minal Appeal No 226 of 1970
Appeal by special leave from the judgment and order dated the 14th April 1970 of the Allahabad High Court Lucknow Bench at Lucknow in Criminal appeal No 260 of 1968
A N Mulla and O N Mohindroo for the appellant
O P Rana for the respondent
The Judgment of the Court was delivered by KHANNA J
Barati 26 was tried in the court of Sessions Judge Sitapur for an offence under section 302 Indian Penal Code for causing the death of Lekhai 45
Prabhu 24 and Ram Lal 24 were also tried along with Barati for offence under section 302 read with section 109 Indian Penal Code for having abetted the commission of the offence of murder
Learned Sessions Judge acquitted all the three accused
On appeal filed by the State the Allahabad High Court convicted Barati under section 302 Indian Penal Code and sentenced him to undergo imprisonment for life
The appeal against Prabbu and Ram Lal was dismissed
Barati then came up in appeal to this Court by special leave
The prosecution case is that the relations between Lekhai deceased and his younger brother Pancham PW 3 on the one side and Barati accused on the other were strained
All three of them belong to village Nasirapur in district Sitapur
Dispute had been going on between them regarding the construction of a wall
About a couple of months before the present occurrence Baratia effected an opening in the western wall of his house which gave rise to an apprehension that he intended to encroach upon the land belonging to Lekhai and Pancham
Pancham made complaint dated May 27 1967 to the Judicial Panchayat in that connection
The said complaint was still pending when the present occurrence took place
About three days prior to the present occurrence Barati and Prabhu accused after arming themselves with lathis went to the door of Lekhai and Threatened to assault him
Mainku PW intervened and persuaded Barati and Prabhu to go away
On the evening of July 30 1967 it is stated Lekhai deceased after taking his meals was lying on a cot in an open space near his baithak
Lekhai s son Nagai PW 1 and brother Pancham PW 3 slept nearby on another cot
A lighted lantern was hanging nearby
At about 1030 pm the three accused came there
On hearing some sound Lekhai opened his eyes
Lekhai saw the three accused standing near the cot
Ram Lal accused is the brother in law of Barati accused
At the instigation of Ram Lal and Prabhu it is stated Barati accused who was holding a bottle poured acid over Lekhai
Lekhai cried aloud and shouted that he was being killed
On hearing the cries of Lekhai his son Nagai and brother Pancham got up from their cot and saw the three accused standing there
Barati accused was holding a bottle in his hand
Nagai and Pancham too raised alarm whereupon 572 Bhallu PW 2 and Jeorakhan PW 4 whose houses are nearby also arrived there with lighted torches and lathis in their hands
On seeing them the three accused ran into the house of Barati and closed the door from inside
Nagai and others chased the accused and knocked at the door of the house but the accused did not open the door
Nagai Pancham Bhallu and Jeorakhan were told by Lekhai that Barati accused had poured acid over him
Badri Pradhan PW 6 also came there and on his enquiry he too was told by Lekhai that Barati accused had poured acid over him
Nagai Pancham Bhallu Jeorakhan and Badri Pradhan PWs saw acid present all over the body of Lekhai deceased
His clothes too were stained with acid
At the suggestion of Badri Lekhai was then taken in a bullock cart by Nagai and Pancham PWs to police station Sandhana at a distance of two miles from the place of occurrence
Report Ka 1 was lodged at the police station at 230 am by Lekhai
In that report Lekhai stated that Barati accused had poured acid over his body
The names of Nagai Pancham Bhallu and Jeorakhan were also mentioned in the first information report and it was stated that they had seen the accused present near his cot when Lekhai had raised alarm
The motive for the assault as given earlier was also given
After recording the first information report Sub Inspector Asrarul Haq PW 18 recorded statement Ka 22 of Lekhai
In that statement Lekhai reiterated what he had stated in the first information report
The Sub Inspector thereafter recorded the statements of Nagai and Bhallu PWs
Lekhai was then sent to Misrikh dispensary at a distance of about 12 miles from the place of occurrence
The party arrived at the dispensary at about 3 pm on July 31 1967
Soon thereafter Dr Bisht PW 5 recorded statement Ka II at 3 pm of Lekhai deceased
Lekhai was at that time in a fit condition to make statement
In that statement also Lekhai stated that Barati accused had poured acid over his body and as such had caused him injuries
The injuries of Lekhai were examined by Dr Bisht at 3 15 pm
As the condition of Lekhai was serious Dr Bisht referred the case of Lekhai to District Hospital Sitapur
Lekhai was then taken to the District Hospital Sitapur
The party arrived in the hospital at about 4 45 pm the same day but about an hour thereafter at 5 45 pm
