REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 909-910 OF 2002

STATE OF U.P.                         .. Appellant

VERSUS

MUNNI RAM & ORS.         ..Respondents

J U D G M E N T

SURINDER SINGH NIJJAR, J.

1. These  appeals  by  the  State  of  U.P.  are  directed  

against the judgment of the High Court of Judicature at  

Allahabad dated 7.9.2001 rendered in Criminal  Appeal  

No. 642 of 1988 and Criminal Revision No. 611 of 1988.  

By the aforesaid judgment, the High Court set aside the  

judgment of the trial court convicting Munni Ram, Maya  

Ram,  Ram Ugrah  and  Ram Ajore  (respondents  herein)  

under Section 304/34, 147 and 323 IPC as well as under  

Section 24 of the Cattle Trespass Act, 1871.  The criminal  

revision  challenging  the  acquittal  of  Bhagirath  under  

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Section  308/304  read  with  section  149  IPC  was  also  

dismissed.  

2. Briefly  stated,  the  prosecution  case  was  that  on  

14.6.1983,  in  the  afternoon,  Sita  Ram  (hereinafter  

referred to  as  PW-2)  had noticed  that  the  buffaloes  of  

Ram Ugrah (hereinafter referred to as respondent No: 3)  

and Ram Ajore (hereinafter referred to as respondent No:  

4) had trespassed into his field and were damaging the  

sugarcane crop.  He, therefore, drove them out and was  

taking them to the cattle pound in the village.  He had  

only gone a short distance when Munni Ram (hereinafter  

referred to as respondent No: 1) met him and enquired  

the  reason  why  PW-2  was  driving  away  his  buffaloes.  

PW-2  told  him  that  the  buffaloes  had  damaged  his  

sugarcane crop, therefore, he would deposit them in the  

cattle pound.  On hearing this, respondent No: 1 went  

back to his house.  When PW-2 reached near the house  

of Ilakedar, village Pradhan, respondent No: 1, Maya Ram  

(hereinafter referred to as respondent No: 2), respondent  

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No:  3,  respondent  No:  4  and  Bhagirath  (hereinafter  

referred to as respondent No: 5) confronted him.  They  

were armed with lathies.  They took away the buffaloes  

from  PW-2  and  assaulted  him  with  their  respective  

weapons.  The hue and cry raised by PW-2 attracted his  

sister-in-law, i.e. Singari Devi, his son Ramesh and his  

brother  Ram  Kewal  to  the  spot.   When  they  tried  to  

intervene, they were also assaulted by the respondents.  

In fact, other witnesses who came to the spot were also  

assaulted.   In  this  short  assault,  PW-2,  Singari  Devi,  

Ramesh, Hari Ram and Ram Kewal sustained injuries on  

vital parts of their bodies.  

3. The  condition  of  Singari  Devi  and  Ramesh  being  

critical, they were brought to the District Hospital, where  

they were admitted.  All the five injured witnesses were  

medically  examined  by  Dr.  G.P.  Agarwal  (PW-10)  from  

10.00 PM on wards. Ramesh Chandra was first medically  

examined at the District Hospital, Basti on 14.6.83 but  

was later admitted to the Medical College, Lucknow as  

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his  condition  became  critical.  He  succumbed  to  his  

injuries on 16.6.1983 within three hours after reaching  

the hospital.  The post mortem examination on his dead  

body was conducted on 16.6.1983 at 3.00 PM by Dr. V.P.  

Singh (PW-8).  

4. Singari Devi also died on 17.6.1983 at about 4.10  

AM at District Hospital, Basti.  The post mortem on her  

dead body was conducted on the same day by PW-10 at  

4.00 PM.   

5. The FIR was registered on 15.6.1983 at 7.10 AM by  

Avadh Prasad (PW-1).  The distance of the police station  

is  13 Kms.  from village  Raunakala  where  the  incident  

had taken place.  Initially, the case was registered under  

Section 147, 308 and 426 IPC. After the death of Singari  

Devi and Ramesh, it was converted to Section 147, 308,  

426, 304 IPC and Section 24 of the Cattle Trespass Act,  

1871.  On completion of the investigation, charge sheet  

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was duly submitted and the case was transferred to the  

Court of Sessions and Trial Judge.   

