http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7

CASE NO.:

Appeal (crl.) 2032-33 of 1996

PETITIONER:

Ramakant Rai

RESPONDENT:

Madan Rai and Ors.

DATE OF JUDGMENT: 26/09/2003

BENCH:

DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT:

J U D G M E N T

WITH

CRIMINAL APPEAL NOS. 611-612/1997

ARIJIT PASAYAT,J

One Jairam (hereinafter referred to as the 'deceased') was in his

early teens when he lost his life in an unfortunate dispute where his

relatives were the warring parties. There were originally 4 accused

persons namely, Madan Rai (A-1), Rasbehari (A-2), Sachidanand Rai (A-3)

and Janardan Rai (A-4). Accused-Madan Rai is the father of Sachidanand

and Rasbehari. Accused-Madan Rai was charged for commission of offence

punishable under Section 302 of the Indian Penal Code, 1860 (in short

the 'IPC') for committing the murder of deceased and other three were

charged by application of Section 302 read with Section 34 of IPC. All

the four accused persons were also charged in terms of Section 440 IPC

for committing mischief having made preparation to cause hurt.

The date of occurrence is 11.5.1984. The dispute arose over fixing

a door by Ramakant (appellant in Crl.A.Nos.2032-33/96). By infliction of

a gunshot injury the deceased breathed his last on 12.5.1984. According

to Siyaram (PW-1) the informant, the incident which took life of the

deceased was the result of long-standing dispute over properties. There

was a private partition between the deceased's father and his offsprings

and accused-Madan Rai a few years before the occurrence. Madan Rai

wanted to take northern room out of the rooms in which cattles were

tethered and which was falling to share of Siyaram, the informant.

Though the door of this room had been removed earlier, the informant

wanted to close the door by constructing a mud wall. On the date of

occurrence at about 6.30 p.m. the accused-Madan Rai came with his

licensed gun to the spot of occurrence with his sons Sachidanand,

Rasbehari and Janardan. Three of them were armed with lathis. They

started demolishing the walls. The present appellant-Ramakant Rai and

Siyaram and deceased requested them not to do so. Madan Rai took out his

gun and fired one shot. Sound of such gun fire attracted notice of many

including Bashisht Pandey (PW2), Bhimnath Rai (PW5)and many other

villagers who came to his house, particularly, to the room to find out

what has happened. The informant, the deceased and others came to the

room where informant's cattles were tethered. Accused-Madan Rai climbed

on the roof to the western corner of the house with his gun. Deceased

was at the door of the room which was towards north-west of his house.

Madan Rai fired one gun shot which resulted in injuries on the face of

the deceased who fell down. According to the informant the ghastly

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7

incident was witnessed by Bashisht Pandey (PW2), Bhimnath Rai (PW5) and

the neighbourers. As the condition of the deceased deteriorated, he was

taken in a tractor to the hospital at Mohammadbad, information was

lodged at the police station, and investigation was undertaken. On

completion of the investigation, charge sheet was placed.

Considering the evidence on record the Trial Court found accused-

Madan Rai guilty and sentenced him to imprisonment for life for the

offence relatable to under Section 302 IPC and for the offence

punishable under Section 440 IPC imprisonment for term of two years with

a fine of Rs.500/- was imposed. Other three accused were acquitted of

charges under Section 302 read with Section 34 IPC. However, they were

held guilty in relation to Section 440 IPC. The convicted accused

persons filed an appeal before the Allahabad High Court which by the

impugned judgment found the prosecution version to be wanting

incredibility and adequacy and directed acquittal. State's appeal

against acquittal of three was rejected.

According to the High Court, there was manipulation so far as the

time of occurrence in the FIR is concerned. Originally, the same appears

to have been written at 7.30 p.m. and subsequently corrected to 6.30

p.m., obviously, with a view to make visibility and identification

possible. There was no motive to kill the young boy, as the accepted

position seemed to be that notwithstanding the difference there was no

sufficient reason as to why the innocent boy should be killed. It was

also concluded that since there was only one gunshot, the question of

so-called eyewitnesses rushing to the spot on hearing the sound appeared

incredible. The distance from which the bullet was fired appeared to be

differently stated and there was apparent contradiction in the evidence

of doctor who conducted the post mortem and the doctor who examined the

deceased immediately after he had suffered the injuries. While Dr.

