Criminal Appeal No 36 of 1979
From the judgement and Order dated 17111978 of the Madhya Pradesh High Court in Criminal Appeal No 477 of 1973
AN Mulla Dhruv Mehta Aman Vachher and SK Mehta for the Appellants
BY Kulkarni and Uma Nath Singh for Respondents
The Judgment of the Court was delivered by section RATANAVEL PANDIAN J
The two appellants namely Chandra Mohan Tiwari and Ram Pal Singh Sengar have filed this criminal appeal challenging the correctness and legality of the judgment and order dated 17th of November 1978 of the High Court of Madhya Pradesh at Jabalpur rendered in Criminal Appeal No 477 of 1973 whereby the High Court has allowed the appeal preferred by the State by setting aside the order of acquittal passed by the Trial Court and convicted the first appellant under Section 302 IPC and the second appellant under Section 302 read with 34 IPC and sentenced each of them to imprisonment for life
The matrix of the case which has led to the filing of this appeal briefly stated is as follow PW 6 Ahiwaransingh was at the material time a compounder in the Veterinary Hospital Budhni
He was residing in one of the quarters situated in the compound of the Veterinary Hospital
On the opposite side of compound there are Government quarters
One of which was occupied by appellant Ram Pal Singh Appellant No 2 who was serving as Gram Sevak in the Block Development office
He is married and distantly related to PW 6
The first appellant Chandra Mohan Tiwari was wielding high influence in that locality and was well known to the members of the family of PW 6
It appears that he contested the election to the Legislative Assembly from Budhni constituency
The members of the family of PW 6 included PW 5 the Deceased Saroj aged about 16 years who are PW 6 s wife and eldest daughter respectively
PW 6 had settled the marriage of his daughter Saroj at Dahiyapur Etawah District UP
On 2451970 he along with his deceased daughter Saroj left Budhni for Bhopal enroute to Dahiyapur
At Bhopal he stayed with his relative by name Arjun Singh
On 2551970 at 318 about 1100 AM PW 6 had gone to the market leaving Saroj alone in the house
According to the prosecution the second Appellant came to the house of PW 6 and told Saroj that her father wanted her presence for selection of clothes
Saroj believing the words of second appellant and without entertaining any doubt on the representation of the second appellant accompanied him in a jeep which was driven by the first appellant
Then she was taken to a house where she was wrongfully confined for about two and a half months
During this period both the appellants are stated to have forcibly committed sexual intercourse with Saroj
PW 6 lost his nerve on the sudden disappearance of his daughter but he instead of lodging a report with the police which evidently he thought would adversely affect the future life of his daughter and her impending marriage and also bring the family in disrepute unsuccessfully made a frantic and intensive search for his daughter
Then he lodged a report exhibit P10 on 381970 at the Police Station of Mangalwara alleging that he had reason to believe that Saroj might have been kidnapped by both the appellants
The police did not take any prompt action on the report
By that time the appellants on coming to know of the lodging of the report devised a plan fore stall any action being taken against them
The second appellant took Saroj in a taxi to Hoshangabad and left her near the police station with an instruction to lodge a false complaint at the police station that she was kidnapped from Bhopal on 2551970 by one Ramnath and Indrasen and was wrongfully confined by them
She was also threatened that the appellants would be keeping a watch over her and that in case she divulged the truth serious consequences would follow
As instructed by the second appellant Saroj lodged a complaint exhibit D15 on 981970 at Hoshangabad Police Station
However when she was taken to the Police Station Mangalwara in connection with the report lodged by her father PW 6 she told the entire truth to the police and her parents
Even then no progress was made in the investigation on the report of PW 6 at Mangalwara
So PW 6 made a fervent plea to the then Chief Minister of the State and requested him to take action in the matter
It was only thereafter on the instructions of the higher authorities wheels of investigation started moving on
The police after completing the investigation filed the charge sheet before the Additional District Magistrate Judicial Bhopal against both these two appellants for offences punishable under Section 363 366 and 376 IPC
The victim Saroj when examined before the Magistrate on 1271971 stated in her statement exhibit P25 that she was kidnapped by both the appellants and wrongfully confined and also subjected to sexual inter course and that she lodged the false report exhibit D15 at the Hoshangabad police station under duress and as instructed by the second appellant 319 herein
The Magistrate discharged the first appellant and committed the second appellant alone to take his trial
On a revision preferred against the order of discharge of the first appellant both the appellants were put up for trial before the third Additional Sessions Judge Bhopal in Sessions Case Nos 66 and 95 of 1972 for offences punishable under sections 363 366 and 376 IPC
During the said trial both appellants were on bail
The case was fixed for recording evidence from 2181972 on which date the victim Saroj was to be examined as a prosecution witness
While the matter stood thus according to the prosecution on 20672 Saroj lodged a report exhibit P7 at Budhni Police Station complaining that the second appellant had forcibly entered into the backyard of her house but took to his heels when she raised a hue and cry