6. In  support  of  its  case,  the  prosecution  examined  

PW-1,  who  registered  the  FIR  of  the  incident  in  the  

following  morning;  PW-2,  an  injured  witness,  Mohd.  

Shami (PW-3), Dr. V.M. Agarwal (PW-4), PW-8 and PW-

10,  who  had  examined  all  the  injured  witnesses  and  

conducted autopsy on the deceased persons.  PW-5, Tila  

Mohd.  Khan  is  Head  Moharrir.   He  had  prepared  the  

written  report  and  also  prepared  the  check  report.  

According to him, he had completed the other formalities  

pertaining  to  the  FIR.   PW-6,  Om Prakash and PW-7,  

Umesh Babu had filed their  affidavits.   They had only  

escorted  the  dead body to  the  mortuary.   PW-9 Vidya  

Vinod  Pathak  is  Sub-Inspector  Police  Station,  Kotwali,  

Basti.  He prepared the inquest memo.  He also arrested  

respondent  No:  1,  3  and  5  and  took  them  in  police  

custody.   PW-11  Chhangur  Singh  had  prepared  the  

panchayatnama of the dead body Ramesh Chandra.  Shiv  

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Saran Singh, PW-12 is the investigating officer.  This in a  

nutshell is the entire prosecution evidence.   

7. The defence of the respondents is a cross version of  

the incident.  According to them, the incident occurred  

when PW-2, Hari Ram, Ram Kewal, Ramesh and Gulam  

Nabi were trying to remove a branch of the Jamun tree,  

which had been cut from the tree and fallen in the field of  

the respondents.  The incident occurred according to the  

respondents at about noon time.  Respondent No: 2 had  

gone  to  the  field  empty  handed  and  requested  the  

aforesaid persons not to remove the fallen branch of the  

Jamun tree.  On being so requested, they started beating  

him.   His  alarm  attracted  respondent  No:  1  and  

respondent  No:  3,  who  came  to  the  spot  armed  with  

lathies.   PW-2,  Hari  Ram,  Ram  Kewal,  Ramesh  and  

Gulam  Nabi  also  attacked  respondent  No:  1  and  

respondent No. 3.  In the mean time, family members of  

both the sides gathered at the spot and started hurling  

brickbats  on  each  other.   Consequently,  both  sides  

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suffered  injuries.   Respondents  also  got  their  injuries  

medically examined at the District Hospital.   

8. After medical examination, they had gone to lodge  

the report at the Police Station, Kotwali, Basti.  Gulam  

Nabi, who is the son of the Village Pradhan was already  

present there.  It was at then that they were arrested.  In  

order to prove their version, they have also produced four  

defence witnesses.  Ram Dulare Tripathi, DW-1 produced  

the  application  sent  by  the  accused  party  to  the  

Superintendent of Police containing the defence version.   

9. Upon examination of the entire evidence led by the  

parties,  trial  court  convicted  and  sentenced  the  

respondents as follows:-

(i) Munni  Ram,  Maya  Ram,  Ram  Ugrah,  Ram  

Ajore  and Bhagirathi  under  Section 147 and  

323.  They were sentenced to R.I.  for 1 year  

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under  Section  147  and  1  year  R.I.  under  

Section 323 IPC.

(ii) Respondents  Munni  Ram,  Maya  Ram,  Ram  

Ugrah  and  Ram  Ajore  were  also  convicted  

under  Section  304 read with Section  34 IPC  

and sentenced to R.I. for 10 years and a fine of  

Rs.  5,000/-  each.   In  default  of  payment  of  

fine,  they  were  sentenced  to  further  2  years  

R.I.   

(iii) Bhagirathi  was,  however,  acquitted  of  the  

offences under Section 308/304 IPC read with  

Section 149.   

(iv) All the other accused were also acquitted of the  

offences under Section 308 and 149.   

(v) All the five accused were also convicted under  

Section  24  of  the  Cattle  Trespass  Act  and  

sentenced to R.I. for 1 month only.   

