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PETITIONER: STATE OF UTTAR PRADESH

       Vs.

RESPONDENT: RAM KISHAN & OTHERS

DATE OF JUDGMENT13/02/1976

BENCH: GOSWAMI, P.K. BENCH: GOSWAMI, P.K. BHAGWATI, P.N.

CITATION:  1976 AIR 2016            1976 SCR  (3) 379  1976 SCC  (3) 449  CITATOR INFO :  R          1992 SC 125  (3)

ACT:      Appeal by State against acquittal-lnterference with the decision of  the High  Court by the Supreme Court under Art. 136  of   the  Constitution-If  the  High  Court  reads  the prosecution evidence  by introducing an extraneous gloss for the purpose  of its  conclusion,  resulting  in  failure  of justice. this Court should interfere.      "Material prejudice"  to the  accused-Alteration of the conviction to  section 326/34  in appeal  when the  original charge and  conviction  were  under  s.  302/149  is  not  a "material prejudice" Criminal Procedure Code (Act V of 1898- Sections 222, 223 and 225)

HEADNOTE:      The accused  and the  deceased are  close relatives, as per the following pedigree:-                        Ramcharan (1) Ram Khelawan (2)       Balram (3)               Khuddi (4) Vishwanath     Shankar    Kanker  Channu  Shivnath Jagannath   (PW)SI         S2        S3      S4         (PW2)                                   (Deceased) Sheo Murat   Ram Kishan  Shobha    Moti Lal     Bhagwantia  (Acd) SI      (Acd) S2  (Acd) S3  (Acd) S4     (Sister) Dl Shyam Lal  (Acd)      Vishwanath, Kanker, deceased Channu, Jagannath. accused Ram Kishan  along with his mother and sister Bhagwantia were living in  the ancestral  house at village Bhiwanipur, while the rest  lived in  a nearby  separate house.  On March  18, 1969, Vishwanath  tried to  pacify the  quarrel between  his brother Kankar’s  wife and  Bhagwantia his cousin-sister and when she  refused to  heed to  his words, he gave one or two slaps to  Bhagwantia. The  real brothers of Bhagwantia viz., Ram Kishan,  Shobha, Moti  Lal and Shyamlal s/o Ram Krishan- all accused,  went the  next day  to Vishwanath’s  house and demanded an  explanation for beating Bhagwantia and wanted a settlement. Since  Vishwanath said there was nothing in fact to be  settled, Ram  Kishan  instigated  the  rest  to  beat Vishwanath. Shobha  caught hold  of  Vishwanath  while  Sheo Murat dealt  knife blows  which  resulted  in  two  grievous

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incised injuries.  Channu who  came to the rescue was caught hold of  by Shyam  Lal and  Moti and  Sheo Murat dealt knife blows causing five fatal incised wounds and two abrasions to which he  succumbed. On the above version of the incident by the injured  Vishwanath,  PW  1  in  the  complaint  and  in evidence at  the trial, which was unerringly corroborated by PWs 9.  10. 13  and unshaken  in the  cross-examination, the Sessions Court  convicted Sheo Murat under s. 302/149 I.P.C. for causing the death of Channu and under s. 307 /149 I P.C. for attempting to murder Vishwanath, though the charges were under s. 302, 307 and 148, I.P.C. and sentenced him to death under s.  302, I.P.C..  seven years’  rigorous  imprisonment under s.  307 I.P.C. and to two years’ rigorous imprisonment under s.  148. I.P.C.  Accused Ram  Kishan. Shobha. Moti Lal and Shyamlal,  the respondents  in this Court were convicted under s.  302/149 I.P.C.,  under s.  307 read  with  s.  149 I.P.C. and  s. 147  I.P.C. They were sentenced to one year’s rigorous imprisonment  under s.  147 T.P.C.  to seven year’s rigorous  imprisonment   under  s.  307/149  I.P.C.  and  to imprisonment  for  life  under  s.  307  /149.  The  accused appealed to  the High  Court and there was a reference under s. 374 Cr. P.C. for the confirmation of death sentence. By a common judgment, the High Court (i) set aside the conviction and sentences 380 of all  the present  respondents and also that of Sheo Murat under s.  148, I.P.C.; (ii) maintained the convictions under s. 307  I.P.C. and  also under s. 302 I.P.C. but altered the death sentence  to one of life imprisonment and rejected the reference.      This Court  rejected the State’s special leave petition against the  alteration of  the death  sentence but  granted special leave against the acquittal of the respondents alone and issued non-bailable warrants.      Allowing the  appeal, and  convicting the  accused  and sentencing them  to different  terms with the benefit of set off under s. 428, Cr.P.C. (Act 2 of 1973), tho Court, ^      HELD: (1)  It is  well-established that  in  an  appeal against acguittal,  this Court  is slow  to interfere  under Art. 136  of the  Constitution with the decision of the High Court. The  possibility  that  it  may  just  be  reasonably feasible for  the Court  to take  a different  vie v  of the evidence from  that of  the High Court is not the test in an appeal against acquittal. [383-D-E]      (2) In  the instant  case,  the  injuries  on  the  two victims  are   "res  ipso   loquitor’  and   tell-tale.  The prosecution case  that Vishwanath  was caught  by Shobha and Channu was  caught  hold  of  by  Motilal  and  Shyamlal  is corroborated by  the medical  evidence.  None  of  the  stab wounds are on any part of the hands or arms which would have necessarily been caused. if the victims were not caught hold of by  a person  or persons, while they were attacked with a knife. It  would be  unnatural to  expect that  the  victims would not  have exercised  their natural  instinct  of  self preservation by  trying to  stave off  the stab  injuries by raising their  hands. And  in that  process if they were not caught hold  of by  some person or persons, there would have been one  or two  injuries on  the hands  or arms.  The High Court completely  ignored this  most relevant  and important aspect in the prosecution, when it observed:      "It is  not at  all clear from the prosecution evidence      whether Shobha  k kept  on holding  Vishwanath till the      very end  i.e. till  both the  knife injuries  had been      caused to him, or whether he let go his hold as soon as