In the above background the present occurrence had occurred on the intervening night of 2021st August 1972
The prosecution case is that on that fateful night the first appellant armed with a pistol and the second appellant with a farsa  entered into the house of PW 6 through the main door which was kept ajar by PW 5 who went out of the house of answer call of nature inside the compound and that the first appellant fired a shot which hit on the chest of the victim Saroj who was then in her bed and caused her instantaneous death
Both PWs 5 and 6 identified the appellants as the assailants
PW 6 tried to chase the appellants but he stumbled near the gate of the compound and could not apprehend them
The distress cries of PWs 5 and 6 attracted the neighbours to the scene
PW 6 narrated the incident to PWs 1 and 2 by mentioning the name of the appellants as the assailants and requested PW 1 to lodge a report at the police station
Accordingly PW 1 lodged the First Information Report exhibit P1 at 130 AM PW 18 the investigating officer took up the investigation during the course of which he inspected the scene of the occurrence held in quest and then sent dead body to the hospital for necropsy
On the next day ie on 21872 both the appellants were arrested when they had come to attend the hearing of the case of kidnaping and rape
After completing the investigation both the appellants were put up for trial
The Sessions Judge of Indore found both appellants not guilty of the offence of murder and consequently acquitted them
Feeling aggrieved by the judgment of the Trial Court the State preferred the appeal before the High Court which for the detailed discussion made in its judgment held that the prosecution has satisfactorily established the guilt of both appellants beyond all reasonable doubts allowed the appeal by setting aside the judgment of the Trial Court acquitting the appellants and convicted the first appellant under section 302 and the second appellant under Section 302 read with Section 34 IPC and sentenced each of them to undergo imprisonment for life
Hence the present appeal is preferred by the appellants on being aggrieved by the impugned judgment of the High Court
320 Mr AN Mulla the learned Sr Counsel appearing on behalf of the appellants after taking us in detail through the judgment of the courts below evidence of the prosecution as well as the defence witnesses and in particular exhibit D15 the First Information Report dated 9870 relating to the offence of kidnaping and rape registered on the basis of the complaint given by the deceased Saroj at Hoshangabad Police Station vehemently submitted that the prosecution has miserably failed to prove the motive for the occurrence
The learned counsel perfervidly advanced his argument inter alia contending that the High Court has erred in reversing the judgment of the Trial Court based on well reasoned and considered findings of fact ignoring the settled principles of law as laid down by this Court as regards the scope of interference of the High Court in an appeal preferred against an order of acquittal that the evidence of PWs 5 and 6 who had developed rancur and were inimically disposed towards the appellants ought not to have been accepted and implicitly relied upon as their testimony is highly tainted with interestedness that the contents of exhibit D 15 whereby the deceased had implicated Ram Nath Singh and one Indra Sen as assailants of kidnaping belie the version of PWs 5 and 6 and negative the prosecution story as far as the motive is concerned that the evidence of PWs 5 and 6 suffers from the vice of discrepancies and incongruities that the non recovery of any lota  a small vessel from the place where PW 5 was easing as well as the non marking of the place where the said vessel was kept in the site plan falsify the evidence of PW 5 that she opened the door and went near the compound wall to answer call of nature  that the recovery of two bullets from the scene is an indication of the fact that there should have been two shots that there was delay in laying the complaint that the unchallenged claim of the appellants that they were in Bhopal clearly shows that the appellants would not have come to Budhni from Bhopal that too at the odd hours with an anticipation that the door of the scene house would be kept open
The learned counsel further submits that had the appellants come to the scene house to assassinate the victim Saroj they would not have exposed themselves without covering their faces so that their identity could not be established and that the life of the girl might have been put to an end by inmates of the said house particularly her father on account of some conspiracy since the victim girl wanted to have the case of kidnaping and rape not to be proceeded with
Before adverting to the contentions urged by the learned counsel we would like to briefly state the legal position regarding the right of appeal of an accused person sentenced to imprisonment for life by the High Court after reversing the order of acquittal and the scope of interference in such appeal by this court
The present appeal is under Section 379 321 of the Code of Criminal Procedure of 1973 hereinafter referred to as the code  and Section 2a of the of 1970 hereinafter referred to as the Act of 1970  Section 379 of the Code contemplates that where the High Court has on appeal reversed an order or acquittal of an accused person and convicted him and sentenced him to death or to imprisonment for life or to imprisonment for the term of ten years of more that person may appeal to the Supreme Court