Lekhai succumbed to the injuries
Post mortem examination on the body of Lekhai was performed by Dr N Verma on the following day ie August 1 1967 at 4 pm
Barati accused absconded after the occurrence
Proceedings under sections 87 and 88 of the Code of Criminal Procedure were initiated against him
Barati surrendered in court on August 17 1967
He was thereafter put under arrest
At the trial the plea of Barati accused with whom we are concerned was denial simpliciter
No evidence was produced in defence
The trial court did not place reliance upon the evidence of Nagai Pancham Bhallu and Jeorakhan PWs
The reason which weighed 573 with the trial court was that the witnesses were related to the deceased
The evidence with regard to the dying declarations of the deceased was not accepted by the trial court
The deceased in the opinion of the trial court became unconscious and as such was not in a position to lodge first information report Ka 1 or to make statement Ka 22
The trial court also rejected dying declaration Ka II recorded by Dr Bisht as it found the language of the same to be chaste and the same in the opinion of the trial court was not expected of a rustic living in a village
In the result the accused were acquitted
On appeal the learned Judges of the High Court accepted the evidence of Nagai Pancham Bhallu and Jeorakhan PWs as well as the evidence about the dying declarations made by the deceased
The High Court also took note of the fact that Barati accused had a motive to assault the deceased and that when witnesses knocked at his door he instead of professing his innocence did not open the door
Reference was also made to the fact that Barati accused had absconded after the occurrence
In the result the appeal against Barati accused was accepted and he was convicted and sentenced as above
So far as Ram Lal and Prabhu accused were concerned the High Court gave them the benefit of doubt and as such acquitted them
In appeal before us Mr Mulla on behalf of the appellant has urged that the High Court should not have reversed the judgment of acquittal of the trial court in respect of the appellant
According to the learned counsel the evidence relied upon by the High Court is not satisfactory and as such the conviction of the appellant cannot be based upon it
In reply Mr Rana has canvassed for the correctness of the view of the High Court
It cannot be disputed that acid was poured on Lekhai deceased on the night of July 30 1967 as a result of which he died
Dr Bisht who examined Lekhai deceased on July 31 1967 at 3 15 pm found the following injuries on his person  Burnt area of black colour on the left side of the face on both sides of the neck on the front part of the whole chest on the right arm right fore arm and back part of right palm on the front and back part of both shoulders
 Dr Bisht also found black marks caused by running down of fluid on the front and outer part of abdomen and on the vertebral column
Burnt areas of black colour were found by the doctor on the front and inner part of right thigh inner and upper Part of right leg and inner part of the left thigh in the middle
The injuries in the opinion of the doctor were previous and were caused by acid in liquid form
The injuries were about 12 to 24 hours old
Lekhai died at 5 45 pm on July 31 1907
Dr N Verma who performed the post mortem examination on the body of Lekhai on August 1 1967 at 4 pm found the following injuries on the body 574 1Corrosive burns area
There were marks of acidon the left side of the face in front and both sides of the neck in front of the chest and in front up and back side of the shoulders  upper side and in front of the right arm and in front and in several places of the other arm
In front and outer side of right thigh and in front inside of left shoulder in front and down part of the right leg and both sides of the back
The marks on account of pouring of acid existed on the left side of the face and also existed on both sides of the chest abdomen and shoulders the inner part of the skin and flesh of front of the chest neck side and several places became discolored by the action of acid
Injuries were on account of corrosion burns which were upto III IV V degree
 On internal inspection the brain and thin skin cover were found to be congested
The same was the condition of the longs larynx trachea and bones
The heart was full of blood while the stomach was empty
Death in the opinion of the doctor was due to shock as a result of the pouring of acid
The injuries were sufficient to cause death in the ordinary course of nature
The case of the prosecution is that it was Barati accused who poured acid over Lekhai deceased as a result of which Lekhai died
In support of this allegation the prosecution has relied in the first instance upon the four dying declarations of Lekhai deceased
The first dying declaration of the deceased was the one made by him to Nagai Pancham Bhallu and Jeorakhan immediately after the occurrence