10. Against the aforesaid conviction and acquittal, the  

accused respondents herein approached the High Court  

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by  way  of  Criminal  Appeal  No.  642  of  1988  and  the  

complainants challenged the acquittal of respondent no:  

5 by way of a Criminal  Revision No. 611 of 1988. The  

High Court by its judgment dated 7.9.2001 allowed the  

aforesaid  Criminal  Appeal  and  acquitted  all  the  

respondents.  The Criminal Revision No. 611 of 1988 filed  

by  the  complainants  was  dismissed  maintaining  the  

acquittal of the respondent no: 5.   

11. In  the  present  appeal,  the  State  of  U.P.  has  

challenged the common judgment on various grounds.   

12. We have heard the learned counsel for the parties.  

Mr.  Ratnakar  Dash,  appearing  for  the  State  of  U.P.  

submitted  that  the  High  Court  has  erroneously  

disbelieved the clear and consistent evidence of the eye-

witnesses  who  were  also  injured  witnesses.   PW-2,  

according to him had clearly stated that on 14.6.1983 at  

about 3.30-4.00 PM, he was distributing kerosene from  

the P.D.S. shop which had been allotted to him.  He went  

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to answer the call of nature and asked PW3 to distribute  

the kerosene in his absence.  He was carrying some water  

in a lota with him for cleaning himself after going to the  

toilet.  At that time, he saw the buffaloes of respondent  

no: 3 and 4 were damaging his sugarcane crop.  He had  

driven out the cattle and was taking them to the cattle  

pound in the village.  Particular reliance was placed on  

the evidence by PW-2.  According to the learned counsel,  

this witness had given a detailed and consistent version  

as to how the buffaloes of the accused persons namely  

respondent no: 3 and 4 had damaged his sugarcane crop.  

He  had  also  narrated  the  sequence  about  taking  the  

buffaloes  towards  the  cattle  pound  in  the  village.  

Thereafter, he had narrated how the five accused armed  

with lathies had assaulted him.  They had abused him  

and also told him that they will finish him off.  He had  

also further narrated the sequence of events as to how  

the other members of the family were also attacked.  The  

witnesses  have  completely  supported  the  prosecution  

version with regard to the treatment of  injury and the  

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subsequent  death  of  Ramesh and Singari  Devi.   PW-3  

had also given a consistent account of the entire incident  

which led to the death of two persons.  These witnesses  

had  also  denied  the  cross-version  suggested  by  the  

defence,  the  respondents  herein.   According  to  the  

learned counsel, the injuries suffered by the defence were  

superficial  and  self  inflicted.   Learned  counsel  further  

submitted that  the High Court  wrongly  disbelieved the  

entire prosecution version on the ground that the injuries  

suffered by the respondents had not been explained by  

the prosecution.  

13. On  the  other  hand,  learned  counsel  for  the  

respondents submitted that the High Court has rightly  

rejected the prosecution version for a number of cogent  

reasons.  The injuries suffered by the respondents cannot  

be said to be superficial.  The FIR has been clearly ante-

timed and ante-dated.  The genesis of the incident has  

been  suppressed  and  a  wholly  false  version  has  been  

projected in the FIR.  According to the learned counsel,  

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the  complainants  were  in  fact  the  aggressors.   The  

incident  had  taken  place  in  the  field  belonging  to  the  

respondents when they had objected to the complaints  

removing the illegally cut branch of the Jamun tree.   

14. We have carefully considered the submissions made  

by the learned counsel for the parties and gone through  

the judgment of the High Court.  The High Court upon a  

very careful appraisal of the entire evidence notices that  

this being a case of cross-versions, it was the duty of the  

Court  to  ascertain  which  of  the  two  versions  were  

genuine and probable.  Taking up the evidence of PW-1,  

the High Court concludes that the very presence of this  

witness  is  dubious.  In  coming  to  the  aforesaid  

conclusion, the High Court has taken into consideration,  

the inconsistent versions of PW-2 and PW-3.  It is also  

noticed that the name of PW-1 is not even mentioned in  

the FIR as a witness.  The High Court also notices that  

the story about the kerosene oil being distributed by PW-

2 is also concocted.   According to the High Court,  the  

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prosecution  had  failed  to  produce  any  record  of  the  

distribution  of  kerosene  either  by  PW-2  or  any  other  

individual.   

15. In view of the very presence of PW-1 being shaky,  

the High Court concluded that in these circumstances,  

no authenticity can be attached to the version given by  

him in the FIR.  The High Court further notices that PW-

1  had  tied  to  cover  up  the  lacunae  in  the  FIR.  

