Ram Jag and Others v. the State of U.P.

Judgment

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 110 of 1970. Appeal by Special Leave (ram the Judgment and Order dated the 8th January 1970 of the Allahabad High. Court (Lucknow Bencl1) at Lucknow in Criminal Appeal No. 634 of 1967. A. N. Mui/a and R. L. Kohli. for the appellants. 0. P. Rana, for the respondent. The Judgment of the Court was delivered by CHANDRACHUD J.-The appellants, eleven in al!, were acquitted hy the Additional Sessions Judge, Gonda, but the order of acquittal was set aside in app~al by the High Court of Allahabad (Lucknow Bench). The High Court has convicted the appellants under sections 302, 325 and 323 read with section 149 and under section 147 of the Penal Code. They have been s~ntcnced to life i1nprisonment 'or the offence of n1urder and to shorter terms for the other offences. This appeal by special leave is directed against that judgment.

The charge against the appollants is that on the e\·cning of September 17, 1966 they formed an unlawful :issembly and in prosecution of the common object of that assembly fl RAM JAG I'. U.P. STATE (Chandrachud, /.) 11 they caused the death of Hausla Prasad and injuries to Rampher, Dwarika and Lakhu. On September 17, 1966 which was a Kajri Tij day Rampher .and the deceased Hausla Prasad had gone to a temple which is at a distance about 8 miles from the village of Jhampur where they lived. · They left the temple late in the afternoon along with Dwarika and Lakhu whom they met at the temple. Soon al'ter they crossed a river near the village of Singha Chanda they are alleged to have been .. attacked by the appellants. Dwarika brought a buliock cart from a village called Gauhani and thereafter the four injured persons proceeded to theTarabganj police station.

On theway Rampher dictated the First Information Report to a boy called Gorakhnath and soon thereafter the report was lodged at the police station at about 12·30 at night. Hausla Prasad succumbed to his injuries just before the party reached the police station. He had 12 injuries on his person, Lakhu and a swelling Rampher had received 6 injuries while Dwarika had received 9 injuries. The injuries received.by these persons includmg llausla Prasad were mostly contused lacerated wounds and abrasions. -The prosecution exa1nined Ra1npher, Dwarika, Lakhu, Ran1 Shanker and Ram Kripal (P. Ws 2 to 6) as eye-witnesses to the occurrence. The learned Additional Sessions Judge held that these w1tne,sses were not wort~y of credit and acquitted the appellants. The High Court was not impressed by the e\·idence of Ram Shanker and Ram Kripal but accepting the evidence of Rampher, Dwarika and Lakhu it convicted the appellants of the offences of which they were charged.

Learned counsel for the State, when called upon, raised a fundamental objection to our entertaining the various questions raised on behalf of the appellants. He contends that the sole question in the appeal is whether the High Court was right in accepting the evidence of the three eye-\vitnesses and therefore this Court, in the exercise of its po\vers under article 136 of the Constitution, ought not to re-appreciate that evidence in order to detennine whether it can sus1ain the conviction of the appellants.· The question as regards the power of this Court in criminal appeals by special leave from the judgments of High Courts setting aside acquittals has been discussed in numerous cases but the precise scope of that power is still being debated as a live issue. In case after case, counsel have contended that this Court does not under article 136 fcnction as yet another court of appeal and therefore on matters of appreciation of evidence, the final word must rest with the High Court.

Considering the staggering mass of work which is gradually accumulating in this Court, such a rnle will bring welcome relief. But it is overstating the rule to say that the verdic; of the High Court on questions of fact, including assessm.ent of evidence, cannot ever be re-opened in this, Court. 12 [ 1974 J 3 S.C.L The true position is that if the High Court has set aside an order of acquittal, this Court in an appeal under article 136 from the judgment of the High Court will examine the evidence only if the High Court has failed to apply correctly the principles governing appeals against acquittal. Jn a series of decisions, High Courts had taken the view that upon an appeal from an acquittal the appellate court is .not entitled to interfere with the decision of the trial court on facts unless it has acted perversely or otherwise improperly or has been deceived by fraud. (See Empress of India v. Gayadin(I); Queen-Empress r. Robins01~2); Deputy Legal Remembrancer of Bengal 1·.