This section in newly introduced in the Code of 1973 Act 2 of 1974 on the recommendation of the Law Commission of India in its 41st Report
Article 134 1 a of the Constitution envisages that an appeal shall lie to the Supreme Court from any judgment final order or sentence in a criminal proceeding of the High Court in the territory of India if the High Court has on appeal reversed an order of acquittal of an accused person and sentenced him to death
To say in other words under Article 134 1 a the absolute right of appeal to the Supreme Court is restricted only to cases where the High Court reverses an order of acquittal passed by the Trial Court and awards the sentence of death
The right of appeal is also extended under Article 134 1 b to cases where the High Court has withdrawn for trial before itself any case from any court subordinate to its authority and has in such trial convicted the accused person and sentenced him to death which type of cases are rare and infrequent occurrence
Under clause c of the above said Article an appeal lies to the Supreme Court on a certificate under Article 134 A by the High Court certifying that the case is a fit one for appeal to the Supreme Court but of course subject to the proviso to Article 134 1
In this connection it is pertinent to note that the Government of Madras as then called expressed its view that the limited right of appeal now conferred in case of the persons sentenced to death by clauses a and b of Article 134 1 should be enlarged and that in all cases in which the accused persons are sentenced to death there should be a right of appeal to the Supreme Court without the need of a certificate from the High Court
This view was rejected by the Law Commission of India in its 14th Report stating that even in cases not covered by clauses a and b of Article 134 1 the High Court has the power to certify the case as a fit one for appeal to the Supreme Court under Clause c and further there is also the safeguard provided by the wide powers of the Supreme Court under Article 136 which confers a discretionary power on the Court to interfere by granting special leave to appeal in suitable cases including cases where the High court has refused to grant Certificate for appeal under Article 134 A
See the decision of the constitution Bench in Tarachand vs State of Maharashtra    and the later decision in Krishan and others vs State of Maharashtra
322 To avoid proliferation we are not citing all the decisions on this aspect
The reason given by the Law Commission in its 14th Reports Volume I at page 52 for rejecting the view of the Government of Madras is as follows We are not inclined to accept this view
For over a century such cases have been dealt with by the High Courts subject to the superintendence of the Privy Council under its special leave jurisdiction and there is no reason why the High Courts should not continue to deal with such cases in the same manner
 In 1968 a Private Member s Bill was introduced in Parliament which proposed that the limited jurisdiction of the Supreme Court contemplated under Article 134 1 a and b should be enlarged to cover cases where the High Court has after reversing an order of acquittal sentenced a person to imprisonment for life or for 10 years or more
Be that as it may in its 41 st Report the Law Commission expressed its view that the limitation of the right of appeal under Article 134 1 a and b applies only to cases of death but not to cases of imprisonment for life awarded by the High Court or appeal against acquittal and that limitation is too stringent and not easily justifiable and that the convicted persons ought to have a right of appeal in such cases
The Law Commission at the same time was not in favour of extending this right of appeal in which the High Court has on appeal against acquittal sentenced a person to imprisonment for a term of 10 years or more and proposed a new Section 417 B restricting such appeal to the Supreme Court only in cases of sentence of imprisonment for life
While so the Joint Select Committee by its report dated 4th December 1972 drafted clause 379 original clause 389 of the Code of Criminal Procedure Bill 1970 page xxvi which reads thus The amendment has been made to bring the provision of the clause in line with the provisions of the 
Vide the 14th Report of the Law Commission at page 52 and the 41st Report of the Law Commission paragraphs 3165 to 3169 at pages 281 283
Section 2 of the Act of 1970 reads thus  2
Enlarged appellate jurisdiction of Supreme Court in regard to criminal matters
Without prejudice to the powers conferred on the Supreme Court by clause 1 of article 134 of the Constitution an appeal shall lie to the Supreme Court from any judgment final order of sentence in a criminal proceeding 323 of a High Court in the territory of India if the High Court a has an appeal reversed an order of acquittal of an accused person and sentenced him to imprisonment for life or to imprisonment for a period of not less than ten years  b has withdrawn for trial before itself any case from any court subordinate to its authority and has in such trial convicted the accused person and sentenced him to imprisonment for life or to imprisonment for a period of not less than ten years
 The right of appeal under the above Section to the Supreme Court is an addition to those provided under Article 134 1 of the Constitution
In cases which do not come under clauses a and b of Article 1341 or under the Act of 1970 or Section 379 of the Code an appeal does not lie as of right to the Supreme Court against any order of conviction by the High Court
