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PETITIONER: STATE OF U.P.

       Vs.

RESPONDENT: ASHOK KUMAR & ANOTHER

DATE OF JUDGMENT02/02/1979

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA KOSHAL, A.D.

CITATION:  1979 AIR  874            1979 SCR  (3)   1  1979 SCC  (3)   1  CITATOR INFO :  F          1989 SC1205  (18)

ACT:      Penal Code-s.  302-Supreme Court-When  would  interfere With order  of acquittal  in special leave-Witnesses claimed they identified  the assailant  from a distance of 150 yards on a moonlight night-If could be believed.

HEADNOTE:      The respondents  were charged  with an offence under s. 302, I.P.C.  The prosecution  case was  that on the night of occurrence (which  was a  moonlight night)  the deceased and the prosecution  witnesses attended  a drama  in the Ramlila Grounds of  the village  and when the deceased, after taking two samosas  and tea,  was returning  home  some  time  past midnight, the  respondents shot  him dead  and that this was seen by  them from a distance of 150 yards from the scene of occurrence.      The trial  court, believing  the  prosecution  version, convicted the respondents. On appeal the High Court rejected the prosecution  story and  acquitted both  the respondents. The State came in appeal to this Court by special leave.      Dismissing the appeal, ^      HELD: It  is well-settled  that this  Court, in special leave,  would  not  normally  interfere  with  an  order  of acquittal unless  there are  cogent reasons  for doing so or unless there  is a  gross violation  of any procedure of law which results in serious miscarriage of justice. [2H]      Having regard to the glaring defects in the prosecution story this  is  not  a  case  in  which  this  Court  should interefere with the order of acquittal. [3B]      In the  present case,  though it  was a  moon-lit night according to  the almanac the moon would have covered three- fourths distance  on the  night of  occurrence. Even  in the moonlight it  would have been difficult for the witnesses to identify the  assailants; even  if they did, the possibility of  mistake   in  identification  could  not  be  completely excluded. According to an authority, when the moon is at the quarter, it  is possible  to recognise persons at a distance of from  21 ft; in bright moonlight at from a distance of 23 to 33  ft. and at the very brightest period of the full moon

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at a distance of from 33 to 36 ft. In tropical countries the distance for moonlight may be increased. Therefore, it would not have been possible for the eye witnesses to identify the assailants from a distance of 150 yards. [3E-G]      After the  assailants had given a call and fired at the deceased the  witnesses would  not have  flashed  the  torch light,  as   suggested  by   the  prosecution,  and  exposed themselves to the risk of being shot at. Even if the torches were lighted,  in view  of the  distance, it  would not have been possible  for the  witnesses to identify the assailants with certainty. [4B]      Secondly, the  medical  evidence  had  shown  that  the stomach of  the deceased  was empty and the large intestines too were empty. Therefore, the evidence 2 of the  witnesses that  the deceased  took two samosas after the drama  at midnight  and before  the attack is completely falsified by  medical evidence.  Another prosecution witness stated that  the deceased  having had  stomach ulcers  never took any  food at  night. Apparently until the deposition of the first  witness was  complete  the  prosecution  did  not realise the  gravity  of  the  statement  made  by  him  and deliberately introduced  a change  on a vital issue which by itself is  an important  circumstance throwing  doubt on the prosecution case.  While witnesses  may  lie,  circumstances would never. Tho evidence of the doctor, based on conclusive evidence cannot be belied. [4F-H]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 166 Of 1976.      Appeal by  Special Leave  from the  Judgment and  Order dated 21-4-75 of the Allahabad High Court in Criminal Appeal No. 2776 74 and Referred No. 76/74.      D. P. Uniyal, and M. V. Goswami for the Appellant.      D. Mookherjee, O. P. Tewari, S. S. Srivastava and K. C. Jain, for Respondent No. 1.      R. K. Garg, V. J. Francis and D. K. Garg for Respondent No. 2.      The Judgment of the Court was delivered by      FAZAL ALI  J.-The respondents had been convicted by the Additional Sessions Judge, Banda under section 302 of Indian Penal Code  and sentenced  to  imprisonment  for  life.  The respondents thereafter  filed an appeal to the High Court of Allahabad which  after a  full and complete consideration of the evidence  came to a finding of fact that the prosecution has not  proved  its  case  and  accordingly  acquitted  the respondents. The  High Court  rejected the  prosecution case mainly on  two grounds.  In the  first place,  it held  that having regard  to the  circumstances and  the distance  from which the  witnesses saw  the accused,  it was difficult for them to identify the accused. Secondly, the High Court found that in  view of  the medical evidence which showed that the large intestines  of the  stomach were absolutely empty, the evidence of the eye-witnesses could not be believed. Against the order  of acquittal  passed by  the High Court the State came up  to this  Court by special leave and after obtaining the same the case has been placed before us for hearing.      The facts of the case have been set out in the judgment of the  High Court  and it is not necessary for us to repeat them again.  It is  well settled  that this  Court would not normally interfere  with an  order of  acquittal in  special leave unless there are cogent reasons for doing so or unless

