N CRIMINAL APPEAL No 253 of 1971
Appeal by Special leave from the Judgment and order dated 1121971 of the Allahabad High Court in Criminal Appeal No 128570
O P Rana For the appellant Shiv Pujan Singh for the respondent The Judgment of the Court was delivered by 381 GOSWAMI J
This appeal by special leave at the instance of the State of Uttar Pradesh is against the judgment of acquittal of the High Court of Allahabad
Balram Ram Khelawan and Rhuddi are three sons of one Ram Charan
The injured Vishwanath PWI Shankar Kankar and deceased Chhannu are sons of Balram
Accused Sheo Murat Ram Kishan Shobha and Moti Lal are sons of Ram Khelawan
Accused Shyam Lal is the son of accused Ram Kishan
Shiv Nath PW 2 e and Jagan Nath are sons of Bhuddi
Thus all of them have branched off from Ram Charan and all the members have got share in their ancestral house at village Bhiwanipur
In this ancestral house Vishwanath Kankar Chhannu Jagan Nath and accused Ram Kishan along with his mother and married younger sister Bhagwantia resided
All others along with the rest of the four accused lived in a nearby separate house
on March 18 1969 certain quarrel ensued between Bhagwantia and Kankar s wife Patia
Vishwanath tried to pacify both the quarrelling women
Since Bhagwantia did not heed to Vishwanath s words the latter gave her one or two slaps
Ram Kishan and his brothers were not in the village on that day but learning about this incident on the following day accused Sheo Murat Ram Kishan Shobha Moti Lal and Shyam Lal went to Vishwanath s place at about 700 or 800 PM
What followed may be described in the words of the in jured Vishwanath On the next day at 7 or 8 PM
I was sitting at the door of my osara
My younger brothers Kankar and Chhannu were sitting at a short distance from me at the well
Sheonath my cousin was also sitting near Kankar and Chhannu
A burning lantern was hanging from a bamboo pole outside the osara and there was sufficient light from it
Ram Kishan Shobha Sheo Murat Shyam Lal and Moti accused present in the court came there Ram Kishan asked from me as to why I had slapped Bhagwantia and that I should come out and settle up
I stood up and said Brother what will you settle up
At this Ram Kishan instigated his companions saying Beat the salas
At once Shobha caught hold of my hand and Sheo Murat dealt knife blows to me
Chhannu my younger brother came to save me whereupon Shyam Lal and Moti caught hold of him and Sheo Murat started giving knife blows to him
On hearing their instigation Mohan Phool Chand Budhi and others came over there and began to forbid them
Chhannu and I fell down on sustaining injuries
Then all the five accused persons ran away with the knife
 What has been stated above by Vishwanath has been repeated by Shiv Nath PW 2 Hansla Prasad PW 9
Phool Chand PW 10 and Sohan PW 13
The story given by these witnesses remains absolutely unshaken in the scanty cross examination by the defence
Indeed there was little or no cross examination with regard to the incident itself
10 L522SCI76 382 Deceased Chhannu had the following external injuries on his person as stated by Dr U P Singh who held the autopsy 1 Incised stab wound 12X13 on right side chest 1 medical to right nipple going into the chest cavity
2 Incised stab wound 12x 14 x 1 to the right of left nipple and 1 below it going into the chest cavity
3 Incised stab wound 12x 14 abdominal cavity deep on lower part of right side abdomen
4 Incised stab wound 12x14on lower part of abdomen 3 above the joint of hip bones
S Incised stab wound 12x14 deep on left hip
6 Incised stab wound 12x14 chest cavity deep on left side back 6 below scapula
7 Abrasion 12x 12 lateral aspect of right elbow
8 Abrasion 12x12 on lateral aspect of right hand
Internal examination revealed that the cartilage of fifth rib had been cut under injury No 3
There were punctured wounds ill the chest cavity in relation to injury Nos
1 2 and 6
Right vertrical of heart had a punctured wound 14x14 and the pericardial cavity contained blood
The upper lobe of left lung had a punctured wound 12 X 14 in relation to injury No 2
In the opinion of the Doctor death was due to shock and haemorrhage resulting from injuries to heart and lungs
Another Doctor Siddiqui PW 5 found the following injuries on the person of Vishwanath 1 Incised wound 14x18x 1 12 deep on front side of lower part of neck directed downwards backwards and leftwords
The wound was in the middle of the neck and 1 above the bone
On coughing air passed through the wound
2 Incised wound 12x18x3 or more than this abdominal cavity deep 1 12 above and to the left of umbilious
Direction of wound was backwards slightly upwards and towards centre of abdomen
The injuries were fresh and described by the Doctor as dangerous
All the five accused were charged under section 302149 IPC for causing the death of Chhannu and also under section 307149 IPC for attempting to murder Vishwanath
While Sheo Murat was charged under section 149 IPC the other four accused were charged also under section 147 IPC
The Sessions Judge convicted accused Sheo Murat under section 148 307 and 302 IPC
He was sentenced to death under section 302 IPC to seven years rigorous imprisonment under section 307 IPC and to two years rigorous imprisonment under section 148 IPC
