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PETITIONER:

RAM JAG AND OTHERS

Vs.

RESPONDENT:

THE STATE OF U.P.

DATE OF JUDGMENT21/12/1973

BENCH:

CHANDRACHUD, Y.V.

BENCH:

CHANDRACHUD, Y.V.

BEG, M. HAMEEDULLAH

CITATION:

1974 AIR 606 1974 SCR (3) 9

1974 SCC (4) 201

CITATOR INFO :

F 1974 SC2165 (27)

R 1975 SC 185 (2)

F 1975 SC 274 (4)

RF 1975 SC1100 (6)

RF 1975 SC1808 (3)

F 1976 SC1994 (13)

F 1976 SC2032 (2,3)

R 1976 SC2304 (22)

ACT:

Penal Code--Ss. 302, 325, 323--Constitution of India--Art.

136--High Court setting aside acquittal--Appeal by special

leave--If Supreme Court could reappreciate evidence.

HEADNOTE:

The appellants who were charged with the offence of murder

were acquitted by the Additional Sessions Judge but the

order of acquittal was set aside in appeal by the High

Court. The High Court convicted them under various sections

of the Penal Code and sentenced them to life imprisonment

for the offence of murder and to shorter terms for the other

offences. The prosecution case was that when the deceased,

along with three other persons, was returning from temple,

he was attacked at about 4 P. M. on the day of the

occurrence by the appellants. The deceased , who was

mortally injured, was carried in a bullock cart to a nearby

police station. On the way he succumbed to his injuries.

The first information report was lodged in the police

station at 12.30 that night.

Allowing the appeal to this Court,

HELD : This Court in an appeal under Art. 136 will examine

the evidence only if the High Court while setting aside the

order of acquittal by the trial court has failed to apply

correctly the principles governing appeals against

acquittals.

In Sheo Swarup & Ors v. The King Emperor, 61 I.A. 398,

Surajpal Singh v. The state [1952] S.C.R.193 and Sanwat

Singh v. State Of Rajasthan [1961] 3 S.C.R. 120, the

principles governing appeals against acquittal are firmly

established. The Code of Criminal Procedure made no

distinction between the powers of the appellate court in

regard to the two categories of appeals and, therefore, the

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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 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 such seeing and hearing can

be useful aids to the assessment of evidence are well known

principles which generally inform the administration of

justice and govern the exercise of all appellate

jurisdiction. They are self-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 if the appellate court deals with the principal

reasons that influenced the order of acquittal and after

examining the evidence with care gives its own reasons

justifying a contrary view of the evidence. It is implicit

in this judicial process that if two views of the evidence

are reasonably possible, the finding of acquittal ought not

to be disturbed.

If after applying these principles, not by their mechanical

recitation in the judgment, the High Court has reached the

conclusion the order of acquittal ought to be reversed, this

court will not reappraise evidence in appeals brought before

it under art. 136of 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 appliedthe principles correctly. The High Court is

the final court of facts and the reserve jurisdiction

of this Court under Art. 136, though couched in wide

terms,is by long practice exercised in exceptional cases

where the High Court has disregarded the guidelines 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 shakes theconscience of the court.

[15B-G]

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The High Court in the instant case was evidently aware of

these principles but it failed to apply then to the case on

hand. The High Court was not correct in characterising of

the findings recorded by the trial court as "perverse".

(i) The High Court was not right in rejecting the view of

the Sessions Judge that there was undue delay in lodging the

report and that the delay was not satisfactorily explained.

Whether the delay was so long as to throw a cloud of

suspicion on the case of the prosecution must depend upon a

variety of factors which would vary from case to case.

(ii) In the instant case the defence of the appellants that

the occurrence must have taken place under cover of

darkness, that is, long after the time at which it was

alleged to have taken place is well founded and the High

Court was clearly in error in discarding it.

(iii) If the principal witness had no compunction in

creating an eyewitness his 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 the evidence of

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the principal witness had to be rejected in part.

(iv) Yet another witness had made conflicting statements on

oath before two courts on an important aspect and the

question which the High Court should have asked itself was

whether the view taken by the Sessions Court in regard to

this witness was a reasonable one. The High Court was not

right in saying that there was no reason to discard the

testimony of the other eye witnesses even if his evidence

was left out.

(v) The motive was said to be illicit intimacy between the

deceased and daught of one of the assailants. But one of

the witnesses deposed that the assailants were dacoits and

that they searched his pocket as well as the pockets of his

companions. The first information report made no mention of

any one of the accused referring to the illicit intimacy

before, during or after the attack. The endeavour at the

trial was to show that the incident was connected with the

illicit affair. if that be the true motive, it is hardly

likely that the assailants would search the pockets of the

deceased and his companions. The Sessions Judge was

justified in attaching due importance to this aspect of the

matter and the High Court was not right in saying that

unnecessary emphasis was laid on a minor matter.

JUDGMENT:

CRIMINAL, APPELLATE JURISDICTION : Criminal Appeal No. 110

of 1970.