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    Sheo Murat started the attack".      "There  is  nothing  in  the  prosecution  evidence  to      indicate what  order  those  injuries  were  caused  to      Channu and whether or not the injuries on the back were      caused first". This  erroneous  view  taken  by.  the  High  Court  of  the prosecution  evidence   adduceed  in   this  case   and  the introduction by  the High  Court of  an extraneous gloss for the purpose of its conclusion viz.,      "After reaching  the  house  of  Vishwanath  they  (the      accused persons)  entered  into  a  conversation  which      became heated  and  ultimately  ended  in  exchange  of      abuses". resulted in failure of justice. [383G-H, 384C-E]      (3) No  prejudice is  caused in the instant case to the accused by  alteration of  the conviction to sections 326/34 although they  had been  originally charged under s. 302/149 and ss.  307/149, I.P.C.  On  the  particular  fact  of  the prosecution case  which clearly  pointed to participation by the respective  accused with  tho two attacks and which they had to meet in the trial. [385F-G]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: CRIMINAL  APPEAL  No. 253 of 1971.      Appeal by  Special leave  from the  Judgment and  order dated 11.2.1971  of the  Allahabad High  Court  in  Criminal Appeal No. 1285/70.      O. P. Rana, For the appellant      Shiv Pujan Singh, for the respondent      The Judgment of the Court was delivered by 381      GOSWAMI,  J.-This   appeal  by  special  leave  at  the instance of  the State  of  Uttar  Pradesh  is  against  the judgment of acquittal of the High Court of Allahabad.      Balram, Ram  Khelawan and  Rhuddi are three sons of one Ram Charan.  The injured  Vishwanath (PWI),  Shankar, Kankar and deceased Chhannu are sons of Balram. Accused Sheo Murat, Ram Kishan,  Shobha and  Moti Lal  are sons of Ram Khelawan. Accused Shyam  Lal is  the son  of accused  Ram Kishan. Shiv Nath (PW 2) e and Jagan Nath are sons of Bhuddi. Thus all of them have  branched off  from Ram Charan and all the members have  got   share  in   their  ancestral  house  at  village Bhiwanipur. In  this  ancestral  house  Vishwanath,  Kankar, Chhannu, Jagan  Nath and  accused Ram  Kishan along with his mother and  married younger  sister Bhagwantia  resided. All others along  with the  rest of  the four accused lived in a nearby separate house.      on March  18,  1969,  certain  quarrel  ensued  between Bhagwantia and  Kankar’s wife  Patia.  Vishwanath  tried  to pacify both  the quarrelling women. Since Bhagwantia did not heed to  Vishwanath’s words,  the latter gave her one or two slaps. Ram  Kishan and  his brothers were not in the village on  that  day  but  learning  about  this  incident  on  the following day  accused Sheo  Murat, Ram Kishan, Shobha, Moti Lal and  Shyam Lal  went to Vishwanath’s place at about 7.00 or 8.00  P.M. What followed may be described in the words of the in jured Vishwanath:           "On the  next day  at 7 or 8 P.M. I was sitting at      the door  of my  osara. My younger brothers, Kankar and      Chhannu, were  sitting at  a short  distance from me at      the well.  Sheonath, my  cousin, was  also sitting near      Kankar and  Chhannu. A burning lantern was hanging from

