IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 751 OF 2002

State of U.P. ... Appellant

Versus

Rashid and another ..Respondent

J U D G M E N T

J.M. PANCHAL, J.

This  appeal,  by  special  leave,  is  directed  

against judgment dated February 17, 2000, rendered by  

the Division Bench of the High Court of Judicature at  

Allahabad  in  Criminal  Appeal  No.  2541  of  1980,  by  

which judgment dated October 25, 1980, passed by the  

learned  IV  Additional  Sessions  Judge,  Meerut  in  

Sessions  Trial  No.  253  of  1980  convicting  the  

respondents  under  Section  302  read  with  Section  34

IPC and sentencing each of them to life imprisonment,  

has been set aside.

2. The facts emerging from the record of the case are  

as under:

Deceased  Ishwar  Singh  belonged  to  village  

Khalidpur, P.S. Mawana.  The two respondents are real  

brothers and they also belong to the same village.  The  

incident in question took place on March 22, 1980.  In  

the morning of the date of incident, Ishwar Singh was  

returning home at about 6.15 A.M., after easing himself  

in the fields situated on the east of the Rajbaha (canal  

drainage), which runs from north to south and which is  

located at a distance of about 200 yards from the Abadi  

of village Khalidpur.  For going to home he was required  

to cross the Rajbaha which was then dry.  When he was  

climbing  up  western  patri  of  Rajbaha  through  the  

footpath, both the respondents were standing inside the  

Rajbaha along the western strip and quite near to the  

aforesaid  footpath.   The  respondents  had  covered  

themselves with Chadars and on sighting Ishwar Singh,  

took out country made pistols, which they had wrapped  

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in Chadars  and fired one shot  each at  Ishwar Singh.  

Rishipal, Brijpal Singh, Karan Singh, Dhara Singh and  

Jaghir Singh were also returning towards the Rajbaha  

from the fields located on the east and witnessed the  

incident.  After having fired shots at Ishwar Singh, both  

the respondents ran away.  The aforementioned persons  

chased the respondents but the respondents could not  

be apprehended.  Therefore, they returned to the spot  

where Ishwar Singh was lying.  They found him to be  

bleeding  and  making  utterances.  A  cot  was  then  

brought  from the village  by Brijpal  Singh and Ishwar  

Singh was laid thereon.  He was thereafter taken to the  

village.   Subsequently,  Ishwar  Singh was placed in  a  

trolly of a tractor belonging to one Harbir Singh and was  

brought  to  Mawana.   On  way  to  Mawana,  near  the  

crusher of Vijai Singh, Ishwar Singh succumbed to his  

injuries.   The tractor,  therefore,  was stopped and eye  

witness  Rishi  Pal  scribed  a  report  of  the  occurrence.  

Rishi  Pal  along  with  others  carried  the  dead  body  of  

Ishwar Singh in the same tractor to P.S. Mawana and  

lodged FIR.

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3. In  view  of  the  contents  of  FIR  offences  were  

registered  and  investigation  started.   On  

completion of investigation both the respondents  

were  charge-sheeted  in  the  court  of  learned  

Magistrate.   As  the  offence  punishable  under  

Section 302 IPC is exclusively triable by a court of  

Sessions, the case was committed to the Sessions  

Court,  Meerut  for  trial.   The  learned Judge,  to  

whom the trial was made over, framed necessary  

charge against the respondents.  The charge was  

read over and explained to them.  However, they  

pleaded not guilty to the same and claimed to be  

tried.   Therefore,  the  prosecution  examined  

several  witnesses  including  eye  witnesses  and  

produced  documents  in  support  of  its  case  

against  the  respondents.   After  completion  of  

recording  of  evidence  of  prosecution  witnesses  

was  over,  the  learned  Judge  explained  to  the  

respondents the circumstances appearing against  

them  in  the  evidence  of  prosecution  witnesses  

and recorded their further statements as required  

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by  Section  313  of  the  Code.   In  further  

statements, the case of the respondents was that  

of total denial.

