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PETITIONER: RAM KUMAR PANDE

       Vs.

RESPONDENT: THE STATE OF MADHYA PRADESH

DATE OF JUDGMENT11/02/1975

BENCH: BEG, M. HAMEEDULLAH BENCH: BEG, M. HAMEEDULLAH ALAGIRISWAMI, A.

CITATION:  1975 AIR 1026            1975 SCR  (3) 519  1975 SCC  (3) 815  CITATOR INFO :  D          1981 SC1036  (9)  R          1992 SC 891  (16,18,19)

ACT: Criminal  trial--High  Court interfering with  acquittal  by trial court--When Supreme Court can interfere with  decision of High Court. Evidence Act (1 of 1872) s. 11, Scope of. Supreme    Court   (Enlargement   of   Criminal    Appellate Jurisdiction) Act, 1970--Acquittal set aside and sentence of life  imprisonment  imposed--Certificate of High  Court  for appealing to Supreme Court not necessary.

HEADNOTE: The  appellant was charged with two offences, (i)  under  s. 307  I.P.C.  with respect to one person, and (ii)  under  s. 302/34, I.P.C. for having, along with other accused,  caused the  death of another.  The trial court convicted him  under s.324  I.P.C. on the first charge and acquitted him  of  the other charge.  The appeal by the State against the acquittal on  the second charge was allowed by the High Court and  the appellant was convicted under s.302/34 I.P.C. and  sentenced to life imprisonment. Allowing the appeal to this Court, HELD : (1) In the case of an appeal against an acquittal the appellate  court  should not interfere  with  the  acquittal merely  because  it  can  take one  of  the  two  reasonably possible views which favours conviction.  But if the view of the  trial  court  is not  reasonably  sustainable,  on  the evidence on record. the appellate court will interfere  with the  acquittal.  If the High Court sets aside  an  acquittal and  convicts,  this  Court  has  to  be  satisfied,   after examining the prosecution and defence cases, and the crucial points  emerging for decision from the facts  of--the  case, that  the view taken by the trial court, on the evidence  on record,  is  atleast as acceptable as the one taken  by  the High  Court,  before  this Court could  interfere  with  the decision of the High Court. [521D] (a)  The  First Information Report is a  previous  statement which, strictly speaking, can be only used to corroborate or contradict the maker of it.  In the present case, the F.I.R. was  made  by  the father of the deceased to  whom  all  the

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important  facts of the occurrence were bound to  have  been communicated.   But,  though the F.I.R. was  given  about  4 hours after the incident, it was not mentioned therein  that the  appellant  had stabbed the deceased.  The  omission  of such  an important fact affecting the probabilities  of  the case  is relevant under s.11 of the Evidence Act in  judging the veracity of the prosecution case. [522D] (b)  The  evidence, shows that the deceased was  stabbed  by one  or the other accused; that the place of occurrence  had been shifted by the witnesses for the prosecution; that  the version  of the alleged eye witnesses is not  credible;  and that the alleged dying declaration is unreliable. [524B-D] (2)  The High Court, having found that the appellant and the other accused were individually  responsible for their acts, erred  in  finding  the appellants guilty on  the  basis  of common  intention,  of  an offense under  s.  302/34  I.P.C. [524FG] (3)  An appeal to this Court by the accused, in a case where his  acquittal had been converted into a conviction and  the sentence of life imprisonment was imposed upon him, lies  as a  matter of right under the Supreme Court  (Enlargement  of Criminal   Appellate   Jurisdiction)  Act,  1970,   and   no certificate of the High Court is necessary. [521A]

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 12  of 1972. From  the Judgment and Order dated the 1st May, 1971 of  the Madhya  Pradesh High Court in Crl.  Appeal No. 653 of  1970. 2-470SCI/75 520 R. K. Bhatt for the appellant. Ram  Punjwani,  H.  S. Parihar and 1.  N.  Shroff,  for  the respondent. The, Judgment of the Court was delivered by BEG, J. The sole appellant Ram Kumar Pandey, aged 45  years, was  tried  together with Suresh Kumar aged 20.  years,  and Mulkraj, aged 45 years, and Ramesh Kumar, aged 17 years,  on two charges framed against him.  These were :               "Firstly; That you on or about the 23rd day of               March 1970 at Raipur, did an act, to wit,  hit               Uttam  Singh with a knife with such  intention               or.  knowledge and under  such  circumstances,               that if by that act, you had caused the  death               of  Uttam Singh you would have been guilty  of               murder  and that you caused grievous  hurt  to               Uttam  Singh  by  the said act  and  that  you               thereby committed an offence, punishable under               Section 307 I.P.C. and;               Secondly  : That at the said time  and  place,               you or some other persons did commit murder by               intentionally  or knowingly causing the  death               of  Harbinger Singh and the said act was  done               in furtherance of the common intention of  all               and  thereby committed an  offence  punishable               under Section 302 read with Section 34 of  the               Indian Penal Code and within the cognizance of               the Court of Sessions." Suresh  Kumar,  Mulkraj and Ramesh Kumar,  were  accused  of ,offences punishable under Sections 307/114 and Section  302 read  with  Section  34  and 114  Indian  Penal  Code.   The Sessions’  Judge  of Raipur, who had tried the  case,  found Suresh  Kumar guilty of the murder by stabbing of  Harbinder