In such cases appeal will lie only if a certificate is granted by the High Court under sub clause c of Article 134 1 certifying that the case is a fit one for appeal to the Supreme Court or by way of special leave under Article 136 when the certificate is refused by the High Court
See Mahebub Beg and others vs State of Maharashtra SC CR
A 12064 dated 1931965 reported in and Babu vs State of UP    The resultant position of law from the conjoined reading of the above provisions of the Constitution the Act of 1970 and the Code of Criminal Procedure is as follows 1 Under sub clause a of Article 1341 an appeal lies as of right to the Supreme Court in a case where the High Court has reversed an order of acquittal of an accused person and sentenced him to death
2 Under sub clause b of Article 134 1 an appeal lies as of right to the Supreme Court in a case where the High Court has withdrawn the case for trial before itself from any court subordinate to its authority and sentenced him to death
3 Under Section 2 a of the Act of 1970 an appeal lies as of right to the Supreme Court in a case where the High Court has reversed an order of acquittal of an accused person and sentenced him to imprisonment for life or imprisonment for a period of not less then 10 years 324 4 Under Section 2 b of the Act of 1970 an appeal lies as of right to the Supreme Court in a case where the High Court has withdrawn for trial before itself any case from any court subordinate to its authority and has in such trial convicted the accused person and sentenced him to imprisonment for life or imprisonment for a period of not less than 10 years
5 Under Section 379 of the Code which is now newly introduced in line with the Constitutional provisions of Article 134 1 a and b and with Section 2 of the Act of 1970 an appeal lies as of right to the Supreme Court in a case where the High Court has on appeal reversed an order of acquittal of an accused person and convicted and sentenced him either to death or to imprisonment for life or imprisonment for a term of 10 years or more
6 In cases not covered by Article 134 1 a and b or Section 2 a and b of the Act of 1970 or by Section 379 of the Code of Criminal Procedure an appeal will lie only either on a certificate granted by the High Court under Article 134 1 c or by grant of special leave to appeal by the Supreme Court under Article 136
The right of appeal given under Section 379 of the Code is in line with Article 134 1 a and b and Section 2 a and b of the Act of 1970
This Court in Podda Narayana and others vs State of Andhra Pradesh   1975 Supp SCR 8 had an occasion to examine the scope of Section 2 of the Act of 1970 and held thus  As the High Court had awarded the sentence of life imprisonment after reversing the order of acquittal passed by the Additional Sessions Judge the appeal to the Supreme Court lies even on facts and as a matter of right under Section 2 of the 
MH Beg J as he then was speaking for the Bench in Ram Kumar Pande vs The State of Madhya Pradesh    observed as follow Strictly speaking no certificate of the High Court is required for such an appeal where an acquittal has been converted into a conviction under section 30234 IPC and a sentence of life imprisonment imposed upon an accused person
The appeal in such a case lies as a matter of right to this Court under the Act of 1970
 325 This Court in Rajendra Prasad vs State of Bihar    while disposing of an appeal preferred under Section 2a of the Act of 1970 laid down the following dictum Thus when two courts have come to a different conclusion on the same evidence we had ourselves to go through the entire evidence carefully in order to see whether the appreciation of the evidence by the Sessions Judge was so unreasonable and unrealistic as to entitle the High Court to interfere with the same
 In Kishore Singh and another vs The State of Madhya Pradesh AIR 1977 SC 2267   the following view similar to the one taken in Ram Kumar Pande s case was reaffirmed and it read thus  The High Court is not right in holding that a certificate is necessary under Article 134 1 c of the Constitution if the appellants have a right of appeal under Section 2 of the Act In Ram Kumar Pande s case the jurisdiction of the Supreme Court to interfere in a judgment of the High Court reversing the acquittal of the Trial Court and convicting the accused person and sentencing him to life imprisonment in respect of which an appeal to the Supreme Court lies as of right was examined and the following maxim has been laid down
The well settled rule of practice in a case of an appeal against an acquittal is that the appellate Court should not interfere with the acquittal merely because it can take one of the two reasonably possible views which favours conviction
But if the view of the Trial Court is not reasonable sustainable on the evidence on record the Appellate Court will interfere with an acquittal
If the Appellate Court sets aside an acquittal and convicts we have to be satisfied after examining the prosecution and defence case and the crucial points emerging for decisions from the facts of the case that the view taken by the Trial Court on evidence on record is at least as acceptable as the one taken by the High Court before we could interfere with the High Court s judgment
 Kailasam J speaking for the Bench in Bhajan Singh and others vs State of Punjab  dealing with the scope of the appeal before the Supreme Court filed under Section 2 a of the Act of 1970 observed thus  as a court of appeal this Court has got to go into all the 326 questions of fact and law and decide the case on its merit