4. On  appreciation  of  evidence  adduced  by  the  

prosecution the  learned Judge held  that  it  was  

proved by the prosecution that deceased Ishwar  

Singh died a homicidal death.  After appreciating  

the evidence of eye witnesses, the learned Judge  

concluded that  their  evidence  was trust  worthy  

and  should  be  acted  upon.   All  the  three  eye  

witnesses  had  deposed  that  the  deceased  was  

fired  at  by  the  respondents.   Therefore,  after  

accepting their evidence, the learned Judge of the  

trial  court  convicted  the  respondents  under  

Section  302  read  with  Section  34  IPC  and  

sentenced each of them to life imprisonment.

5. Feeling  aggrieved  the  respondents  preferred  

Criminal  Appeal  No.  2541 of  1980 in  the  High  

Court of Judicature at Allahabad.  The Division  

Bench  of  the  High  Court  has  set  aside  the  

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conviction recorded by the trial court giving rise  

to the instant appeal.

6. This Court had heard the learned counsel for the  

parties at length and considered the documents  

forming part of the appeal.

7. A bare  glance  at  the  impugned  judgment  with  

reference  to  the  evidence  on  record  makes  it  

abundantly clear that the Division Bench of the  

High Court has decided the appeal on inferences  

and  probabilities,  ignoring  the  evidence  on  

record.  After noticing injuries found on the body  

of  the  deceased  at  the  time  of  conducting  

autopsy,  the  High  Court  has  concluded  on  

surmises and inferences that the intestines of the  

deceased  were  not  found  either  perforated  or  

lacerated and sufficient time must have elapsed  

before deceased succumbed to his injuries.  The  

High Court, after scrutiny of evidence of Medical  

officer, who performed Autopsy on the dead body  

of the deceased, has concluded that “The Medical  

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officer was of the opinion that these injuries were  

caused after the deceased had fired himself after  

defection”.  This Court has minutely and carefully  

gone  through  the  evidence  adduced  by  Doctor  

P.S. Khanna, who had performed autopsy on the  

dead  body  of  the  deceased.   This  Court,  after  

perusal  of  his  testimony,  finds  that  the  said  

witness has nowhere stated or suggested that the  

deceased had committed suicide.  It was not the  

case of the respondents at any stage of the trial  

that the deceased had committed suicide.  Thus,  

the High Court has made out a totally new case  

for the respondents, which is not permissible in  

law.  After observing that “no doubt the defence  

has  not  suggested  to  the  Medical  Officer”,  the  

High Court has, after considering the submission  

made and evidence, proceeded to record a finding  

that “it is apparent that in all probability, while  

deceased was in  the  process  of  easing,  he had  

sustained,  in the sitting posture,  these injuries  

on his person.  This is the reason why right side  

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of peritoneum, right side of chest and right thigh  

were involved.  It is a case of single shot and the  

entire  prosecution  version  is  belied  by  this  

medical  discrepancy.”   The above conclusion is  

reached by the High Court,  ignoring categorical  

statement made by Dr. Khanna that “the said two  

injuries caused to the deceased before death are  

possible by two times firing even if the same have  

been caused by one fire arm or by two separate  

fire arms”.  The knowledge of medical and human  

body is a matter of science.  A court of law, who  

has not acquired special knowledge and skill in  

medical  science,  would  not  be  justified  in  

brushing aside opinion of a medical officer, who  

has  performed  post  mortem  of  a  dead  body,  

without any evidence on record to the contrary  

supported by the opinion of  learned authors of  

standard  text-books.   The  cursory  manner  in  

which the medical evidence is appreciated by the  

High Court can hardly be approved by this Court.  

After  making  use  of  their  medical  knowledge,  

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what  is  asserted  by  the  learned  Judges  of  the  

High Court in the impugned judgment is that if a  

person is sitting and is in the process of easing,  

any shot fired upon such person from his right  

side would injure entire body, i.e., the chest, the  

thigh and abdomen because those organs would  

be in the close proximity of each other.  Further,  

the High Court  has observed that “In the facts  

and circumstances of the case, despite no cross-

examination of the Medical Officer, the above said  

situation  and  its  probability  cannot  be  denied.  