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Singh,  aged  about  16 years, and  sentenced  him  to  life imprisonment.  He convicted the appellant under Section  324 I.P.C.  only  for the injury inflicted on  Uttam  Singh  and sentenced  him  to  one year’s  rigorous  imprisonment,  but acquitted  him  of  other charges.  He  also  acquitted  the accused  Ramesh and Mulkraj of all charges  leveled  against him. The  State of Madhya Pradesh appealed against the  acquittal of  the  appellant  Ram Kumar Pandey  of  the  charge  under Section  302/34 I.P.C., and of Mulkraj and Ramesh  Kumar  of all  charges.   Suresh Kumar, the son  of  Mulkraj  appealed against  his conviction under Section 302  simplicitor,  but this appeal was dismissed by the High Court which maintained his  life  imprisonment.  The High Court  also  allowed  the States appeal against the acquittal of Ram Kumar Pandey  for injuries  caused  to Harbinder Singh,  and,  convicting  him under  Section  302/34  I.P.C., it sentenced  him-  to  life imprisonment.  It convicted Mulkraj of an offence punishable only under Section 323 I.P.C. and sentenced him to a fine of Rs.  200/-, and, in default of payment of fine, to  rigorous imprisonment  for two months.  It, upheld the  acquittal  of Ramesh Kumar Ahuja of all charges. This  appeal  has  come up before  us  after  a  certificate granted  by the High Court under Article 134(1) (c)  of  the Constitution, but the 521 certificate says that the appellant is entitled to it  under the   Supreme  Court  (Enlargement  of  Criminal   Appellate Jurisdiction)  Act, 1970, strictly speaking, no  certificate of  the High Court is required for such an appeal  where  an acquittal  has  been  converted  into  a  conviction  finder Section  302/34 I.P.C., and a sentence of life  imprisonment imposed  upon  an accused person.  Thus appeal,  in  such  a case, lies as a matter of right to this Court under the  Act of 1970. The  only question before us now is whether  the  appellant, who  had not appealed at all to the High Court  against  his conviction  under  Section  324 I.P.C.,  which  stands,  was rightly  convicted by the High Court under  Section  302/34, I.P.C.,  after  setting aside his acquittal for  the  graver offence  for  injuries resulting in the death  of  Harbinder Singh. The  well  settled rule of practice in a case of  an  appeal against an acquittal is that the appellate Court should  not interfere with the acquittal merely because it can take  one of   the  two  reasonably  possible  views   which   favours conviction.   But,  if the view of the Trial  Court  is  not reasonably  sustainable,  on  the evidence  on  record,  the appellate  Court will interfere with an acquittal.   If  the Appellate  Court  sets aside an acquittal and  convicts,  we have  to be satisfied, after examining the  prosecution  and defence cases, and the crucial points emerging for  decision from the facts of the case, that the view taken by the Trial Court,  on evidence on record, is at least as acceptable  as the  one taken by the High Court, before we could  interfere with the High Court’s judgment. The  prosecution case, as set out in the  First  Information Report  was ; Uttam Singh, PW 1, residing at Ganj Parao,  on the  first floor went home at about 3.30 p.m.  on  23-3-1970 and was preparing to have a bath when Suresh Ahuja came down from an upper storey of the house and complained that  Uttam Singh had been quarreling with members of his family.  Uttam Singh  requested him to take his seat and promised  to  look into  the matter.  This angered Suresh  Ahuja.   Thereafter, his, elder brother arrived and started quarreling with Uttam