After a right of appeal has been provided under the said section the question whether the High Court interfered on sufficient ground or not will not be material as this Court has to decide the case on its own merits
The decisions regarding the scope of appeal against an acquittal the powers of the High Court to interfere in an appeal against acquittal by the State which may be relevant when the Supreme Court is acting under Article 136 are not material in deciding an appeal by a person whose acquittal has been set aside by the High Court and who is entitled to prefer an appeal to this Court
 In Dinanath Singh  others vs State of Bihar AIR 1980 SC 1199   an appeal under Section 2 a of the Act of 1970 was directed against the judgement of the Patna High Court convicting the appellants therein under Section 302 read with 34 IPC and sentencing them to imprisonment for life by reversing the order of acquittal of the Trial Court
While disposing the appeal Fazal Ali
J speaking for the Bench pointed out thus It is now well settled by the long course of decisions of this Court that where the view taken by the trial court in acquitting the accused is reasonably possible even if the High Court were to take a different view on the evidence that is no ground for reversing the order of acquittal This court while disposing an appeal filed under Section 379 of the Code in Pattipati Venkaiah vs State of Andhra Pradesh affirmed the order of conviction passed by the High Court on the ground that the judgment of the Trial court acquitting the accused was extremely perverse and no other reasonable view was possible than the guilt of the accused
Reference also may be had to Sita Ram and Others vs State of UP 1979 2 SCC 656 and Rajput Ruda Meha and Others vs State of Gujarat This Court in a catena of decisions have dealt with the power of the High Court to review evidence and reverse order of acquittal and laid down the guidelines in exercising that power
Though it is not necessary for us in the present case to deal with all those decisions the following may be referred to  327 Roop Singh and others vs State of Punjab     Dargahi and others vs State of UP AIR 1973 SC 2695   Barati vs State of UP AIR 1974 SC839    GB Patel vs State of Maharashtra     and Kanwali vs State of UP
Having regard to the above principle of law we shall now carefully scrutinize the entire evidence adduced by the prosecution and examine the contentions advanced by Mr Mulla and decide the case on its merit independent of the views expressed by the High Court in its impugned judgment  Motive for the murder There is overwhelming evidence both oral and documentary in clearly establishing a strong motive for the appellantsaccused to put an end to the life of the deceased Saroj who when examined before the Magistrate on 1271991 had deposed under exhibit P25 that she was kidnapped by both the appellants wrongfully confined and subjected to sexual intercourse though she initially lodged a report under exhibit D 15 on 9870 at the Hoshangabad police station against some other persons exculpating these two appellants
Earlier to her examination before the Magistrate the deceased lodged a report exhibit P 7 on 2061972 at Budhni police station complaining that the second appellant had forcibly entered into the backyard of her house and on her raising a cry he took to his heels
The trial of the case against both the appellants before the Additional Sessions Judge Bhopal in Sessions Case Nos 66 and 95 of 1972 under Sections 363 366 and 376 IPC was fixed for recording the evidence of the victim in that case namely the deceased herein from 2181972
Both the appellants were on bail in the case of kidnaping and rape during the period of the occurrence in question which occurred on the intervening night of 2021st August 1972
The learned counsel for the appellants has submitted that PWs 5 and 6 had sufficient motive to implicate both the appellants in this heinous crime of murder as these two appellants according to both PWs had spoiled the future career of their daughter deceased Saroj by kidnaping and committing rape on her even if the identity of the real assailantassailants was or were not known and further there was every possibility of PW 6 falsely implicating these two appellants on strong suspicion
As stated by Fazal Ali J in State of Punjab vs Pritam Singh when the motive was equally balanced the Court had to look to surrounding circumstances in order to find out the truth
 328 This is not a case solely based on circumstantial evidence but on the other hand there are two eye witnesses to the occurrence namely PWs 5 and 6
The several impelling circumstances attending the case namely the prior incident of kidnaping and rape the conduct of the deceased Saroj in giving her statement under exhibit P 25 supporting the case of the prosecution registered on the complaint given by PW 1 at the instance of PW 6 the lodging of the complaint under exhibit P 7 by Saroj on 20672 against the second appellant and lastly the posting of the case for recording the evidence of Saroj on 21872 when taken in conjuction with the evidence of PWs 5 and 6 unevasively and unerringly show that these two appellants had strong motive to snap the life thread of the victim so that she could not give evidence on the next day in the case of kidnapping and rape
The contents of exhibit D 15 cannot be said to have whittled down the veracity of the prosecution case as regards the motive for the occurrence
On the other hand the subsequent statement made by the deceased under the exhibit P25 explaining under what circumstances she was forced to give exhibit D 15 would also serve as a corroborating piece of evidence in establishing the motive for the occurrence