Amulya Dwan (3); King-Emperor v. Deboo Singh (4); King-Emperor; 1·. U Sa11 Win lS).) A contrary line of cases had, on the other hand, ruled tliat the Code of Criminal Procedure drew no distinction between an appeal from an acquittal and an appeal from a conviction, and no such distinction could be imposed by judicial decision. (See Queen-Empress r. Prag Dat(6); Queeu-Empress '" Bib/111/i Bhusan Bit('); Depllly Legal Remembrancer, Behar and Orissa v. Mutukdhari Singh (8); Re Sinnu Go1111da11 (9); Q11een-Empress. v. Karigoll'da(IO). Jn Sheo Swarup and Ors. v. The King-Emperor,(11) these conflicting decisions were canvassed before the Privy Council· but it saw no useful purpose in examining the long list of decisions.

Observing that the answ~r to the question in issue would depend upon the construction of the provisions in the Code of Criminal Procedure, the Prvy Council noticed sections 404, 410, 417, 418 and 422, examined section 423 and concluded that the Code draw no distinction between an appeal against an acquittal and an appeal against a conviction, as regards the powers of the High Court.

Speaking for the Judicial Committee, Lord Russell observed : ''There is, in their opinion, no foundation for the view, apparently supported by the judgments of some Courts in Jridia, that the High Court has no power or jurisdiction tn reverse an order of acquittal on a matter of fact, except in cases in which the lower Court has "obstainately blundered," or has "through incompetence, stupidity or perversity" reached such "distorted conclusions as to produce a positive miscarriage of justice," or has in some other way so conducted or misconducted itself as to produce a glaring miscarriage of justice, or has been tricked by the defence so as to produce a similar result. "Sections 417, 418 and 423 oftlle Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded,. and to reach the conclusion that upon that ·evidence the order of acquittal should be reversed No limitation should be placed upon that power, unless it be found

1(1881) I. L. R. 4 Allahabad 148. 6. (1898) I.LR. 20 Allahabad 459.

2(1894) I.LR. 16 Allahabad 212. 7, (1890) l.L.R. 17 Calcutta 485.

3(1913) J.L.R. 18 C.W.N. 666. 8. (1915) 20 C.W.N. 128,

4(1927) I.LR. 6 Patna 496. 9. (1914) I.LR. 38 Madras 1028, 1034.

5(1932) I.LR. 10 Rangoon 312. 10. (1894) I.LR. 19 Bombay 51. 11. 61 !. A. 398. RAM JAG v. U.P. STATE (Clzandrachud, I.) 13 expressly stated in the Code, But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as(!) the views of the trial judge as to the credibility of the witnesses; (2) the presumption of 1nnocence 111 favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial: (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate Court in disturbing a finding of 14 fact arrived at by a judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordaance with rules and principles well known and recognised in the adn1inistration of justice."

The amplitude of the power of the High Court in appeals against acquittal was reiterated by the Privy Council in Nur Mahomet! Emperor.( I) While holding that in appeals against acquittals the High Court has full power to review at large all the evidence and to reach the conclusion that upon that evidence the order of acquittal should be re\"ersed, the Privy Council had pointed out that before reaching its conclusions on facts the High Court tnust ahvays give proper weight to certain n1atters like the presutnption of innocence, the benefit of doubt etc. This qualification upon a power otherwise wide and unlin1ited \vas no 1norc than differently expressed by this Court ln Sura) pa/ Singh ''- The State(2). by saying that though it is well-established tJ1at the High Court has full power to revie\.V' the evidence onwhich the order· of acquittai was founded, "it is equally well settled that thepresumplion of innocence of the accused is further reinforced by his acquittnl: by the trial court, and the findings of the trial court which had theadvantageof seeing the \Vitnesses and hearing their evidence can be reversed only for very substantial and con1pelling reasons".

