KHEM KARAN AND OTHERS versus THE STATE OF U.P. AND ANOTHER

KHEM KARAN AND OTHERS

THE STATE OF U.P. AND ANOTHER April 8, 1974.

(M .. H. BEG, Y. V. CllANDRACHUD·AND V .• R .. KRISHNA IYER, JJ.J

Code of Criminal Pr'Ocedure, 1908-A.ppeal against acqui1tal-Propriety oft Court of Appeal convicting sQme of the acquit1ed persons-Group clash-Scope of High CC?_url's power to re-evaluate evidence-Foundation for acquittal is re-mov~ by otherwise credi'ble testimony.

In background of bitter hclstility, there was confrontation and exchange of violence between the comp1ainants' group and that of all the ~ccused-appel­lants. Several. on the prosecution side sustained gunshot wounds, although not fatal, while the three accused-appellants received lathi blow injuries. The com.;.. plainatit'.s plea was· that when attacked by guns, he and his men went at them~ di'sarD;Ied . them and beat them with lathis. Twenty-three accused stood trial. The trial court disbelieved the defence version out. found that the prosecution testimony too partisan, and consequently acquitted everyone. The High Court maintained the acquittal of all but the three appellants-accused. In respect of the latter, it found tht1.t the injuries on the persons of the three appe1la·nts and the fact that one of them had gun in his hands at the time of the occurrence. were sufficient, together with the Qt her eVi~enCe to hold them guilty. On appeal by special leave to this Court by the said three appellants,

HELD: (1) The principle of law is well established that merely b:cause diffcrept view of the evidence is possible, you cannot cancel finding against guilt Dot the appellate Court is· untrammelled in its power to re-evaluate the eviden~ bearing in minQ the seriousness of overthrowing an acquittal once recorded. In. that view we cannot find any error of 'aw in th~ High Court reconsidering ¢he probative value· of the oral and circumstantial evidence in the case. Nor are we persuaded to think that the a!')pellate Court has failed to observe. the built-in. -restraints on .exercise of rower while upsetting an acquittal. On the other hand~ the Court has made the correct approach that only those accused against whom there was additional probative rei_nforcement could be convicted. [864 G-865 BJ\

(II) Neither mere possibilities nor remote· pro1babilities nor ·mere doubts which are not reasonable can, without danger to the administration. of justice,. be the foundation of the acquittal of an accused person, if there is Qt[herwise fairly credible testimony. If trial Courts~ judgment v~rges on the perverse, the appellate Court has duty to set the evaluation right and that is about all that has happened in this case. [865 E-F] (III) . The fact that large numb:r of accused have been. acquitted and th:· remaining· who have been convicted are less than five cannot vitiat'! th~ con· viction under s. 149 read with the substantive offence if-as in this case the· Court has taken care to find-'-there· are other persons who might not have been· identified or convicted but were party· to the crime and together constituted the· statutory number. On this basis, the convktion under s. 307, .read with s. 149' has to be sust~ned. [866 A·B] ·

Sukh Ram v. State of U.P. A~I.R. 974, S.C. 323, referred to.

Bharwad Mepa Dana v. State of Bombay. [1962) 2 S.C.R. 172. relied Oll.

CRIMIN,AL AnELLATE JURISDICTION :-Criminal Appeal No. 40· of 1971.

Appeal by special leave from the Judgment anrl Order dated· the 21st September, 1970 of the Allahabad High. Court at Allahabad in Criminal Appeal No. 944 of 1967. 12-LB4Sup. CI/75

[1974] 3 S.C.R.

8 A4 SUPREME COURT REl'ORTS

/\. L. Ko.'ili, for the appellant.

0. l'. Rana; for respondent No. 1, · ·

·The Judgment of the Court was delivered by:_

KRISHNA IYER, J.-This appeal by special leave, by three out of twenty three, who alone were convicted by the High Court in .reversal of total aoquittal by the trial court, turns on the propriety of the Court of _Appeal convicting accused persons whose initial advantage of presumption of innocence has been strengthened by judicial affir.mation at the first level.

The !ew facts are these. Two groups-the complainants' and the accused's-have been on terms of bitter hostility-a background mate· rial ,\~hich has kgitimately induced both the courts to be very scepti-cal about the veracity of the prosecution witnesses in the absence of unlying corroborat10n. As found by both the courts, confron" talion and· exchange of violence occurred on June 22, 1964 each party caliing the other aggressor. Anyway, ·several on the prose-cution side. dia receive gunshot wounds, although luckily not fatal, and three among the accused bunch had on their person lathi blow injuries. The trial Judge disbelieved the version of the defence but found the P.Ws. too partisan to pin his faith on, and in consequence acquitted everyone. The High Court agreed that unless the infirmity of interested testimony was cur,d by other credible evidence the fate of the case would be the· same and on that basis dismissed the State's appeal against ali but the three appellants befor-e us. Was this ex-ceptional treatment justified (a) by the evid_ence, and (bl in the light cf first court's acquittal ?