Ocular Testimony  As per the prosecution due to the above motive the appellants have resorted in perpetrating this dastardly and heinous crime PWs 5 and 6 though the parents of the victim are the natural and probable eye witnesses as the incident had occurred in the odd hours inside their house wherein these two witnesses and their 4 daughters including the deceased Saroj were the inmates
According to these two witnesses by about 12 or 1230 mid night PW 5 went out of the house by opening the main door to answer call of nature within the compound
Besides moon light there was electric light within the compound
Added to that there was also electric light burning in the residential quarter of Doctor Sahib shedding light inside the compound of the scene house
PW 5 sighting the two appellants yelled out
She found the appellant Chandra Mohan Tiwari having a small gun and the second appellant Rampal Singh being armed with a farsa
On hearing the cry of PW 5 Saroj woke up
PW 6 who had earlier been awakened by his wife PW 5 saw both the appellants entering into his house with their respective weapons
The deceased Saroj on seeing the two appellants hardly uttered Babaji 
Suddenly the first appellants fired a shot which hit Saroj
On receipt of the injury Saroj fell down on her cot
Thereafter both the appellants fled away
PW 5 witnessed both the appellants entering into the room and heard the sound of a gun shot and the 329 appellants thereafter running out of the house
While PW 5 yelled out PW 6 ran after the appellants up to the compound shouting that the appellants had fired a gun shot at Saroj
On coming out of the compound PW 6 fell down
PWs 1 2 and others who rushed to the scene on hearing the shrieks and shouts of PWs 5 and 6 lifted PW 6 and brought him inside the house
PWs 1 2 and others asked PW 6 as to what had happened
PW 6 told them that the first appellant had fired a shot at his daughter Saroj and thereafter both the appellants had fled away from the scene
The victim Saroj by that time was struggling for breathing and gasping
PW 1 has testified to the fact that he arrived at the scene on hearing the shouting of PW 6 killed killed  and found PW 6 lying down outside the main gate of his compound that PW 1 and others lifted PW 6 and brought him inside the house that on being asked PW 6 informed PW 1 and others that Sengar and Tiwari referring to both appellants had shot at his daughter and that PW 6 requested him to lay a complaint at Budhni Police Station
The Trial Court for the reasons given in its judgment observed that the evidence of PW 5 as regards to the identity of the appellants is totally unreliable and that of PW 6 appears to be absurd and fantastic and finally concluded thus  
I find the two accused persons had no motive to perpetrate the crime in question that one Gungasingh and possibly the father of the girl Ahivaransingh might have had stronger motive for perpetrating the murder that it was impossible for the accused persons to have been present at Budhni at 1230 that night and that it is most likely that they have been falsely implicated in the murder by the political rivals of the accused Chandra Mohan Tiwari and with the motive of preventing the accused Ram Pal Singh over getting married to Saroj The entire prosecution as indicated ibid mainly rests on the evidence of PWs 5 and 6 who are the unfortunate parents of the victim and who speak about the motive of the occurrence and give a full detailed account of the entire incident
In addition to the ocular testimony of PWs 5 and 6 the prosecution also relies upon the evidence of PWs 1 and 2 who came to the scene spot immediately after the occurrence and learnt from PWs 5 and 6 that the appellants were the perpetrators of the crime
No doubt it is true that the evidence of PWs 5 and 6 is that of the interested party in that both of them are the parents of the victim and that they had animus towards the appellants
As dexterously emphasised by the 330 Supreme Court on many occasions that interested witnesses are not necessarily false witnesses though the fact that those witnesses have personal interest of stake in the matter must put the Court on its guard that the evidence of such witnesses must be subjected to close scrutiny and the Court must assess the testimony of each important witness and indicate the reasons for accepting or rejecting it and that no evidence should be at once disregarded simply because it came from interested parties
Vide Siya Ram Rai vs State of Bihar  Sarwan Singh vs State of Punjab  Birbal vs Kedar AIR 1977 SC1    Gopal Singh vs State of UP AIR 1979 SC1822   Hari Obulla Reddy  Others vs State of Andhra Pradesh 19813 SCC 675 and Anvaruddin  Ors
vs Shakoor  Ors
19902 Judgements Today SC 83
After carefully scanning the evidence of PWs 5 and 6 we unreservedly come to the conclusion that their evidence cannot be thrown overboard simply on the ground that their evidence is of the interested party because when the occurrence had taken place inside the house that too at dead of night it would be futile to expect of the prosecution to produce independent outsiders as witnesses
It was contended by Mr Mulla that PWs 5 and 6 could not have identified the assailants since according to PW 6 both assailants had covered their faces so that faces behind the mask could never be known to others and remain mystery for ever
But a careful reading of the evidence of PW 6 in our opinion does not support the conclusion sought to be arrived at by the learned defence counsel
What PW 6 had admitted in the cross examination is that both the appellants had tied a towel on their heads but their identity was visible