Chander Bhan Tripathi (PW-4) who conducted the post-mortem examination

indicated the distance to be greater, doctor (PW-3) who examined the

deceased noticed some blackening and tattooing which indicated that the

gun shot was fired from a very close range. After making casual

reference to the evidence it was concluded that on the overall

appreciation of evidence contradictory statement of affairs about the

injuries and the ocular testimonies, time of lodging of FIR throws grave

doubt in the prosecution case. It was, therefore, concluded that place

of occurrence as said to have taken place and stated in Court is not

correct version of the incident and the prosecution has not come with

clean and correct case. With these findings, the judgment of conviction

and sentence was set aside and one of acquittal was put in its place.

The father of the deceased, Ramakant Rai has filed Criminal

Appeals Nos. 2032-33/96. The State of Uttar Pradesh has filed Criminal

Appeal Nos.611-612/1997 restricting the challenge to the acquittal of

Rasbehari, Sachidanand and Janardan but there is no challenge to the

acquittal of Madan Rai, the prime accused according to the prosecution.

Learned counsel for the appellant Ramakant Rai submitted that the

conclusions of the High Court are without any basis and the judgment is

practically un-reasoned and conclusions cannot be substitute for

reasons. Referring to the number of shots it is submitted that the

evidence of the witnesses clearly spoke of two gunshots. This was also

noticed by the trial Court. Unfortunately, the High Court proceeded on

the presumption as if there was only one gunshot. In reality there was

one gunshot, which hit the deceased. But the clear and cogent evidence

was to the effect that one shot was fired first and after some time the

second shot was fired which proved to be fatal. The High Court has

attached unnecessary importance to the correction made in the FIR about

the time of occurrence. There was no material and no finding has been

recorded that initially some timing was given which was subsequently

changed. It is not the case of the defence that at first 7.30 p.m. which

was written in the FIR was subsequently changed to 6.30 p.m. in another

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7

document. As has been explained by the informant the correction was made

before the first FIR was handed over. To say that the timing was changed

after deliberation would not be a proper approach. According to the

informant by tremor of hand it was so written and immediately corrected

and to discard the prosecution case on the conjectures and surmises that

the timing was changed after deliberation is indefensible. Even if it is

conceded that there was a correction made that was obviously made before

the FIR was handed over and mere correction cannot be viewed with

suspicion as has been done by the High Court.

Dr. Sudhakar Dube (PW-3) has clarified as to why he had stated

about blackening. The evidence was to the effect that when he examined

the injured there was no electric light and he had to make the

examination with the help of lantern and, therefore, the confusion

arose. In view of this specific clarification, it was not appropriate

for the High Court to conclude that the post mortem report was to be

discarded. The trial Court had dealt with such pleas of the accused

persons elaborately and had indicated the reasons as to why they were

not acceptable. The High Court without even discussing the evidence

elaborately concluded to the contrary. Evidence of PWs 2 and 5 who are

independent witnesses has been discarded even without analyzing of their

evidence.

In response, learned counsel for the acquitted accused persons

submitted that the special leave petition at the instance of the father

of the deceased was not competent. Though he claimed to be eyewitness,

he was not examined by the prosecution. The reasoning indicated by the

Trial Court that he may have shown compassion to his close relative

having lost the son is contradicted by the very fact that he has chosen

to file Special leave petition.

With reference to evidence of doctors it was submitted that nature

of gunshots wounds shows that the firing was from a close range. Had the

situation been otherwise, the injuries could not have been of oval

shape, when the prosecution version is that the accused was firing from

a height. The nature of the injuries sustained clearly rule out any gun

being fired by the accused Madan Rai. Neither any gun nor any bullet was

produced which dents the prosecution version irretrievably. The absence

of ballistic expert's report corrodes credibility of prosecution

version.