The phrase r '·substantial and con1pelling reasor1s" becan1e altnost a part, as it ,,·ere. or codified law and was repeatedly used by this Court with emphasis in cases like Ajmer Si111:'1 '" State ~f Punjab(3), P11ra11 v. State of Punjab (4), Alier Raja Khima 1•. Tlie State of Saurashtra (S), Bhag11·a11, Das v. State of Rajastha11 (6) and Balbir Singh v. State of P1111jab. Cr Judgments of several High Courts in appeals against acquitt:ils would bear evidence of the magic spell which the phrase had cast and how it had coloured their approach to the evidence before them. The apparently rigorous requirement of the rule of "substantial and compelling rea·· sons"' and to so1ne extent its tediu1n \Vas relieved by the use of \rords "~.ood and sufficiently cogent reasons" in Tu/siram Ka1111 v. Tl1e .State,(B} In A her Raja Khima's case(S), the formula of "substantiol \Ind com- I. A.!,R. 1945 P.C. 151. 2. !l952j S.C.R. 193. J. [195.l] S.C.R. 418. 4. AJ.R. 1953 S.C. 459. 5, [1955j 2 S,C.R. 1285.

6, A.LR. 1957 S. C. 589

7AJ,R. 1957 S,C. 216. 8, A.LR. 1954 S.C. l. SUPRE~IE COURT REPORTS I 1974 l 3 s.c.R. pelling reasons" though adopted, was treated as synonymous with 06strong reasons"'. This. stalemate was resolved by this Court in Samrat Singh '" Slate of Rajastlian]'>· Observing that "In recent years the words 'compelling reasons' have become words of magic incantation in every .appeal against acquittal", the Court said: "The words were intended to convey the idea that an appellate court not only shall bear in mind the principles laid down by the Privy Council but also must give its dear reasons for coming to the conclusion that the order of acquittal was wrong."

The principles laid down by the Privy Council in S!reo S11•arup's case(2) were expressly approved and it was held that "the different phraseology used in the judgments of this Court, such as, li) •substantial and compelling reasons', (ii) 'good and sufficiently cogent reasons', and (iii) 'strong reasons' are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion ; but in doing so it should not only consider every matter on record having a bearing on the question of fact and the reasons given by the court below in support of its order of acquittal in its arriving at a conclu- ~ion on those facts, but should also express those reasons in its judgment, which lead it to hold that the a.cquittal was not justified."

The principles governing appeals against acquittal as explained in Samvat Singlz"s case have been adopted and applied by this Court in numerous cases over the past many years. No case has struck a discordant note though one or the other requirement of the well-established principles has been high-lighted more in some judgments than in -0thers. These, however, are variations in style and do not reflect a varia- 1ion in approach. In /Iarbans Singlz r. State of Pzmjab(!), a four-Judge Bench observed: . "What may be called the golden thread running through all these -Oecisions is the rule that in deciding appeals against acquittal the Court -0f Appeal must examine the evidence with particular care, must examine also the reasons on which the order of acquittal was based and should interfere with the order only when satisfied thatthe \·iew taken by the acquitting Judge is clearly unreasonable." In Ramabhupala Reddy and Ors. v. The State of.A11dhra Pradesh(4), the same thought was expressed by saying :

"If two reasonable conclusions can be reached on the basis of the evidence on record, the appellate court should not disturb the findings of the trial court." Very recently, in Shiraji Saflr- .brao Bobade a11d Anr. v. State ofMaharashtra(S), this Court rejuvenated the suspect formula of "substantial and compelling grounds" thus : ·"We are clearly in agreement. ..... that an acquitted accused should not be put in peril of com·iction on appeal sav~ \\here substantial and compelling grounds exist for such a course ....... Jn law there arc no fetters on the plenary power of the Appellate Court to review the whole c\idence on which the order of acquit!al is founded and, indeed, it . I, [1961]3 s.C.R.120. 2. 61 I. A. 398. 3. [1962) I Supp. S.C.R. 104. • 4. A.1.R. 1971 S.C. 460. 5. A.l.R. 1973 S.C. 2622. ll II y G .• II ' .. RA~.1 JAG v. U.P, STATE -(Cha11drachud, J.)