It transpired from the evidence of PWs 1 2 and 6 that PWs 1 and 2 who immediately came to the scene of the occurrence were informed by PW 6 that the assailants were the two appellants
The spontaneous declaration to Pws 1 and 2 by PW 6 without premeditation or any deliberation or artifice by naming the appellants as assailants can be admitted as resgestae and acted upon
It is significant to note in this connection that PW 1 who laid the First Information Report Ex P 1 within an hour from the time of the occurrence has mentioned the names of these two appellants as having been given by PW 6 at the scene immediately after the occurrence
The FIR has been lodged without any loss of time though it has been hesitatingly stated that there was a delay
The chronology of events narrated and the factual conspectus recounted by PWs 5 and 6 are unshakable and the intrinsic quality of the evidence of these two witnesses compel 331 this Court to implicitly rely on their testimony and to accept the same
In spite of the fact that these two PWs have been subjected to intensive and incisive cross examination nothing tangible has been brought for discarding their testimony
No doubt the earlier conduct of the appellants in kidnaping and forcibly raping their daughter the victim should have inflicted deeper wounds in the minds of these two witnesses but that cannot in any way destroy the value of their evidence which is cogent and trustworthy
PWs 3 and 4 who were examined by the prosecution to speak about the movements of the appellants near the scene at or about the time of the occurrence have resiled from their earlier statements and have not supported the prosecution case
The evidence of Pws 5 and 6 which is corroborated by various other circumstances would in our opinion suffice of record a conviction against the appellants
The Trial Court appears to have gone wrong in jettisoning the entire evidence in a very scanty and unsatisfactory manner with unsound reasoning
The non recovery of lota  a small vessel for taking water and the non marking of the place where the said vessel was kept in the site plan are too tenuous and they do not in any way belittle the veracity of the prosecution case
The recovery of the pellets below the dead body and the cork usually fixed on cartridges from the chest of the girl under the Memo exhibit P 4 as spoken by PWs 1 and 18 amply corroborate the evidence of PW 6 and support the prosecution case that the girl was shot dead in close range while she was on her bed
Being the parents of the victim they would be the least disposed to falsely implicate the appellants or substitute them in place of the real culprits
In our considered opinion whilst the conclusion arrived at by the Trial Court abjuring the unimpeachable and reliable evidence of PWs 5 and 6 on speculative reasons and unreasonable grounds the contrary conclusion of the High Court based on the evolution of the evidence does not suffer from any illegality or manifest error on perversity nor is it erroneous
Further on our independent analysis of the evidence we see absolutely no substantial and compelling reasons to brush aside the testimony of these two eye witnesses and to take a contrary finding to that of the High Court
Based on the evidence of DW 1 an advocate at Bhopal who defended the appellants herein in the kidnaping case and who had deposed that on the night of 20872 the first appellant was with him from 9930 PM to 12 mid night and who had filed exhibit P30 and application before the court stating that the first appellant was with him an argument was advanced that the appellants could not have gone to the scene village 332 Budhni from Bhopal when the distance between the two places is about 40 miles and committed the offence of murder
In support of the evidence of DW 1 reliance has been placed on the testimony of DWs 2 to 4 of whom DW 3 was the Proprietor of Chetna Lodge who had testified to the effect that the first appellant was in his lodge from 18th to 21st August as borne out from the entry in exhibit
A similar contention of alibi was also raised before the High Court on the basis of the evidence of the defence witnesses and the High Court after discussing and deeply examining the testimony of the defence witnesses made the following observations 1
It is with regret that we have to say that the testimony of this witness PW 1 does not inspire any confidence
It is surprising that the learned trial Judge should have placed reliance on the testimony of DW 2 Ramakant and DW7 Durgaprasad and come to the conclusion that accused Rampalsingh could not have been at the scene of occurrence as he was at Bhopal forty miles away from the scene of occurrence at the relevant time
 Further the High Court was correctly rejected the finding of the Trial Court as an unreasonable one holding  it is most likely that they have been falsely implicated in this murder by the political rivals of the accused Chandramohan Tiwari and with the motive of preventing the accused Rampalsingh ever getting married to Saroj
 We also after going through the evidence of the defence witnesses are unable to accept the plea of alibi and are in total agreement with the reasons given by the High Court for rejecting not the plea of alibi but also the defence that these appellants were implicated on account of political rivalry
Medical Evidence PW 17 who conducted autopsy on the dead body of the deceased found a lacerated wound on the chest just left the mid line at the level of nipple over the third fourth and fifth inter costal space
The wound was slightly oval shaped measuring 1 12 x 2 deep and opening into thoraic cavity
The surrounding skin was ecchymost but no tattooing of gun powder was noticed