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there is  a gross  violation of  any procedure  of law which results in serious miscarriage of justice. We have heard 3 counsel for  the parties  and have gone through the judgment of the Sessions Judge and of the High Court. It is true that High Court  has not made an attempt to discuss the intrinsic merits of  the evidence  of  the  eye-witnesses  but  having regard to  the glaring  defects appearing in the prosecution case we are in agreement with the ultimate view taken by the High Court.      According to  the prosecution  the deceased  along with P.Ws. 1  & 2  had gone  to Atarra  to witness a drama in the Ramlila Grounds. The party reached Atarra at about 9 o’clock and the  drama finished  at  about  12  o’clock.  Baura  and Chanada P.Ws.  2 and  5 were  also with  the deceased  Budhi Bilas when  he was  returning from  the Natak. It is alleged that at  about 12.30 a.m. the respondent-Ashok Kumar fired a few shots  which hit  the deceased  as a  result of which he died instantaneously.  The two  eye-witnesses P.Ws.  1 and 2 admittedly saw  the firing  from a  distance  of  about  150 yards, as  would appear from an examination of the site plan Ka-23 and  which is  endorsed by  P.W. 1  who stated  in his evidence that  he has  given the  detail of  the place  from where they  saw the  occurrence to the Investigating Officer at  the   spot.  The   first  question   which   falls   for consideration is as to whether or not the witnesses would be in a  position to identify the respondents from such a large distance at  night. It  is true that it was a moon-lit night but from a reference to the almanac it would appear that the moon had  covered 3/4th  distance on the night of occurrence and was  to set  at 3.23  a.m. Even though there may be some moon light  at that night, it is difficult for the witnesses to  identify  the  respondents  or  even  if  they  did  the possibility  of   mistake  in   identification   cannot   be completely excluded.  In this  connection, we may refer with advantage to  the following  passage appearing  in Dr.  Hans Gross’s Criminal Investigation at page 185:           "By moonlight  one can recognise, when the moon is      at the  quarter, persons at a distance of from 21 feet,      in bright  moonlight at  from 23 to 33 feet; and at the      very brightest  period of  the full moon, at a distance      of from  33 to  36  feet.  In  tropical  countries  the      distances for moonlight may be increased."      The opinion  of Gross referred to above fully fortifies our conclusions  that it  was not possible for the witnesses to have  identified the respondents even in moonlight from a distance  of   about  150  yards.  In  these  circumstances, therefore, the  High Court  was fully  justified in  holding that it  was not  possible for the eye-witnesses to identify the respondents  from such  a long  distance on the night of the 4 occurrence. The prosecution suggested that the witnesses had lighted their  torches and  it was  in the  light of torches coupled with moon light that identification was possible. In the first  place, we find it difficult to believe that after Ashok Kumar  had given a call and fired, the witnesses would dare to  flash the  torch light and expose themselves to the risk of  being shot  themselves. Secondly,  even if  torches were lighted, in view of the large distance, it would not be possible for  the witnesses to identify the respondents with absolute certainty.      Another important  circumstance which appears to clinch the issue  is the  medical evidence  in the case. It appears from the  evidence of  Dr. Pillay, P. W. 7 who performed the

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post-mortem that  the small  intestines were  distended with gas and in the end of the small intestines liquid faeces was present. The  doctor further says that large intestines were empty. Doctor  also found  the stomach  to be  empty.  These facts are  also mentioned  in the  post-mortem report.  This clearly shows  that the  deceased must  have been  shot at a time when  he had  either not  taken any  food at all or the entire food  if  taken  was  fully  digested  and  left  the stomach. P.W.1 had stated in his evidence that he along with his uncles  and the  deceased took  tea and ate samosas. The deceased had  taken two  samosas. This meal was taken by the deceased and the witnesses after the Natak ended, that is to say, at  about 12 O’clock in the night, because the evidence of P.W.1  is that  the Natak started at 9 p.m. and continued for  three  hours.  If  the  evidence  of  this  witness  is believed, then  it is  completely falsified  by the  medical evidence which  shows that  the stomach  was empty. In other words, if  the witness  is believed,  the position  would be that the  deceased would  have been  shot only a few minutes after he  had taken  two samosas  and a  cup of tea. In that case the  stomach would not be empty. Perhaps realising this difficulty the prosecution through the mouth of P. Ws. 2 and 3 tried  to  effect  a  deliberate  embellishment  in  their evidence by making them depose that the deceased Budhi Bilas had taken  only milk  when he  started. P.W.  3 goes  to the extent of  saying that  deceased Budhi  Bilas was  suffering from stomach ulcers and he never took any food at night. The story of  the deceased  having  taken  samosas  is  given  a complete go-back  by other  eye-witness, P.W.  2. Indeed, if these witnesses  were present  at the time when the deceased has  taken   something  we  should  not  have  expected  any discrepancy of  this kind  on this  important aspect  of the matter. Either  deceased took  food or  he did  not take any food. This  fact would  be known to his son, P.W. 1 and also to P.W.  2. We cannot understand what is the explanation for the two  different versions  given by P.Ws. 1 & 2 unless the idea 5 was to  bring the evidence, at least, of P.W. 2 in tune with the medical  evidence. Until  the deposition  of P.W.  1 was complete, the prosecution did not realise the gravity of the statement made  by P.W.  1 that  the deceased  has taken two samosas and a cup of tea shortly before the occurrence. This deliberate attempt to introduce a change on a vital issue is by itself  a very  important circumstance which throws doubt on the prosecution case. It is manifest that whereas witness may lie  circumstances never lie. The evidence of the doctor is based  on conclusive circumstantial evidence which cannot be belied,  and therefore  an attempt  has been  made by the prosecution to  introduce  improvements  in  explaining  the lacuna present  in the  case. Apart  from this  we have gone through the  evidence of P.Ws. I & 2 and their evidence also is full  of discrepancies  as pointed out by the High Court. Taking therefore  an overall  view of  the picture,  we hold that this  is not  a case  in which we should interfere with the order of acquittal passed by the High Court.      For the  reasons given  above, we  confirm the order of the High Court and dismiss this appeal. The respondent No. 1 who is  in jail  is directed  to be  released forthwith  and respondent No. 2 will be discharged from his bail bonds. P.B.R.                                     Appeal dismissed. 6