Accused Ram Kishan Shobha Moti Lal and Shyam Lal the present respondents were convicted under section 302149 IPC section 307 read with section 149 and section 383 147 IPC
These four accused were sentenced to one year s rigorous A imprisonment under section 147 IPC to seven years  rigorous imprisonment under section 307149 IPC and to imprisonment for life under section 302149 IPC
The sentences of all the accused were to run concurrently
The accused appealed to the High Court
There was also a reference under section 374 Criminal Procedure Code to the High Court for confirmation of the death sentence on Sheo Murat
Both the matters were heard together by the High 1 Court and a common judgment was delivered on February 11 1971
The High Court maintained conviction and sentence of the accused Sheo Murat under section 307 IPC and also maintained his conviction under section 302 IPC but reduced the sentence to imprisonment for life
The conviction and sentence of Sheo Murat under section 148 IPC were however set aside
The conviction and sentence of the four other accused the present respondents were set C aside
The State prayed for special leave against the rejection of the reference by reducing the death sentence to imprisonment for life but this Court rejected the same
The State s special leave application with regard to the respondents  acquittal was however admitted on October 13 1971 and non bailable warrants were issued against them
We are therefore not concerned in this appeal with the conviction of accused Sheo Murat who was the assailant of the deceased as well as of Vishwanath
We have to consider whether the High Court has committed a grave and palpable error in acquitting the respondents resulting in miscarriage of justice
It is well settled that in an appeal against acquittal this Court is slow to interfere with the decision of the High Court even though it has interfered with the conviction by the trial court where the same is reached after a proper appreciation of the entire evidence
The possibility that it may just be reasonably feasible for this Court to take a different view of the evidence from that of the High Court is not the test in an appeal against acquittal
Even so we are unable in this case to sustain the order of the High Court for the reasons which will presently follow
We have already quoted the evidence of Vishwanath which is unerringly corroborated by all the other eye witnesses
Both the trial court as well as the High Court believed the evidence
Indeed the High Court has observed and in our opinion rightly that there is no infirmity in the prosecution case
We then find that the High Court has read the evidence in a rather unusual way which is at once obvious when we peruse the judgment
We are not told wherefrom the High Court could describe the evidence as follows After reaching the house of Vishwanath they the accused persons entered into a conversation which became heated and ultimately ended in exchange of abuses
The High Court also observed that it is not at an clear from the prosecution evidence whether Shohha kept on holding Vishwanath till the very end ie 384 till both the knife injuries had been caused to him or whether he let go his hold as soon as Sheo Murat started the attack
The High Court further observed that there is nothing in the prosecution evidence to indicate in what order those injuries were caused to Chhannu and whether or not the injuries on the back were caused first
The High Court further gave unusual importance to the statement of PW 13 when he deposed in cross examination to the following effects I cannot remember whether the two persons who had caught hold of Chhannu had held him from the front or from the back or from the side
Further I do not remember whether they were holding him each with both his arms or whether each of them held him only with one arm
I do not re collect whether Sheo Murat had caused injuries to Chhannu from the front side or from the back side
We are unable to appreciate how the evidence of PW 13 who could not remember certain details could help the court in coming to any conclusion for the purpose of displacing the clear and unambiguous prosecution evidence
The injuries on the two victims are res ipso loquiter and tell tale
Accused Shobha caught hold of Vishwanath s hands and Sheo Murat gave him two stab blows one on the neck and the other on the abdomen
When deceased Chhannu advanced in order to save Vishwanath he was caught by accused Shyam Lal and Moti Lal and Sheo Murat gave as many as six stab injuries in quick succession
None of these stab wounds are on any part of the hands or arms which would have necessarily been caused if the victims were not caught hold of by a person or persons while they were attacked with a knife
It would be unnatural to expect that the victims would not have exercised their natural instinct of self preservation by trying to stave off the stab in juries by raising their hands
And in that process if they were not caught hold of by some person or persons there would have been one or two injuries on the hands or arms