J s. has a duty to scrutinise the probative material de 1wi·o, informed, howe,·er, by the weighty thought that the rebuttable innocence attributed to the accused having been converted int<> an acquittal the homage our jurisprudence owes· to individual liberty constrains the higher court not to upset the holding without \ery convincing reasons and comprehensive_ consideration." The principles governing appeals against acquittal are thus firmly established and the. issue cannot now be re-opened. The Code of Criminal Proeedure by section 423,. has accorded parity to appeals against conviction and appeals against acquittal; the Code makes no distinction between the powers of the appellate court in regard to the two categories of appeals and therefore the High Court has powers as full and wide in appeals against acquittal as in appeals against conviction.

Whether the High Court is dealing with one class of. appeals or the other, it must equally have regard to the fundamental principles of Criminal Jurisprudence that unless the statute provides to the contrary there is a presumption of innocence in favour of the accused . and . secondly, that the accused is entitled to the benefit of reasonable doubt. Due ·regard to the views of the trial court as to the credibility of witnesses. in matters resting on pure appreciation of evidence and the studied slowness of the appellate court. in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing and hearing the· witnesses, where s1ich Sl!eing and healing can be useful aids to the assessment of evidence, are well-known principles which generally informs the administration of justice and govern the exerdse ·of all appellate jurisdiction. They are seJf:imposed limitations. on a power otherwise plenary ·and like all voluntary restraints, they constitute valuable guidelines.

Such regard and slowness must find their reflection in the appellate judgment, which can only be ifthe appellate court deals with the principal reasons that become influenced the order of acquittal and after examining the evidence with care giYes its own reasons justi- · fying a contrary view of the evidence. It is implicit in ibis judicial process that if two views of the evidence ate reasonably possible, tbc finding of acquittal ought not to be disturbed .. If after applying these principles, not by their mechanical reciiation in the judgment, the High Court has reached the conclusion th·at the order of acquittal ought to be reversed, this Court will not reappraise evidence in appeals brought before it under article I 36 of the Constitution. In such appeals, only such examination of the evidence would ordinarily be necessary as is required to see whether the High Court has applied the principles correctly.

The High Court is the final court · of facts and the reserve jurisdiction of this Court under article !36, though couched in.wide tenns, is by long practice exercised in exceptio_nal cases where the High Court has disregarded the guide-lines set by this Court for deciding appeals against acquittal or "by disregard to the forms of legal process or some violation of the principles of natural justice or otherwise, substantial and grave injustice has been done" or.where the finding is such that it shocks the conscience of the Court (See Sa11wat Singh & Ors. I'. State of Rajast/zan(I); _Harbam Singlz & (I) [1961] 3 S.C.R. 120, 134-135 • .' 16 . SUPl\EMI! COURT REPORTS [ 1974] 3 S.C.lt. Anr. "·State of Punjab (I); Ramab/zupala Reddy and Ors., v. The State of Andhra Pradesh(2); and Shivji Gem• Mohite v. Stale of M alzaraslttra)(l), A finding reached by the application of correct principles cannot shock judicial conscience and this Court does not permit its conscience to be projected save where known and recognised tests of testimonial U'«ssment are totally disregarded; otherwise, conscience can become an unruly customer.

The High Court in the instant case was evidently awore of these principles but it failed to apply them to the case on hand. In an effort . to justify its interference with the order of acquittal it has characterised one of the findings recorded by the trial court as 'perverse' but with that we must express ourdisagreement. We will now proceed to show how the view taken by the learned Sessions Judge is clearly a reasonable view to take of the evidence. According to the prosecution the occurrence took place .at about 4 p. m. and since the Firs.I Information Report was lodged at about 12-30 at night at the Tarabganj police station which is at a distance of about 4 miles from the scene of occurrence, the learned Sessions Judge held that there was undue delay in lodging the Report and that the delay was not satisfactorily explained.