Considering the distance from which PWs 2 and 5 claimed to have

come, it is highly improbable that they would have seen the occurrence

as claimed. The timing of incident was first correctly reflected and

probably in the course of writing down the first FIR it was noticed that

visibility would be poor and identification improbable and that is why

the change was made. Even if it was done before the report was lodged it

throws great doubt about the correct presentation of the factual

scenario. Though the High Court has not spelt out the reasons to

buttress the conclusions that is not fatal to the ultimate conclusions

as the material on record would justify the conclusions and the

correctness thereof.

Learned counsel for the State of U.P. submitted that though the

State has not specifically challenged the acquittal of Madan Rai, on a

bare reading of the High Court's judgment it is clear that the same

cannot be maintained. Additionally, it is submitted that both the trial

Court and the High Court have erroneously concluded that Section 440 IPC

was not made out against accused 2, 3 and 4.

A doubt has been raised about the competence of a private party as

distinguished from the State, to invoke the jurisdiction of this Court

under Article 136 of the Constitution of India, 1950 (in short the

'Constitution') against a judgment of acquittal by the High Court. We do

not see any substance in the doubt. Appellate power vested in this Court

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7

under Article 136 of the Constitution is not to be confused with

ordinary appellate power exercised by appellate courts and appellate

tribunals under specific statutes. It is a plenary power, 'exercisable

outside the purview of ordinary law' to meet the pressing demands of

justice (See Durga Shankar Mehta v. Thakur Raghuraj Singh (AIR 1954 SC

520). Article 136 of the Constitution neither confers on anyone the

right to invoke the jurisdiction of this Court nor inhibits anyone from

invoking the Court's jurisdiction. The power is vested in this Court but

the right to invoke the Court's jurisdiction is vested in no one. The

exercise of the power of this Court is not circumscribed by any

limitation as to who may invoke it. Where a judgment of acquittal by the

High Court has led to a serious miscarriage of justice this Court cannot

refrain from doing its duty and abstain from interfering on the ground

that a private party and not the State has invoked the Court's

jurisdiction. We do not have slightest doubt that we can entertain

appeals against judgments of acquittal by the High Court at the instance

of interested private parties also. The circumstance that the Criminal

Procedure Code, 1973 (in short the "Code") does not provide for an

appeal to the High Court against an order of acquittal by a subordinate

Court, at the instance of a private party, has no relevance to the

question of the power of this Court under Article 136. We may mention

that in Mohan Lal v. Ajit Singh (1978 (3) SCC 279) this Court interfered

with a judgment of acquittal by the High Court at the instance of a

private party. An apprehension was expressed that if appeals against

judgments of acquittal at the instance of private parties are permitted

there may be a flood of appeals. We do not share the apprehension.

Appeals under Article 136 of the Constitution are entertained by special

leave granted by this Court, whether it is the State or a private party

that invokes the jurisdiction of this Court, and special leave is not

granted as a matter of course but only for good and sufficient reasons,

on well established by the practice of this Court.

Above was the view expressed by this Court in Arunachalam v.

P.S.R. Sadhanantham and Anr. (1979 (2) SCC 279). The view has again been

reiterated by the Constitution Bench in P.S.R. Sadhanantham v.

Arunachalam and Anr. (1980 (3) SCC 141).

It is to be seen whether the broad spectrum spread out of Article

136 fills the bill from the point of view of "procedure established by

law". In express terms, Article 136 does not confer a right of appeal

on a party as such but it confers a wide discretionary power on this

Court to interfere in suitable cases. The discretionary dimension is

considerable but that relates to the power of the Court. Article 136 is

a special jurisdiction. It is residuary power; it is extraordinary in

its amplitude, its limits, when it chases injustice, is the sky itself.

This Court functionally fulfils itself by reaching out to injustice

wherever it is and this power is largely derived in the common run of

cases from Article 136. Is it merely a power in the court to be

exercised in any manner it fancies? Is there no procedural limitation in

the manner of exercise and the occasion for exercise? Is there no duty

to act fairly while hearing a case under Article 136, either in the

matter of grant of leave or, after such grant, in the final disposal of

the appeal? There cannot be even a shadow of doubt that there is a

procedure necessarily implicit in the power vested in this Court. The

founding fathers unarguably intended in the very terms of Article 136

that it shall be exercised by the judges of the highest Court of the

land with scrupulous adherence to settled judicial principles, well

established by precedents in our jurisprudence. Judicial discretion is

canalized authority not arbitrary eccentricity. Cardozo, with elegant

accuracy, has observed:

"The judge, even when he is free, is still not

wholly free. He is not to innovate at pleasure. He is

not a knight-errant roaming at will in pursuit of his

own ideal of beauty or of goodness. He is to draw his

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7

inspiration from consecrated principles. He is not to

yield to spasmodic sentiment, to vague and

unregulated benevolence. He is to exercise a

discretion informed by tradition, methodized by

analogy, disciplined by system, and subordinated to

'the primordial necessity of order in the social

life'. Wide enough in all conscience is the field of

discretion that remains".