It is in the evidence of these witnesses that they were told immediately after the occurrence that it was Barati accused who had poured acid over him
There appears to be no cogent reason to disbelieve the above evidence of the witnesses
The trial court in our opinion was wholly in error in rejecting the evidence of these witnesses on the ground that they were related to the deceased
Close relatives of the deceased would normally be most reluctant to spare the real assailant and falsely mention the name of another person as the one responsible for causing injuries to the deceased
Lekhai deceased also told Badri Pradhan PW 6 who arrived at the place of occurrence on hearing alarm that Barati accused had poured acid over him
No cogent ground has been shown as to Why the above evidence of Badri Pradhan be not accepted
All that was suggested on behalf of the accused was that Badri was inimical to Prabhu accused
If that was so no reason has been shown as to why Badri should attribute the major part in the assault on the deceased to Barati accused and not to Prabhu
It is also plain that Lekhai deceased must have seen as to who was the person who poured acid over his body
The moment the acid first came in contact with his body the immediate reaction of Lekhai as of any other person would be to see as to who was responsible for all that
Even if the assailant took only a few seconds to pour acid over the body of Lekhai the latter would not have failed to fix the identity of the assailant during that short time
It is significant that Barati was no stranger to Lekhai
They were neighbours and were well known to each other
it is in our opinion most difficult 575 to believe that Lekhai would spare his real assailant and falsely mention the name of Barati as one who had poured acid over his body
Apart from the oral dying declarations made by the deceased to Nagai Pancham Bhallu Jeorakhan and Badri Pradhan PWs we have the evidence of Sub Inspector Asrarul Haq that the deceased lodged report Ka 1 at the police station at 230 am when the deceased was brought there in a cart
The deceased stated in that report that Barati accused had poured acid over him and thus caused him injuries
Sub Inspector Asrarul Haq thereafter recorded statement Ka 22 of Lekhai deceased
In that statement also the deceased reiterated that it was Barati accused who had poured acid over him and thus caused him injuries
We see no particular reason to disbelieve the evidence adduced by the prosecution regarding the dying declaration of Lekhai deceased contained in report Ka 1 and statement Ka 22
The trial court reacted the above evidence because it was of the view that Lekhai deceased as mentioned by him in dying declaration Ka 1 made to Dr Bisht had become unconscious after the occurrence
There was however nothing in that statement to indicate that Lekhai remained unconscious for a long time and as such was not in a position to lodge the first information report at the police station or make statement Ka 22 to Sub Inspector Asrarul Haq
The view taken by the trial court in rejecting the above evidence in our opinion was clearly erroneous 
Another dying declaration upon which prosecution has placed reliance was Ka 11 recorded by Dr Bisht in Misrikh dispensary According to Dr Bisht Lekhai was in possession of his senses when he made statement Ka 11
Dr Bisht is a wholly disinterested and respectable witness and there appears no reason as to why his statement regarding the dying declaration Ka 11 be not accepted
Dying declaration Ka 11 is a brief document consisting of about 9 or 10 lines
The statement incorporated in dying declaration Ka 11 is very simple and relates to the pouring of acid by Barati accused on Lekhai deceased
The fact that the language used in it is rather chaste would not go to show that the said statement could not have been made by Lekhai deceased
The statement of Lekhai in exhibit Ka 11 that Barati accused had poured the liquid from a bottle on him clearly establishes the guilt of Barati accused
Reference was made on behalf of the accused to the fact that statement Ka 11 was sent by Dr Bisht to Additional District Magistrate not immediately after recording that statement but on the third day
According to Dr Bisht the delay took place because of rush of work
No adverse inference in our opinion can be drawn from the fact that the dying declaration was sent by Dr Bisht on the third day after recording the same
The dying declaration bears the thumb impression of Lekhai deceased
Lekhai was sent from Misrikh dispensary soon after the dying declaration was recorded and his injuries were examined
There could be no possibility of any such dying declaration being prepared subsequently
576 Mr Mulla has pointed out that the language used in dying declaration Kall is chaste while that used in report Ka 1 as well as in statement Ka 22 has some words which are spoken by villagers
