the  High Court did not warn itself of the  danger  of accepting  the  evidence  of witnesses  who  bad  reason  to implicate the appellants falsely. For these reasons we are of the view that the High Court was not  justified  in interfering with the order  of  acquittal passed  by the learned Sessions Judge.  We  therefore  allow this appeal, set aside the order of conviction and  sentence and  direct that the appellants shall be set at liberty,  if they are not already on bail. P.B.R, Appeal allowed. 20