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    a  bamboo   pole  outside  the  osara;  and  there  was      sufficient light  from it.  Ram  Kishan,  Shobha,  Sheo      Murat, Shyam  Lal and  Moti,  accused  present  in  the      court, came there, Ram Kishan asked from me as to why I      had slapped  Bhagwantia and  that I should come out and      settle up. I stood up and said, "Brother, what will you      settle  up".   At  this   Ram  Kishan   instigated  his      companions saying,  "Beat the  salas". At  once  Shobha      caught hold of my hand and Sheo Murat dealt knife-blows      to me.  Chhannu, my  younger brother,  came to save me,      whereupon Shyam  Lal and  Moti caught  hold of  him and      Sheo  Murat  started  giving  knife-blows  to  him.  On      hearing their  instigation, Mohan,  Phool Chand,  Budhi      and others  came over  there and  began to forbid them.      Chhannu and  I fell  down on  sustaining injuries. Then      all the five accused persons ran away with the knife."      What has  been stated  above  by  Vishwanath  has  been repeated by  Shiv Nath  (PW 2),  Hansla Prasad (PW 9). Phool Chand (PW  10) and  Sohan (PW  13). The story given by these witnesses remains  absolutely unshaken  in the scanty cross- examination by  the defence.  Indeed there  was little or no cross-examination with regard to the incident itself. 10-L522SCI/76 382      Deceased Chhannu had the following external injuries on his person  as stated  by Dr.  U.  P.  Singh  who  held  the autopsy:           (1)  Incised stab  wound 1/2X1/3",  on right  side                chest, 1"  medical to right nipple going into                the chest cavity.           (2)  Incised stab  wound 1/2"x  1/4" x  1" to  the                right of  left nipple  and 1" below it, going                into the chest cavity.           (3)  Incised  stab   wound  1/2"x  1/4"  abdominal                cavity deep,  on lower  part  of  right  side                abdomen.           (4)  Incised stab  wound 1/2"x1/4"on lower part of                abdomen, 3" above the joint of hip-bones.           (S)  Incised stab  wound 1/2"x1/4"  deep, on  left                hip.           (6)  Incised stab  wound  1/2"x1/4"  chest  cavity                deep, on left side back, 6" below scapula.           (7)  Abrasion 1/2"x  1/2" lateral  aspect of right                elbow.           (8)  Abrasion 1/2"x1/2" on lateral aspect of right                hand. Internal examination  revealed that  the cartilage  of fifth rib had  been cut under injury No. (3). There were punctured wounds ill  the chest cavity in relation to injury Nos. (1), (2) and  (6). Right vertrical of heart had a punctured wound 1/4"x1/4" and  the pericardial  cavity contained  blood. The upper lobe  of left  lung had  a punctured wound 1/2" X 1/4" in  relation  to  injury No. 2. In the opinion of the Doctor death  was  due  to  shock  and  haemorrhage  resulting from injuries to heart and lungs.      Another Doctor  Siddiqui (PW  5)  found  the  following injuries on the person of Vishwanath:-           (1)  Incised wound  1/4"x1/8"x  1  1/2"  deep,  on                front side  of lower  part of  neck, directed                downwards, backwards and leftwords. The wound                was in  the middle  of the  neck and 1" above                the bone.  On coughing air passed through the                wound.           (2)  Incised wound 1/2"x1/8"x3" or more than this,                abdominal cavity  deep, 1  1/2" above  and to