The wound as described by the Doctor is a slit like small lacerated wound on the medial end of clavicle
On internal examination PW 17 he found comminuted fracture of sternum and second 333 third ribs of left side chest
There was a punctured wound on the medial border of left lung near its appex
He found one rounded pellet which has been recorded as bullet but has been clarified in the further chief examination as pellet which receives support from the evidence of PW 19 the ballistic expert in the left cavity of the chest embedded in the posterior wall of chest at scapular region at the level of second and third ribs
The Medical Officer is of the opinion that the death was due to severe fatal injuries to vital organs like left lung and heart resulting in profuse bleeding and shock
PW 19 after examining the two pellets and two wads marked as Ex
P1 and P 2 and W1 and W2 respectively gave his opinion that the holes found on the saree chader bed sheet and the blouse were gun shot holes and there was presence of blackening surrounding the holes on the chader and that the distance of firing should have been within one yard
The evidence of the Medical Officer PW 17 and of the Ballistic expert PW 19 amply corroborates the testimony of PWs 5 and 6 that the assailants whomsoever they had been should have entered into the room and shot at the victim standing within a close range
Mr Mulla advanced an argument that the recovery of the two pellets and two wads from the scene place is an indicative of the fact that there would have been two shots and that the presence of only one injury on the body of the deceased as per the evidence of PW 17 falsifies the present prosecution case that the victim was shot at only once
The presence of the pellets and two wads of course indicate that there ought to have been two shots but it does not necessarily follow that both the shots should have hit the victim probably one of the shots must have missed target
From the mere absence of two injuries on the body of the deceased no conclusion would be arrived at that the entire prosecution case is liable to be rejected
The further submission of the learned counsel that the appellants should not have come at the odd hours anticipating that the main door of the house would have been kept open does not appeal to us
Probably the appellants who came there with the intention of putting an end to the life of the victim by any other design should have taken this opportunity to enter into the house and shot at the deceased
Lastly a feeble argument was put forth by the defence stating that the father of the deceased and other inmates of the house on being aggrieved at the conduct of the victim should have put an end to the life of the girl by conspiring together
This submission has to be mentioned for 334 simply rejecting the same because had the father and other inmates of the house had already conspired to murder the girl they would not have waited for such a long time and ultimately killed her by shooting at her chest
No father however grave be the provocation at the hands of his daughter would resort in the normal course to kill his daughter or participate in any conspiracy to murder her
Moreover there is no circumstance in the present case even feebly or remotely indicating that the inmates of the house were responsible for the cause of the death of the deceased
In spite of our best efforts and great deal of pondering over the matter we find absolutely no reason much less compelling reason to disagree with the conclusion of the High Court since the organic synthesis of the events circumstances and facts of the case lead only to one conclusion namely that the prosecution has established that this preplanned and cold blooded murder executed in very cowardly and dastardly manner at a helpless and defenceless young girl was perpetrated by the appellants
We quite apart from the reason of the High Court even on our independent assessment and evaluations of the evidence hold that the finding of the Trial Court is not reasonably sustainable and that the prosecution has satisfactorily proved the guilt of the accused beyond any shadow of doubt and consequently the judgment of the High does not call for any interference
In the result the impugned judgment of the High Court is affirmed and the appeal is dismissed
TNA Appeal dismissed


Summary:
The writ petition and the SLPs were dismissed by this Court s order dated 5121991
Taking judicial notice of the fact that the rural areas had suffered for non availability of qualified doctors this Court suggested that some preference might have to be given to in service candidates who have done five years of rural service
HELD 101
The authorities might well consider giving weightage upto a maximum of 5 per cent of marks in favour of in service candidates who have done rural service for five years or more
The actual percentage would certainly have to be left to the authorities
327 B 102
This might act as an incentive to doctors who had done their graduation to do rural service for some time
326 E 103
The observation in Dr Dinesh Kumar and Others vs Motilal Nehru Medical College Allahabad and others 1986 3 SCC page 727 at 740 to the effect that no weightage should be given to the candidate for rural service rendered by him so far as admissions to post graduate courses are concerned is not the ratio of the judgment but a mere observation
336 H 337 A 104
The suggestions do not in any way confer any legal right on in service students who have done rural service nor do they have any application to the selection of the students upto the end of the year
337 B Dr Dinesh Kumar  Ors
vs Motilal Nehru Medical College Allahabad  Ors  at page 740 distinguished