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Singh’s  daughter.   At  this stage,  the  landlord  Mulkraj Ahuja,  accompanied by the appellant Ram Kumar  Pandey,  who lives  with his family in a side room on the  ground  floor, entered  and immediately gave him a blow on  his  eye-,brow. Uttam Singh fell down.  As Uttam Singh got up, the appellant struck  him with a knife from behind.  Mukhraj asked  Pandey to  run  down-stairs.  Both the accused tried to  run  away. Uttam  Singh  tried to catch them but failed.   Uttam  Singh when asked his son Harbinder Singh to make a telephone call. At  this  point, Suresh, son of Mulkraj,  stabbed  Harbinder Singh who fell down in the lane.  Uttam Singh saw  Harbinder Singh  lying near the house of Saudager Shah with an  injury on his chest which was bleeding profusely.  Harbinder  Singh was  carried  to a hospital on a cart  and  Gurcharan  Singh telephoned  the police.  Joginder Singh also came while  the injuries  were  being inflicted.   Uttam  Singh’s  daughters Amarit  Kaur  and Taranjit Kaur saw Uttam Singh  wrapping  a chadar an the wound of Harbinder Singh.  Raj Jaggi had  seen Harbinder 522 Singh  falling down.  The motive for this incident was  that Mulkraj  Ahuja,  the landlord, wanted his house  vacated  by Uttam Singh.  Harbinder Singh had died while being taken  to hospital. The  above mentioned First information Report was lodged  at Police  Station Ganj on 23-3-1970 at 9.15 p.m. The  time  of this  incident  is  stated  to be 5  p.m.  The  only  person mentioned as an eye witness to the murder of Harbinder Singh is  Joginder Singh.  The two daughters Taranjit Kaur, PW  2, and Amarjit Kaur, PW 6, are mentioned in the F.I.R. only  as persons  who saw the wrapping of the chadar on the wound  of Harbinder  Singh,  What is most significant is  that  it  is nowhere  mentioned  in  the F.I.R. that  the  appellant  had stabbed Harbinder Singh at all.  It seems inconceivable that by  9.15  p.m.  it would not be known to  Uttam  Singh,  the father of Harbinder Singh, that the appellant had  inflicted one of the two stab wounds on the body of Harbinder Singh. No  doubt,  an  F.I.R. is a previous  statement  which  can, strictly speaking, be only used to corroborate or contradict the maker of it.  But, in this case, it had been made by the father  of the murdered boy to whom all the important  facts of  the  occurrence, so far as they were, known up  to  9.15 p.m. on 23-3-1970, were bound to have been communicated.  If his  daughters had seen the appellant inflicting a blow’  on Harbinder  Singh, the father would certainly have  mentioned it in the F.I.R. We think that or missions of such important facts, affecting the probabilities of the case, are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case. Even  Joginder Singh, PW 8, was not an eye witness  of  the, occurrence.  He merely proves an alleged dying  declaration. He stated that Harbinder Singh (described by his pet name as "Pappi")  rushed out of his house by opening its  door,  and held his hand on his chest with blood flowing down from  it. He  deposed  that, when he asked Pappi  what  had  happened, Pappi had stated that Suresh and Pandey had injured him.  It is  clear from the F.I.R. that Joginder Singh had met  Uttam Singh  before  the  F.I.R. was made.  Uttam  Singh  did  not mention there that any dying declaration indicating that the appellant  had  also injured Harbinder Singh.  was  made  by Harbinder  Singh.   The  omission  to  mention  any   injury inflicted on Harbinder Singh by the appellant in the  F.I.R. seems  very significant in the circumstances of  this  case. Indeed,  according  to the version in the  F.I.R.,  Joginder Singh,  who was in the lane, is said to have  arrived  while

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Harbinder  Singh was being injured.  Therefore, if this  was correct, the two injuries on Harbinder Singh must also  have been inflicted in the lane outside. Satwant Kaur, PW 7, the wife of Uttam Singh, who claimed  to have  been an eye witness of the whole occurrence, was  also not  mentioned in the F.I.R. Suresh had, according  to  her, stabbed  Harbinder Singh on the right side of the  chest  at the door of the kitchen, and thereafter, Pandey was said  to have attacked him. 523 Again,  we find that Taranjit Kaur, PW 2, and Amarjit  Kaur, PW  6,  daughters  of  Uttam  Singh,  have  figured  as  eye witnesses of the whole occurrence including the stabbing  of Harbinder  Singh  by the appellant.  As  already  indicated, they are not mentioned in the F.I.R. as eye witnesses of the murder.  This is also very significant in the present  case. They  have  been mentioned only as witnesses of  wrapping  a chadar on the wound of Harbinder Singh who was then said  to be lying in the lane after the occurrence. In  order to explain how Harbinder Singh, said to have  been attacked near the kitchen of Uttam Singh on the first floor, was  found  lying  in  the lane in  a  pool  of  blood,  the persecution version is that, after the attack with knives by Suresh  and  the appellant, Harbinder Singh ran  and  rushed down  the steps into the lane.  It was pointed out that,  in view  of the nature of two injuries sustained, by  Harbinder Singh  and  the  medical evidence about  them,  it  was  not possible for Harbinder Singh either to have rushed down, or, in any case, to have made a dying declaration.  The injuries on  Harbinder  Singh  found by Dr. S.  C.  Vishnoi  were  as follows :               "(i) An incised wound on the left side of  the               chest placed anteriorly and measuring 1-1/2" x               1"  x 1-1/2" deep.  In the  fifth  intercostal               space-closed to the lateral border of the left               side  of  the sternum.  It had clean  cut  and               blood stains margins.               (ii)  An  incised wound on the right  side  of               back in the 8th intercostal space 2" below the               inferior angle of scapula.  It had measured 1"               x  1" x 1".  It had clean cut and  bloodstains               margins.    There  was  found  difficulty   in               probing through this wound".               The Doctor said about the first injury               "This  injury  had entered the cavity  of  the               right  ventrical.   It  was  a  very   serious               injury.  Right ventrical is an important  part               of the heart.  Generally such an injury  would               result  in an instantaneous death.  Injury  to               the  right ventrical and the  paricardium  had               resulted in profused hemorrhage".               He also said :               Injury  to the lobe of the right lung and  the               pleura  as found in this case will  result  in               shock.    Ordinarily  such  a   injury   would               immediately be fatal".               The  main  points for decision  which  emerged               from the evidence in the case were:               1.    Where was Harbinder Singh stabbed?               2.    Who  could have been the witness of  the               stabbing?               3.    Could  the  alleged  eye  witnesses   be               believed?               4.    Could  the  dying declaration,  said  to               have been made, to