It is true that witnesses cannot be called upon to explain every hour's delay and a commonsense view has to be taken in ascertaining whether the First Information Report was lodged after an undue delay so as to afford enough scope for manipulating evidence. Whether the delay is so long as to throw a cloud of suspicion on the seeds of the prosecution must depend upon a variety of factors which would vary from case to case. Even a long delay in filing report of an occurrence can be condoned if the witnesses on whose evidence the prosecution relies have no motive for . implicating . the accused. On .the other hand, prompt filing of the 'report is not an unmistakeable guarantee of the truthfulness of the version of the prosecution. In the instant case the importance of the question whether there . was delay in filing the First Information Report is of a different order.

The case of the appellants is that the occurrence must have taken place under cover of darkness, that is, long after the time at which it is alleged . to. have taken place and that is why the First Information Report could not b~ !edged earlier than at 12-30 ·a.m. This defence is wellfounded and the High Court was clearly in error in discarding it. The village of Singha Chand~ is just. about a furlong away from the scene of offence and yet Owanka claims to have gone to Gauhani, which is about 3 or 4 ·miles away, to get a bullock-cart. The High Court· observes:"It is not an unreasonable conduct on the part of the witnesses not to take chance in the nearby village for arranging for a bullockcart when they felt sure that they would be able to procure one from a village which .was somewhat farther away, the persons who owned the bullock-cart being known to one of them." We find it difficult to endorse this view. After the bullock-cart was· brought to the place (1) [196!] I Supp. S.C. R.104, 111.

(2) A.l.R. 1971 S.C. 460, 464. (3) A.l.R. 1973 S.C. 55, 6Z . 1l RAM JAG v. u.P. STATE (Chandrachud, I.) 17 where the incident took place Rampher and his tow companions claimed to have taken a longer route to reach the police station for the reason that taking the shorter route would have meant crossmg a river twice. The river had but ankle-deep water and was only 12 paces from one end to the other. Hausla Prasad was in a critical condition and it is impossible to believe that a longer route was taken thoughtfully in order to facilitate the journey. The High Court observes: "The taking of a longer route also was justified in order to avoid the jolts for the injured on the way for we find in the official map that there is a route by the road of sufficiently good distance along which the bullock-cart could go if it took the longer route."

This reasoning is wholly devoid of substance because in situations like the one in which the injured persons were placed, there is neither time nor leisure to consider calmly the pros and cons of the matter. The uppermost thought would be to reach the hospital and the police station as early as possible and it is in the least degree likely, as observed by the High Court that the injured persons avoided going through the tiny river because it "might have done damage to Hausla Prasad whose condition was by no means good." The truth of the matter is that the occurrence had taken place long after 4 p.m. and witnesses were hard put to explaining why on their own theory they took more than 8 hours to cover a distance of 4 miles. They offered a fanciful explanation which was rightly rejected by the Sessions Court and was wrongly accepted by the High Court.

It is , significant that Rampher had stated in the committing court tht di of them were waiting at the spot of occurrence for about 2 hours after "night-fall". Ram Kripal, a brother of Rampher,. himself was examined by the prosecution as an eye.witness. His name was not mentioned in the First Information Report in spite of the fact that the name of other witnesses and several other minute details were mentioned therein. lf Ram Kripal was present at the time of the incident, he raiher than the injured Dwarika would have gone to fetch the bullock-cart.