• • I -

. -• • I -.An encounter did take place and case and counter-case ensued. The accused-except few· who pleaded alibi in vain-daimed that faey were attacked. Even the trial court has rejected this contention 1nd the High Court has held that, having regard to the number and nature of injuries an:d the number of persons who bave been hit by fire power, the accused were the attackers. We see no reason to disturb this conclusion. Even so, how could you hand-pick three out cf twentr three for · punishment? The complainant's plea is that when attacked by guns he and his men went at them, disarmed them and boat them with lathis. The convkted three have injnries which ·fit in with this version. The appellate Court has taken these injuries :is corroborative of participation in the rioting and attempt to murder (reod with s. 149, J.P.C.) charged against all the accused. The short question is whether these wound bring home the guilt so .strongly as to warrant upsetting of an earlier acquittal. : .

· · The principle of law is well-settled that merely because dif-fereni view of the evidence is possible--minds differ as rivers differ-you cannot cancel finding against guilt. But the appellate Court is untrammelled in its power to re-evaluate the evidence bearing in mind · the seriousness of overthrowing an acquittal once recorded. In that view we cannot find any error of law in the High Court

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._ __ _

rec:onsidering the probative value of the oral and circumstantial evi-dence in the case. Nor are we persuaded to think that the appellate Court has failed to observe the bui!Hn restraints on exercise ol power while l!psdting an acquittal. On the other lund. the Cour< has made the correct approach that only those accused against whom there was additional probative reinforcement could· be convicted. So, it found. that the injuries on the persons of the three appellants and the fact . that Si ya Ram, appellant No. 2, had gun in his hands at the time of the occurrence were sufficient, together with the other evidence, to hole the appellants guility.

We cannot part with this case without mentioning the serious error sonie subordinate courts commit in. the application of the rule of benefit of reasonable doubt. For instance, in the preocnt case the learned Sessions· Judge has misguided himself by chasing bare pos-sibilities 6l' doubt and exalting them into sufficiently militating factors justifying acquittal. The following passage illustrates the grievous mistake of the learned Judge : "I must concede that probabilities for such situation are remote but possibilities cannot be ruled out. We hav~ to see whether the incident took place in the manner as alleged by the prosecution or not. To inspire confidence of _ the Court the prosecution has to establish each link in its version beyond all doubts. When other links in the prose-cution, as discussed above; have failed to inspire confidence, I think in such case the benefit of doubt prevailing around the remaining links in the version must go to the accus-E ed."

Neither mere possibilities. nor remote probabilitie~ nor mere doubts which are not reasonable can, without danger to the admhllstration of justice, be the foundation · cif the acquittal of art accused person, if there js other}Yise fairly credible testimony. If trial court's judg-ment verges on the perverse, the .appellate court_ has duty to set the evaluation right and that is about all that has happened in this case. The High Court has given large margin for reasonable donbt and confirmed the acquittal of considerable number of the accus-ed. --

Although the surviving accused who have been convicted are only three, s. 149, and in any case s. 34, I.P.C., will rope in the appel-G ants by way of constructive liability. This Court has, in Sukh Ram v. State of U.P.,([1]) held that the acquittal of two ·out of three named accused does not bar the conviction of the third under s. 302, read with s. 34, if he is shown to have . committed the offence with un-known companions. As in that case, here also no possible prejudice can be claimed by the accused-appellants by the invocation of s.34, LP.C., even if tw~n!y out of twentv three have been acquitted. More-over, this Court has in Bharwad Mena Dana v. State of, Bombay(2)

(I) A.T.R. 1974 S.C. 323.

(21 (1962] 2 SCR J72. . ·

taken the view that nothing in .law prevents the .court from fin.cling that the unlawful assembly consisted of less than five convicted per-sons and some unidentified persons together numbering more than !iv,.._ In: our ·view, the fact that large number of accused have been acquitted and the remaining who have been convicted are less than five cannot vitiate the conviction under s. 149 read with the substantive offence if-as in this case the Court has taken care to find- there are other persons who might not· have be-on identified or convicted but were party to the crime and together cc/nstituted the statu'.ory number. On this basis, the conviction under s. 307, read with s. 149, has to be sustained.

What remains is the Question of sentence. It is true that those assailants who did not receive injuries have escaped punishment aed conviction has been clamped down on those who have sustained inju· ries in the course of the clash. It is equally true that those who have allegedly committed the substantive offences have jumped the gaunt-let of the law and the appellants have been held guility only con,._ trUctively. We also notice that the case has been pending for around ten years and the accused must have been in jail for some time, circumstance which is relevant under the new Criminal Procedure Code rhou~ it has come iriJ.i.i operation only from April 1, 1974. Taking conspectus of the 'Various circumstances in the case, some of which are indicated above, we are satisfied that the ends of justice would bo met by reducinii· the sentence to three years rigorous impri-sonment under s. 307, read with s. 149, and one yeacrigorous im-pri<onment under s. 147, I.P.C., the two terms running concurrently. \ViL'i this modification regarding sentence, we dismiss the appeal.

Appeal dismissed.