The submission made on behalf of the appellants,  

therefore, has sufficient force.”  Having held that  

the deceased sustained injuries while he was in  

the sitting posture, the High Court proceeded to  

record  another  finding  that  there  would  be  

serious discrepancy so far as testimonies of the  

eye witnesses about the manner of incident and  

place  of  occurrence  is  concerned  and  their  

presence at the time and place of incident would  

become suspicious.   In the light of this finding  

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the  High  Court  assessed  the  evidence  of  eye  

witnesses and came to the conclusion that they  

had not witnessed the incident at all.  Though it  

was never pleaded by the defence that place of  

incident was shifted by the prosecution the High  

Court,  by  queer  reasoning,  has  come  to  the  

conclusion  that  the  place  of  the  incident  was  

changed  and  that  the  eye  witnesses  were  not  

stating the truth.  The High Court has considered  

other  factors,  namely,  that  the  witnesses  had  

touched  Ishwar  Singh  only  after  a  cot  was  

brought at the scene of occurrence and none of  

them had made any attempt to stop the flow of  

blood nor any attempt was made at the house of  

the deceased to stop the bleeding and held that  

this  shows that  none of  the  eye witnesses was  

present at the scene of offence.  To say the least  

the judgment impugned in the appeal is based on  

surmises and inferences not warranted from the  

proved facts of the case.  The grievance made by  

the learned counsel for the appellant State that  

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while appreciating the evidence adduced by the  

parties,  the  High  Court  has  reconstructed  the  

evidence  and  decided  the  appeal  on  surmises,  

deserves serious consideration.  The appreciation  

of the evidence is not only faulty but is based on  

misconception of the facts.  In fact contentions of  

fact  and  law  have  been  left  undecided  and  

conclusions  arrived  at  are  erroneous.   Non-

consideration  by  the  High  Court,  of  the  

statements  made by  the eye  witnesses  in  their  

sworn testimony recorded before the Trial Court  

and  drawing  conclusions  by  considering  

irrelevant  factors,  amounts  to  exercising  

jurisdiction  under  Section  378  of  the  Code  of  

Criminal Procedure with material irregularity and  

illegally.   The  High  Court  has  acquitted  the  

respondents  by  ignoring  the  probative  value  of  

FIR and reliable testimony of eye witnesses and  

without  considering  material  on  record.   The  

judgment impugned is full of inconsistencies and  

consists  of  faulty  reasoning.   Therefore,  this  

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Court is of the firm opinion that the impugned  

judgment will have to be set aside.

8. When the higher forum decides to set aside the  

judgment it has two courses open.  One is to first  

consider the evidence adduced by the prosecution  

as was done in the instant case by the trial court  

and to render a finding in the appeal arising from  

special leave scope of which is not the same as  

envisaged under Section 378 of  the Code.  The  

second option available to the higher forum is to  

remit  the  matter  to  the  first  appellate  court  to  

rehear  the  appeal  on  merits.   As  the  scope  of  

proceedings under Article 136 of the Constitution  

is  limited,  re-appreciation  of  evidence  and  

recording  findings  by  this  Court,  as  if  it  were  

exercising powers under Section 378 of the Code,  

would  deprive  one  of  the  parties  to  prefer  

statutory appeal before the first appellate court.  

Such a course is not warranted in the facts of the  

case.  Therefore, this Court is of the opinion that  

interest of justice would be served if the appeal is  

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remitted to the High Court for decision on merits  

after hearing the learned counsel for the parties.

9. For  the  foregoing  reasons,  the  judgment  dated  

February  17,  2000,  rendered  by  the  Division  

Bench  of  the  High  Court  of  Judicature  at  

Allahabad in Criminal Appeal No. 2541 of 1980  

acquitting the respondents,  is  hereby set  aside.  

The  appeal  is  remitted  to  the  High  Court  for  

deciding  the  same  afresh  after  taking  into  

consideration evidence on record and hearing the  

parties.   As  the  appeal  is  old  one,  this  Court  

requests the High Court to dispose of the appeal  

as early as possible and preferably within three  

months from the date of receipt of writ from this  

Court.   The appeal  accordingly stands disposed  

of.

…………………………J. [B. Sudershan Reddy]

…………………………J.

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[J.M. Panchal]

New Delhi; November 03, 2009.

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