Subsequently,  he  admitted  in  cross-examination  that  

some portion of the FIR was narrated on the information  

given by PW-2 and PW-3.  He was also unable to give any  

cogent description of the sequence of assault on injured.  

The High Court concluded that his presence on the spot  

in  the  circumstances  was  rendered  doubtful.   His  

evidence was that of an interested witness who had deep  

affinity with PW-2 and the son of village Pradhan, who  

was instrumental in the arrest of the respondents.  His  

evidence was, therefore, discarded by the High Court.   

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16. Taking  up  the  evidence  of  PW-2,  the  High  Court  

disbelieved the story that he had gone to answer the call  

of  nature.   The  High Court  also disbelieved that PW-1  

was present at the spot when PW2 entrusted the job of  

distribution of kerosene oil to PW-3.  Upon a complete  

analysis of the entire evidence, the High Court concluded  

that the story about PW-2 leaving the kerosene shop for  

answering the call of nature is a made up story and does  

not  bear  scrutiny.   He  even  feigned  to  have  defended  

himself  with  the  vessel  (lota)  which  had  got  damaged  

during the process.  The High Court took due notice of  

the  fact  that  neither  any  blood-stained  cloth  nor  the  

damaged  vessel  (lota)  were  taken  into  custody  by  the  

investigating authorities.  The High Court concluded that  

this  witness  had deliberately  introduced  Avadh Prasad  

(PW1) in the case.  He did not distribute any oil on the  

day of the incident.  The story about driving the buffaloes  

to the cattle pound was disbelieved as the animals were  

found going towards the house of the witness PW-2.  The  

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evidence  given  by  PW-3  has  also  been  discarded  for  

similar reasons.   

17. The High Court, thereafter, notices that the defence  

version cannot be discarded.  The injuries suffered by the  

respondents were not superficial in nature.  Three of the  

respondents were suffered one injury each on their head.  

The  High  Court  further  notices  that  the  three  

respondents  had actually  gone  to  the  police  station to  

make  a  complaint  about  the  assault  on  them  by  the  

complainants.   Therefore,  it  cannot  be  said  that  the  

defence  version is  not  probable.   The High  Court  also  

concluded that merely because the prosecution witnesses  

had suffered more injuries than the respondents, would  

not be sufficient to hold that the respondents were the  

aggressor  party.   In  other  words,  the  defence  version  

cannot be discarded only on the basis of lesser number of  

injuries having been suffered by them.  The High Court  

concluded that the prosecution version is so mixed up  

with  falsehood  that  any  truth  or  semi-truth  is  not  

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possible to be distinguished therein.  The High Court also  

notices that in this case, the evidence of the prosecution  

witnesses is not corroborated by any other independent  

witnesses.  

18. In our opinion, the conclusions reached by the High  

Court  cannot  be  said  to  be  such  which  has  led  to  a  

miscarriage  of  justice.   The  High  Court  has  taken  a  

possible view which could legitimately be taken on the  

basis  of  the  inconsistencies  in  the  evidence  of  the  

prosecution.   The High Court  has acted in accordance  

with  the  well-known  principles  that  if  two  views  are  

possible  on the  evidence  adduced,  one  pointing  to  the  

guilt of the accused and the other to innocence, the view  

which  is  favourable  to  the  accused  is  normally  to  be  

adopted.   

19. It is well settled that in an appeal by special leave  

under Article 136 of the Constitution, against an order of  

acquittal passed by the High Court, this court would not  

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normally  interfere  with  a  finding  of  the  fact  based  on  

appreciation of evidence, unless the approach of the High  

Court  is  clearly  erroneous,  perverse  or  improper  and  

there has been a grave miscarriage of justice.  

20. We are of the considered opinion that in this case,  

the High Court has merely corrected the omissions in the  

appreciation of evidence committed by the trial court in  

convicting the respondents.  The High Court has taken a  

view which is plausible as well as possible.  In light of the  

aforesaid findings, we find no merit in these appeals and  

the same are accordingly dismissed.      

……………………………..J. [B.Sudershan Reddy]

……………………………..J. [Surinder  Singh  Nijjar]

New Delhi; October 26, 2010.           

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