It is manifest that Article 136 is of composite structure, is

power-cum-procedure - power in that it vests jurisdiction in this Court

and procedure in that it spells a mode of hearing. It obligates the

exercise of judicial discretion and the mode of hearing so

characteristic of the court process.

Coming to the appeals before us we find that State has not

challenged the acquittal of accused Madan Rai. That being the position

and in view of what has been stated in Arunachalam's case (supra) and

Sadhanantham's case (supra) the special leave petition filed by Ramakant

Rai is clearly maintainable.

It was submitted that when two views are possible and the High

Court with well-chiselled conclusions has accepted a view it would not

be proper to exercise jurisdiction under Article 136 of the

Constitution. Arguments are not substitutes for reasoning. More so when

the appellate court upsets conclusions of lower court. A party is not

permitted to say that the arguments are what the Court intended to

accept or to convey. When the appellate Court concurs with the views of

the Trial Court the necessity for elaborately dealing with various

aspects may not always be necessary. But when a view contrary to that of

the lower court is expressed, it is imperative that reasons therefor

should be clearly indicated. There is no scope for any departure from

this basic requirement. Therefore, the plea of the accused-respondents

that even though the judgment of the High Court is not very elaborately

reasoned, yet it can be supplemented by arguments is a fallacious one.

It is also noticed that the High Court did not correctly

appreciate the facts. First and foremost it proceeded on the basis as if

there was only one gunshot. In fact the evidence on record clearly shows

that there were two gunshots and only one of them was a fatal one.

The evidence of PWs 2 and 5 have been lightly brushed aside with

presumptuous conclusion that they could not probably have come from

their houses and since there was only one gunshot. On that score alone

the High Court's conclusions suffer from vulnerability. The High Court

also proceeded as if the change in timing indicated in the FIR was

subsequently done. There is no material to support this conclusion. Here

again, High Court acted without any material to support its conclusions.

The Investigating officer (PW-6) was also not even asked as to when the

change was made. On the contrary, reading of PW-1's evidence shows that

it was done before the report was handed over to the police.

The High Court also came to erroneous conclusion that there was

variance between the evidence of PWs 3 and 4. It clearly overlooked the

explanation offered by PW-3 as to why he had mentioned about blackening.

He has stated that examination at the first instance was done in

inadequate light with the help of lantern. Therefore, he accepted that

there was a possibility of mistake in what he recorded about the

blackening. When one compares his evidence with that of PW-4 the

position is clear. PW-4 has not really noticed any blackening or

tattooing. Without considering the evidence of PW-3 in its proper

perspective the High Court should not have abruptly concluded that there

was a difference in the evidence of PWs 3 and 4 and accused is to get

the benefit therefor. In fact a combined reading of the evidence of PWs

3 and 4 shows that PW-4's version was more authentic and acceptable.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7

Much emphasis has been laid about the nature of injury. The

hypothetical answers given by the doctors cannot corrode credibility of

eyewitnesses. Significantly, no question was put to PWs 3 and 4 as to

the position from where the accused could have made the gunshot.

It is trite that where the eyewitnesses' account is found credible

and trustworthy, medical opinion pointing to alternative possibilities

is not accepted as conclusive. Witnesses, as Bantham said, are the eyes

and ears of justice. Hence the importance and primacy of the quality of

the trial process. Eyewitnesses' account would require a careful

independent assessment and evaluation for their credibility which should

not be adversely prejudged making any other evidence, including medical

evidence, as the sole touchstone for the test of such credibility. The

evidence must be tested for its inherent consistency and the inherent

probability of the story; consistency with the account of other

witnesses held to be credit-worthy; consistency with the undisputed

facts the 'credit' of the witnesses; their performance in the witness-

box; their power of observation etc. Then the probative value of such

evidence becomes eligible to be put into the scales for a cumulative

evaluation.