Appeal by Special Leave from the Judgment and Order dated

the 8th January 1970 of the Allahabad High Court (Lucknow

Bench) at Lucknow in Criminal Appeal No. 634 of 1967.

A. N. Mulla 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 all, were acquitted

by the Additional Sessions Judge, Gonda, but the order of

acquittal was set aside in appeal 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

sentenced to life imprisonment for the offence of murder and

to shorter terms for the other offences. This appeal by

special leave is directed against that judgment. The charge

against the appellants is that on the evening of September

17, 1966 they formed an unlawful assembly and in prosecution

of the common object of that assembly

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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

after they crossed a river near the village of Singha Chanda

they are alleged to have been attacked by the appellants.

Dwarika brought a bullock' cart from a village called

Gauhani and thereafter the four injured persons proceeded to

the Tarabganj police station. On the way 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

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his person, Lakhu and a swelling Rampher had received 6

injuries while Dwarika had received 9 injuries. The

injuries received by these persons including, Hausla Prasad

were mostly contused lacerated wounds and abrasions.

The prosecution examined Rampher, Dwarika, Lakhu, Ram,

Shanker and Ram Kripal (P. Ws 2 to 6) as eye-witnesses to

the Occurrence. The learned Additional Session's Judge held

that these witnesses were not worthy of credit and acquitted

the appellants. The High Court was not impressed by the

evidence 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-

witnesses and therefore this Court, in the exercise of its

powers under article 136 of the Constitution, ought not to

re-appreciate that evidence in order to determine whether it

can sustain 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

function 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 rule will bring welcome relief. But it is overstating the

rule to say that the verdict of the High Court on questions

of fact, including assessment of evidence, cannot ever be

re-opened in this Court.

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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. In 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(1); Queen-Empress v. Robin-

son(2); Deputy Legal Remembrancer of Bengal v. Amulya Dwan

(3); King-Emperor v. Deboo Singh (4); King-Emperor; v. U San

Win (5).) A contrary line of cases had, on the other hand,

ruled that 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 v. Prag

Dat(6); Queen-Empress v. Bibhuti Bhusan Bit(7); Deputy Legal

Remembrancer, Behar and Orissa v. Mutukdhari Singh (8); Re

Sinnu Goundan (9); Queen-Empress v. Karigowda(1O).

In 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 answer to the

question in issue would depend upon the construction of the

provisions in the Code of Criminal Procedure,the,Privy

Council noticed sections 404, 410, 417, 418 and 422,

examined section 423 and concluded that the Code draw no

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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 India, that the

High Court has no power or jurisdiction to

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 of the 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 conclus

ion 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.

2. (1894) I. L. R. 16 Allahabad 212.

3. (1913) I.L.R. 18 C.W.N. 666.

4. [1927] I.L.R. 6 Patna 496.

5. (1932) I.L.R. 10 Rangoon 312.

6. (1898) I.L.R. 20 Allahabad 459.

7. (1890) I.L.R. 17 Calcutta 485.

8. (1915) 20 C.W.N. 128.

9. (1914) I.L.R. 38 Madras 1028,1034.

10. (1894) I.L.R. 19 Bombay 51.

11. 61 1. A. 398.

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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

(1)the views of the trial judge as to the

credibility of the witnesses; (2) the

presumption of innocence in 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

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 accordance with rules and

principles well known and recognised in the

administration of justice."

The amplitude of the power of the High Court in appeals

against acquittal was reiterated by the Privy Council in Nur

Mahomed v. Emperor.(1)

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 reversed, the Privy Council had pointed

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out that before reaching its conclusions on facts the High

Court must always give proper weight to certain matters like

the presumption of innocence, the benefit of' doubt etc.

This qualification upon a power otherwise wide and unlimited

was no more than differently expressed by this Court in

Surajpal Singh v. The State(2), by saying that though it is

well-established that the High Court has full power to

review the evidence on which the order of acquittal was

founded, "it is equally well settled that the presumption of

innocence of the accused is further reinforced by his

acquittal by the trial court, and the findings of the trial

court which had the advantage of seeing the witnesses and

hearing their evidence can be reversed only for very

substantial and compelling reasons". The phrase

"substantial and compelling reasons" became almost a part,

as it were. of codified law and was repeatedly used by this

Court with emphasis in cases like Ajmer Singh v. State of

Punjab(3), Puran v. State of' Punjab (4), Aher Raja Khima v.

The State of Saurashtra (5), Bhagwan Das v. State of

Rajasthan (6) and Balbir Singh v. State of Punjab. (7)

Judgments of several High Courts in appeals against

acquittals 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 some extent its tedium was relieved by the use

of words " good and sufficiently cogent reasons" in Tulsiram

Kani v. The State.(8) In Aher Raja Khima's case(5), the

formula of "substantial and corn-

1. A.I.R. 1945 P.C. 151.

3. [1953] S.C.R. 418.

5. [1955] 2 S.C.R.1285.

7. A.I.R. 1957 S.C. 216,

2. [1952] S.C.R. 193.