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              524               Joginder Singh, be made the sole basis of  the               conviction  of  the  appellant  under  section               302/34  IPC  if the evidence ,of  alleged  eye               witnesses was to be discarded? As  regards  the place where the stabbing’ took  place,  the High  Court  had itself felt highly  dissatisfied  with  the manner  in which the case was investigated.  The site  plans do  not show any place where the blood was found.  if  blood marks  had  been shown and blood had been taken  from  spots where  it had fallen, it would have afforded  very  valuable evidence  on the question whether any stabbing of  Harbinder Singh  did take place at door of the kitchen and whether  he ran after that. The  site  plans did not show even where  the  kitchen  was. Therefore, we cannot know, by looking at these, whether  the three  ladies,  who are alleged to be eye witnesses  at  the trial,  could have seen the occurrence in the room in  which Uttam  Singh  was  injured as well as at  the  door  of  the kitchen.   Taking  all the relevant evidence on  this  point into account, it is far ’more likely that, as the  Sessions’ Judge  had guessed, the deceased had been stabbed by  Suresh twice  in the lane, probably once from the front  and  again while he fell or was trying to run away.  He could not  have moved  far  from the scene where he was stabbed.   The  High Court’s reasons to dislodge this inference are insufficient. As  regards  the second and third points, we are  unable  to give  credence  to  the version of  the  three  alleged  eye witnesses as they were not mentioned as eye witnesses in the F.I.R. made in the circumstances indicated above. Lastly, the alleged dying declaration is also not  mentioned in  the  F.I.R.  On the other  hand,  the  F.I.R.,  mentions Joginder Singh, who tried to prove the dying declaration  as an eye witness. It may be pointed out that the charge against the  appellant for  offences under Section 302/34 I.P.C. is also  defective inasmuch  as  it shows that either the  appellant  "or  some other person" committed the murder.  It does not show how or even mention that the appellant acted in concert with anyone else.  However, no grievance has been made of any defect  in the  charge or any prejudice to the appellant from  it.   We therefore, ignore it. It  may  also be mentioned that the High  Court  had  itself recorded the following finding:                "All the eye-witnesses have admitted that the               four  accused  did not come together  ;it  the               same  time  in  the room  where  the  incident               happened.   Suresh  Kumar came  in  that  room               first, Ramesh Kumar then entered the room  and               some time after they were followed by  Mulkraj               and  Ram  Kumar Pandey.  There is  nothing  to               show  that there was a preconcert between  the               four accused to commit any particular  offence               in  the  room.   It  appears  that  the  whole               incident took an ugly and unexpected turn  and               the most unfortunate result               525               was  that Harbinder Singh was killed.  We  are               of the view that the trial Court was right  in               reaching the conclusion that Ram Kumar  Pandey               and Suresh Kumar were individually responsible               for their acts". It is difficult, after this finding to follow the  reasoning of  the  High  Court in coming to the  conclusion  that  the appellant was guilty of an offence punishable under  Section

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302/34 I.P.C. Consequently,  we  allow  this  appeal  and  set  aside  the conviction  and  sentence  of the  appellant  under  Section 302/34  I.P.C.  If  the appellant  has  already  served  the sentence  awarded under Section 324 I.P.C., as is stated  on his behalf, he will be released forthwith. V.M.K.                        Appeal allowed. 526