A person has, no doubt, a profound right not to be convicted of an

offence which is not established by the evidential standard of proof

beyond reasonable doubt. Though this standard is a higher standard,

there is, however, no absolute standard. What degree of probability

amounts to 'proof' is an exercise particular to each case. Referring to

of probability amounts to 'proof' is an exercise the inter-dependence of

evidence and the confirmation of one piece of evidence by another a

learned author says: (See "The Mathematics of Proof II": Glanville

Williams: Criminal Law Review, 1979, by Sweet and Maxwell, p.340(342).

"The simple multiplication rule does not apply

if the separate pieces of evidence are dependent.

Two events are dependent when they tend to occur

together, and the evidence of such events may also be

said to be dependent. In a criminal case, different

pieces of evidence directed to establishing that the

defendant did the prohibit act with the specified

state of mind are generally dependent. A juror may

feel doubt whether to credit an alleged confession,

and doubt whether to infer guilt from the fact that

the defendant fled from justice. But since it is

generally guilty rather than innocent people who make

confessions, and guilty rather than innocent people

who run away, the two doubts are not to be multiplied

together. The one piece of evidence may confirm the

other".

Doubts would be called reasonable if they are free from a zest for

abstract speculation. Law cannot afford any favourite other than truth.

To constitute reasonable doubt, it must be free from an over emotional

response. Doubts must be actual and substantial doubts as to the guilt

of the accused persons arising from the evidence, or from the lack of

it, as opposed to mere vague apprehensions. A reasonable doubt is not an

imaginary, trivial or a merely possible doubt; but a fair doubt based

upon reason and common-sense. It must grow out of the evidence in the

case.

The concepts of probability, and the degrees of it, cannot

obviously be expressed in terms of units to be mathematically enumerated

as to how many of such units constitute proof beyond reasonable doubt.

There is an unmistakable subjective element in the evaluation of the

degrees of probability and the quantum of proof. Forensic probability

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7

must, in the last analysis, rest on a robust common sense and,

ultimately, on the trained intuitions of the judge. While the

protection given by the criminal process to the accused persons is not

to be eroded, at the same time, uninformed legitimization of

trivialities would make a mockery of administration of criminal justice.

This position was illuminatingly stated by Venkatachalia, J(as His

Lordship then was) in State of U.P. v. Krishna Gopal and Anr. (AIR 1988

SC 2154).

As was noted by this Court in Gurcharan Singh and Anr. v. State

of Punjab (AIR 1963 SC 340) non-examination of the ballistic report does

not render direct evidence improbable.

In view of the unsatisfactory nature of disposal of the appeal and

the inherent improbabilities and incongruities in the conclusions, the

unreasoned impugned judgment of the High Court warrants reversal. So far

as accused-Madan Lal is concerned, his conviction under Section 302 IPC

as done by the Trial Court is restored. So far as acquittal of other

accused persons under Section 302 read with Section 34 is concerned, the

Trial Court had elaborately dealt with the evidence to extend benefit of

doubt to them. The High Court did not interfere in the State's appeal so

far as their acquittal is concerned. Nothing could be shown to us as to

why the conclusions are to be reversed and in what way they are

fallacious.

Coming to the appeal filed by the State and the challenge of

Ramakant Rai to the acquittal of accused respondents Sachidanand,

Rasbehari and Janardan under Section 440 IPC, for which two years

imprisonment was imposed, is concerned the High Court's judgment is

reversed. The respondents Sachidanand, Rasbehari and Janardan were

rightly convicted by the Trial Court under Section 440 IPC along with

accused Madan Rai. The sentence of two years rigorous imprisonment and a

fine of Rs.500/- as imposed can be in no way termed to be excessive to

warrant a different sentence.

In the ultimate result, the judgment of the Trial Court is

restored and that of the High Court is set aside. The respondents shall

surrender to custody to serve the remainder of the sentence, if any, to

be served.

The appeals are allowed.