This fact in our opinion is not of much significance because there is nothing abnormal or unusual in the same person using colloquial language while talking to one person and using refined language while talking to another person
Apart from the dying declaration of the deceased we have the evidence of Nagai Pancham Bhallu and Jeorakhan PWs that they saw Barati accused with a bottle in his hand near the cot of the deceased when those witnesses got up on hearing alarm
The High Court accepted the evidence of these witnesses and we see no particular reason to take a different view
As mentioned earlier the reason given by the trial court in rejecting the evidence of these witnesses was wholly erroneous
It is well settled that the High Court in an appeal under section 417 of the Code of Criminal Procedure has full power to review at large the evidence on which the order of acquittal was founded and to reach the conclusion that upon the evidence the order of acquittal should be  reversed
No limitation should be placed upon that power unless it be found expressly stated in the Code but in exercising the power conferred by the Code and before reaching its conclusion upon fact the High Court should 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 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 real and reasonable 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
Keeping the above principles in view as well as the fact that the approach of the trial court was clearly unreasonable the High Court in our opinion was fully justified in setting aside the acquittal of Barati accused
There is in our opinion no force in the appeal which fails and is dismissed
PBR Appeal dismissed


Summary:
The appellant and his companions were charged with an offence under section 302 IPC for causing the death of the deceased by pouring acid on him when he was sleeping on his cot on the night of the occurrence
After recording the first information report the police sub inspector recorded the statement of the deceased and at the dispensary the doctor recorded the statement of the deceased in both of which he stated that the appellant poured acid over his body and caused injuries to him
The deceased succumbed to his injuries
Disbelieving the prosecution evidence the trial court acquitted him
The High Court on the other hand accepted the evidence of all the prosecution witnesses and convicted and sentenced the appellant to life imprisonment but acquitted the remaining two accused
In appeal to this Court it was contended that the High Court should not have reversed the judgment of the trial court and the evidence relied upon by the High Court was not satisfactory
Dismissing the appeal
HELD  that the approach of the trial court was clearly unreasonable and the High Court was fully justified in settingaside the acquittal of the
appellant
It is well settled that in an appeal under section 417 of the Code of Criminal Procedure the Court has full power to review at large the evidence on which the order of acquittal was founded and to reach the conclusion that upon the evidence the order of acquittal should be reversed
No limitation should be placed upon that power unless it be found expressly stated in the Code but in exercising the power conflict by the Code before reaching its conclusion upon facts the High Court should 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 real and reasonable doubt and 4 the slowness of an appellate court in disturbing the finding of fact arrived at by a judge who had the advantage of seeing the witnesses
576 D F In the instant case there was no doubt that the deceased died as a result of acid bums
There was no cogent reason to disbelieve the evidence of the prosecution witnesses
The trial court was wrong in rejecting evidence of these witnesses on the ground that they were related to the deceased Close relatives of the deceased would normally be most reluctant to spare the real assailant and falsely mention the name of another person as the one responsible for causing injuries to the deceased
The deceased would not spare his real assailant  and falsely mention the name of the appellant as one who poured acid over his body
There was no reason to discard the dying declaration made by the appellant to the police sub inspector The trial Court was wrong in rejecting the dying declaration to the police FIR on the ground that the deceased had stated to the doctor that he had become unconscious after the occurrence
There was nothing in the statement recorded by the doctor to indicate that the deceased remained unconscious for
a long time and as such was not in position to lodge the FIR The fact that the language used in the dying declaration made to the doctor was rather chaste would not go to show that the said statement could not have been made by the deceased
As to the language used in the dying declaration there is nothing abnormal or unusual in the same person using colloquial language while talking to one person and using refined language while talking to another person
574 E F  575D 576A 571