4. A.I.R. 1953 S.C. 459.

6. A.I.R. 1957 S. C. 589.

S. A.I.R. 1954 S.C. 1.

14

pelling reasons" though adopted, was treated as synonymous

with "strong reasons".

This stalemate was resolved by this Court in Sanwat Singh v.

State of Rajasthan(1). 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 ,clear

reasons for coming to the conclusion that the order of

acquittal was wrong." The principles laid down by the Privy

Council in Sheo Swarup's case(2) were expressly approved and

it was held that "the different phraseology used in the

judgments of this Court, such as, (i) ,.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 conclusion on those facts, but should also express

those reasons in its judgment, which lead it to hold that

the acquittal was not justified."

The principles governing appeals against acquittal as

explained in Sanwat Singh's case have been adopted and

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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 others.

These, however, are variations in style and do not reflect a

variation in approach.

In Harbans Singh v. State of Punjab(3), a four-Judge Bench

observed: "What may be called the 'golden thread running

through all these ,decisions is the rule that in deciding

appeals against acquittal the Court of 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 that the view

taken by the acquitting Judge is clearly unreasonable." In

Ramabhupala Reddy and Ors. v. The State of Andhra

Pradesh(4), the same thought was expressed by saying : "if

two reasonable conclusions, can be reached oil the basis of

the evidence on record, the appellate court should not

disturb the findings of the trial court." Very recently, in

Shivaji Sahebrao Bobade and Anr. v. State of Maharashtra(5),

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 conviction on appeal save where substantial and

,compelling grounds exist for such a course........ In law

there are no fetters on the plenary power of the Appellate

Court to review the whole ,evidence on Which the order or

acquittal is founded and, indeed, it

1. [1961] 3 S.C.R. 120.

3. [1962] 1 Supp. S.C.R. 104. 1

5. A.I.R. 1973 S.C. 2622.

61 1. A. 398.

4. A.I.R. 1971 S.C. 460,

15

has a duty to scrutinise the probative material de novo,

informed, however, by the weighty thought that the

rebuttable innocence attributed to the accused having been

converted into an acquittal the homage our jurisprudence

owes to individual liberty constrains the higher court not

to upset the holding without very 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 Procedure 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 such seeing and hearing can be

useful aids to the assessment of evidence, are well-known

principles which generally informs the administration of

justice and govern the exercise of all appellate

jurisdiction. They are self-imposed limitations on a power

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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 if the appellate court deals with the principal

reasons that become influenced the order of acquittal and

after examining the evidence with care gives its own reasons

justifying a contrary view of the evidence. It is implicit

in this judicial process that if two views of the evidence

are reasonably possible. the finding of acquittal ought not

to be disturbed.

if after applying these principles, not by their mechanical

recitation in the judgment, the High Court has reached the

conclusion that lie order of acquittal ought to be reversed,

this Court will not reappraise evidence in appeals brought

before it under article 136 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 tinder article 136, though

couched in wide terms, is by long practice exercised in

exceptional cases where the High Court has disregarded the

guide-lilies 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, Sanwat Singh & Or.;. v. State of

Rajasthan(1); Harbans Singh &

(1) [1961]3 S.C.R. 120, 134-135.

16

Anr. v. State of Punjab (1); Ramabhupala Reddy and Ors., V.

The State of Andhra Pradesh(2); and Shivji Genu Mohite v.

State of Maharashtra)(3). 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 assessment are totally disregarded; otherwise,

conscience can become an unruly customer.

The High Court in the instant case was evidently aware 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 our disagreement. 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. zn. and since the First 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

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not an unmistakable 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 be ledged 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 Chanda is just about a furlong away

from the scene of offence and yet Dwarika 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

bullock. cart 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) (19621 1 Supp. S.C. R. 104, 1 1 1.

(2) A. I. R. 1971 S.C. 460, 464.

(3) A.I.R. 1973 S.C. 55. 62.

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 crossing 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 that all 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. If Ram Kripal was

present at the time of the incident, he rather than the

injured Dwarika would have gone to fetch the bullock-cart.

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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

not have been present at an 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

Rampher'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 his 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 incident 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

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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 justified in rejecting the evidence of Ram

Shanker. also. While dealing with the evidence of this

witness the High Court observes that "the statement of a

witness should be examined as a whole and the mere fact that

the witness has denied certain 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 made 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 Sessions

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 of thieving

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 embellishment that before

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hitting Hausla Prasad, Gaya Prasad said "Is ko .... Aashnai

ka Maza Chakha do". The endeavour at the trial was to show

that the incident was connected with the illicit affair

between Hausla Prasad and Sheshkali. Significantly, the

First Information Report makes no mention of any one of the

accused referring to the 'Aashnai' (illicit 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 occurrence 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 implicate one or the other

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accused". It was wrong to conclude that the incident had

taken place in broad day-light and it was even more wrong

that the High Court did not warn itself of the danger of

accepting the evidence of witnesses who bad reason to

implicate the appellants falsely.

For these reasons we are of the view that the High Court was

not justified in interfering 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 bail.

P.B.R,

Appeal allowed.

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