The Sessions Court therefore rejected the evidence of Ram Kripal and indeed the High Court also came to the conclusion that Ram Kripal was not a reliable witness, 'that he might nof have been present at all and has been added as an after-thought in support of the prosecution or in any case his statement is of doubtful value, but that does not mean that Rarnpher's statement should be discarded for the principle of falsus in uno,falsus in omnibus is a principle that does not apply in our country.' If Rampher had no compunction in creating an eyewitness bis evidence had to be approached with great caution. The High Court was not justified in holding that the only impact of the false discovery of an eye-witness on the prosecution case was that Rampher's evidence had to be rejected in part. Ram Shanker is also alleged to have been present at the time of the iacident but he had admitted before the committing magistrate that he left his house for the temple at· about 2-30 p.m.

That would make it impossible for him to be at the scene of offence at about 4 p.m. on his 3-852 Sup.C!J74 18 [ 1974] 3 S.C.R. way back from the temple. He therefore improved his version by stating in the Sessions Court that he had left his house at about 6 a.m. He had also stated in the committing court that he was waiting at the scene of offence till about 8 p.m. but he denied in the Sessions Court that he had made any such statement. The learned Sessions Judge was therefore justi1ed in rejecting the evidence of Ram Shanker also While dealing with the evidence of this witness the High Court obsenes ,that "the statement of a witness should be examined as a wliole and th! mere fact that the witness has denied certai1t statements made by him earlier under the challenge thrown to him in the witness-box during cross-examination should not detract from the value of his testimony m1de on oath before the trial Judge".

One can be unconventional in the assessment of evidence but the approach of the High Court is impossible to accept. Ram Shanker had made conflicting statements on oath before the two courts on an important aspect and the question which the High Court had to ask itself in the appeal · against the order of acquittal was whether the view taken by the Sesoions Court in regard to the presence of Ram Shanker was not a reasonable view to take. After indicating its disapproval of the conclusion recorded by the Sessions Court that Ram Shanker was not a witness of truth, the High Court proceeded to say that even if his evidence was left out, there was no reason to ·discard the testimony of the other eye-witnesses. The High Court also failed to appreciate the true implication of Rampher's evidence in the Sessions Court that the assailants were dacoits or 'Looteras' and that they had searched his pockets as well as the pockets of his companions.

Appellants are alleged to have assaulted · Hausla Prasad and his companions not with the motive ot thievi~g but for the alleged motive that Hausla Prasad was in illicit intimacy with Sheshkali, the daughter of Gaya Prasad who was the principal accused but who died during the proceedings. If that be the true motive, it is hardly likely that Gaya Prasad and his companions would search the pockets of Rampher and his troupe. The Sessions Court was justified in attaching due importance to Rampher's evidence on this aspect of the matter. We are unable to appreciate the criticism of the High Court that "It is again the case of an unnecessary emphasis being laid on a minor matter". Indeed witnesses themselves thought the matter to be so important that in order to render the story of motive probable, they Introduced in their evidence the embe:Hishment that before hitting'. Hausla Prasad, Ga ya Prasad said "Is ko ....

Aashnai ka Maza ChakhaJ do 0 , -The endeavour at the trial was to. show that the incident \Vas connected with the illicit affair between Hausla Prasad and Sheshkali. Significantly, the First Information Report makes no mention of a11y one of the accused referring to the 'Aashnai' (iiJicit intimacy) before, during or after the attack. In the concluding portion of.its judgment the High Court has observed· that the injured persons must have been present at the spot and as the occ·urrence took place in "broad day·light", there was no reason why their evidence should not be accepted, '.'even though they might have one reason or the other to falsely 1mphcate one or the other II RAM JAG V. U.P. STATE (Chandrachud, /.) 19 accused". It was wrong to conclude thatlhe incident had taken place in broad day-light and it was even more wrong that the High Court did not warn itSc:lf of the danger of accepting the evidence of witnesses who had reason to implicate the appellants falsely.

For these reasons we are of the >'iew that the Hight Court was not justified in lnterfel-ing with the order of acquittal passed by the learned Sessions Judge. We therefore allow this appeal, set aside the order of conviction and sentence and direct that the appellants shall be set at liberty, if they are not already on ba;I. P.B.R . Appeal allowed.