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              the left of umbilious. Direction of wound was                backwards,  slightly   upwards  and   towards                centre of abdomen. The injuries  were fresh  and described  by  the  Doctor  as dangerous.      All the five accused were charged under section 302/149 IPC for  causing the death of Chhannu and also under section 307/149 IPC  for attempting to murder Vishwanath. While Sheo Murat was  charged under  section 149  IPC  the  other  four accused  were  charged  also  under  section  147  IPC.  The Sessions Judge  convicted accused  Sheo Murat  under section 148, 307  and 302  IPC. He  was  sentenced  to  death  under section 302  IPC, to seven years rigorous imprisonment under section 307  IPC, and  to two  years  rigorous  imprisonment under section  148 IPC. Accused Ram Kishan, Shobha, Moti Lal and Shyam Lal (the present respondents) were convicted under section 302/149  IPC, section  307 read with section 149 and section 383      147 IPC.  These four  accused  were  sentenced  to  one year’s rigorous  A imprisonment  under section  147 IPC,  to seven years’ rigorous imprisonment under section 307/149 IPC and to  imprisonment for life under section 302/149 IPC. The sentences of  all the  accused were to run concurrently. The accused appealed  to  the  High  Court.  There  was  also  a reference under section 374, Criminal Procedure Code, to the High Court  for confirmation  of the  death sentence on Sheo Murat. Both  the matters  were heard  together by the High 1 Court and  a common  judgment was  delivered on February 11, 1971. The  High Court  maintained conviction and sentence of the accused  Sheo Murat  under  section  307  IPC  and  also maintained his  conviction under section 302 IPC but reduced the sentence  to imprisonment  for life.  The conviction and sentence of  Sheo Murat under section 148 IPC were, however, set aside.  The conviction  and sentence  of the  four other accused (the present respondents) were set C aside.      The  State   prayed  for   special  leave  against  the rejection of the reference by reducing the death sentence to imprisonment for  life but this Court rejected the same. The State’s  special   leave  application  with  regard  to  the respondents’ acquittal was, however, admitted on October 13, 1971 and  non-bailable warrants were issued against them. We are, therefore,  not  concerned  in  this  appeal  with  the conviction of  accused Sheo  Murat, who was the assailant of the deceased as well as of Vishwanath.      We  have   to  consider  whether  the  High  Court  has committed a  grave and  palpable  error  in  acquitting  the respondents resulting in miscarriage of justice.      It is  well-settled that in an appeal against acquittal this Court  is slow  to interfere  with the  decision of the High  Court,   even  though   it  has  interfered  with  the conviction by  the trial  court, where  the same  is reached after a  proper appreciation  of the  entire  evidence.  The possibility that it may just be reasonably feasible for this Court to  take a different view of the evidence from that of the High  Court  is  not  the  test  in  an  appeal  against acquittal. Even  so, we  are unable  in this case to sustain the order  of the  High Court  for the  reasons, which  will presently follow.      We have already quoted the evidence of Vishwanath which is unerringly  corroborated by  all the other eye witnesses. Both the  trial court as well as the High Court believed the evidence. Indeed  the High  Court has  observed and,  in our opinion,  rightly   that  "there  is  no  infirmity  in  the prosecution case". We then find that the High Court has read

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the evidence  in a  rather unusual  way  which  is  at  once obvious when  we  peruse  the  judgment.  We  are  not  told wherefrom the  High Court  could describe  the  evidence  as follows:-           "After reaching  the house of Vishwanath they (the      accused persons)  entered  into  a  conversation  which      became heated  and  ultimately  ended  in  exchange  of      abuses". The High Court also observed that-           "it is  not  at  an  clear  from  the  prosecution      evidence whether Shohha kept on holding Vishwanath till      the very end i.e. 384      till both the knife injuries had been caused to him, or      whether he  let go  his hold  as  soon  as  Sheo  Murat      started the attack". The High Court further observed that-           "there is  nothing in  the prosecution evidence to      indicate in  what order  those injuries  were caused to      Chhannu, and  whether or  not the  injuries on the back      were caused first". The High Court further gave unusual      importance to the statement of PW 13 when he deposed in      cross-examination to the following effects:-           "I cannot remember whether the two persons who had      caught hold  of Chhannu  had held him from the front or      from the  back or  from the  side. Further,  I  do  not      remember whether  they were  holding him each with both      his arms or whether each of them held him only with one      arm. I  do not re collect whether Sheo Murat had caused      injuries to  Chhannu from  the front  side or  from the      back side".      We are  unable to appreciate how the evidence of PW 13, who could not remember certain details, could help the court in coming  to any  conclusion for  the purpose of displacing the clear and unambiguous prosecution evidence.      The injuries  on the two victims are res, ipso loquiter and tell-tale.  Accused Shobha  caught hold  of Vishwanath’s hands and  Sheo Murat  gave him  two stab  blows, one on the neck and  the other  on the  abdomen. When  deceased Chhannu advanced in  order to  save  Vishwanath  he  was  caught  by accused Shyam  Lal and  Moti Lal and Sheo Murat gave as many as six stab injuries in quick succession. None of these stab wounds are on any part of the hands or arms which would have necessarily been  caused if the victims were not caught hold of by  a person  or persons  while they were attacked with a knife. It  would be  unnatural to  expect that  the  victims would not  have exercised  their natural  instinct  of  self preservation by  trying to  stave off  the stab in juries by raising their  hands. And in that process if they were not - caught hold  of by  some person  or persons there would have been one  or two  injuries on  the hands or arms. This would clearly go to show that the story that Vishwanath was caught by Shobha  and Chhannu was caught by Moti Lal and Shyam Lal, as deposed to by the PWs, stands corroborated by the medical evidence.  The  High  Court  completely  ignored  this  most relevant and  important aspect  in the  prosecution case but felt satisfied to acquit the accused on the sole ground that there  was   no  evidence  to  show  whether  Shobha  caught Vishwanath all  the time  when the  two blows were given and also whether  Moti Lal  and Shyam  Lal were catching hold of deceased Chhannu  during the  entire period  of the assault. The High  Court particularly  felt in that direction because PW 13  being an  independent witness  could not  re  collect certain things  to which  we have already referred to above. The injuries would clearly show that the victims were caught

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hold of  by a  Person or  persons when  these were inflicted upon them.      We are  clearly of  opinion that  this is  a completely erroneous view  of the  prosecution evidence adduced in this case  resulting  in  failure  of  justice.  We  are  further satisfied that if the High Court had not read 385 the evidence  by introducing  an extraneous  gloss  for  the purpose of  its A conclusion it could not have acquitted the accused.      It is  also evidence that the accused came in a body to challenge  Vishwanath   for  the  previous  day’s  incident. Although the four respondents were unarmed, Sheo Murat had a knife with  him. There  is nothing to show from the evidence that Vishwanath gave any provocation to the accused persons. He only  replied to  the challenge  by saying "Brother, what will you  settle up"  ? At  this Ram  Kishan instigated  the other accused  persons saying  "beat  the  salas".  At  once accused Shobha  caught held  of Vishwanath’s  hands and Sheo Murat  stabbed  him  twice  with  his  knife.  Assunung  the respondents had  no earlier  knowledge  about  Sheo  Murat’s carrying a  knife, from  this moment  they came to know that Sheo Murat  had a  knife with  which he  had already stabbed Vishwanath. What did they then do when deceased Chhannu came to the  aid of Vishwanath to save him from further assault ? Now Moti  Lal and  Shyam Lal caught hold of Chhannu and Sheo Murat inflicted  several stab  blows in quick succession. It is, therefore,  clear that Moti Lal and Shyam Lal shared the common intention with Sheo Murat in inflicting stab injuries to Chhannu by participating in the assault.      Sheo Murat has been convicted under section 302 IPC. We may only  give these  two accused  Moti Lal  and  Shyam  Lal benefit of  doubt with  regard to  participation  with  Sheo Murat in  the common intention to cause death of Chhannu. It is, however,  absolutely impossible  to relieve  them of any liability whatsoever  in connection  with the  stab injuries which were facilitated by their catching hold of Chhanu when Sheo Murat  was inflicting  the stab  wounds.  There  is  no escape from  the conclusion  on this  evidence that Moti Lal and Shyam  Lal shared  at least  the common  intention. with Sheo Murat  to cause  grievous hurt under section 326 IPC. A clear case  has been  established against  both the  accused persons under  section  326/34  IPC.  They  are,  therefore, convicted under  section 326/34  IPC and  sentenced to  four years’ rigorous imprisonment.      With regard  to accused Ram Kishan he merely instigated by saying "beat the salas". He is the person who started the affair by  challenging Vishwanath  and also  instigating the other accused  persons to  beat. From  this alone  it is not possible to  attribute to  him any common intention to cause more than  simple assault.  He is,  therefore, found  guilty only under  section 323/109 IPC. He is, therefore, convicted under  section   323/109  IPC   and  sentenced  to  rigorous imprisonment for one year.      Accused  Shobha,  who  caught  hold  of  Vishwanath  to facilitate the  two stab  injuries on  him by Sheo Murat, is also guilty  under section  326/34 IPC.  We are  prepared to give him  the benefit  of doubt  only with regard to section 307 IPC  but the evidence clearly establishes the case under section  326/34  lPC.  He  is  accordingly  convicted  under section 326/34  IPC and  sentenced to  four years’  rigorous imprisonment. 386      We should  observe that  no prejudice  is caused to the accused by  alteration of  the conviction  to section 326/34

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although they  had been  originally  charged  under  section 302/149 and  section 307/149  IPC on the particular facts of the prosecution  case which clearly pointed to participation by the  respective accused in the two attacks and which they had to meet in the trial.      Since the respondents are detained in jail in pursuance of the non-bailable warrants issued by this Court on October 13, 1971,  at the  time of granting special leave, they will be  entitled   to  the  benefit  of  section  438,  Criminal Procedure Codes,  and that  period shall  be set off against the sentences which we have passed in this apepal.      In the  result the  judgment of  the High  Court is set aside, the  appeal is  allowed and  the four  accused  stand convicted  and   sentenced  as   aforesaid  subject  to  the observations mentioned above. S.R.                                    Appeal allowed. 387