This would clearly go to show that the story that Vishwanath was caught by Shobha and Chhannu was caught by Moti Lal and Shyam Lal as deposed to by the PWs stands corroborated by the medical evidence
The High Court completely ignored this most relevant and important aspect in the prosecution case but felt satisfied to acquit the accused on the sole ground that there was no evidence to show whether Shobha caught Vishwanath all the time when the two blows were given and also whether Moti Lal and Shyam Lal were catching hold of deceased Chhannu during the entire period of the assault
The High Court particularly felt in that direction because PW 13 being an independent witness could not re collect certain things to which we have already referred to above
The injuries would clearly show that the victims were caught hold of by a Person or persons when these were inflicted upon them
We are clearly of opinion that this is a completely erroneous view of the prosecution evidence adduced in this case resulting in failure of justice
We are further satisfied that if the High Court had not read 385 the evidence by introducing an extraneous gloss for the purpose of its A conclusion it could not have acquitted the accused
It is also evidence that the accused came in a body to challenge Vishwanath for the previous day s incident
Although the four respondents were unarmed Sheo Murat had a knife with him
There is nothing to show from the evidence that Vishwanath gave any provocation to the accused persons
He only replied to the challenge by saying Brother what will you settle up  At this Ram Kishan instigated the other accused persons saying beat the salas
At once accused Shobha caught held of Vishwanath s hands and Sheo Murat stabbed him twice with his knife
Assunung the respondents had no earlier knowledge about Sheo Murat s carrying a knife from this moment they came to know that Sheo Murat had a knife with which he had already stabbed Vishwanath
What did they then do when deceased Chhannu came to the aid of Vishwanath to save him from further assault  Now Moti Lal and Shyam Lal caught hold of Chhannu and Sheo Murat inflicted several stab blows in quick succession
It is therefore clear that Moti Lal and Shyam Lal shared the common intention with Sheo Murat in inflicting stab injuries to Chhannu by participating in the assault
Sheo Murat has been convicted under section 302 IPC
We may only give these two accused Moti Lal and Shyam Lal benefit of doubt with regard to participation with Sheo Murat in the common intention to cause death of Chhannu
It is however absolutely impossible to relieve them of any liability whatsoever in connection with the stab injuries which were facilitated by their catching hold of Chhanu when Sheo Murat was inflicting the stab wounds
There is no escape from the conclusion on this evidence that Moti Lal and Shyam Lal shared at least the common intention
with Sheo Murat to cause grievous hurt under section 326 IPC
A clear case has been established against both the accused persons under section 32634 IPC
They are therefore convicted under section 32634 IPC and sentenced to four years  rigorous imprisonment
With regard to accused Ram Kishan he merely instigated by saying beat the salas
He is the person who started the affair by challenging Vishwanath and also instigating the other accused persons to beat
From this alone it is not possible to attribute to him any common intention to cause more than simple assault
He is therefore found guilty only under section 323109 IPC
He is therefore convicted under section 323109 IPC and sentenced to rigorous imprisonment for one year
Accused Shobha who caught hold of Vishwanath to facilitate the two stab injuries on him by Sheo Murat is also guilty under section 32634 IPC
We are prepared to give him the benefit of doubt only with regard to section 307 IPC but the evidence clearly establishes the case under section 32634 lPC
He is accordingly convicted under section 32634 IPC and sentenced to four years  rigorous imprisonment
386 We should observe that no prejudice is caused to the accused by alteration of the conviction to section 32634 although they had been originally charged under section 302149 and section 307149 IPC on the particular facts of the prosecution case which clearly pointed to participation by the respective accused in the two attacks and which they had to meet in the trial
Since the respondents are detained in jail in pursuance of the non bailable warrants issued by this Court on October 13 1971 at the time of granting special leave they will be entitled to the benefit of section 438 Criminal Procedure Codes and that period shall be set off against the sentences which we have passed in this apepal
In the result the judgment of the High Court is set aside the appeal is allowed and the four accused stand convicted and sentenced as aforesaid subject to the observations mentioned above
SR Appeal allowed


Summary:
The accused and the deceased are close relatives as per the following pedigree Ramcharan 1 Ram Khelawan 2 Balram 3 Khuddi 4 Vishwanath Shankar Kanker Channu Shivnath Jagannath PWSI S2 S3 S4 PW2 Deceased Sheo Murat Ram Kishan Shobha Moti Lal Bhagwantia Acd SI Acd S2 Acd S3 Acd S4 Sister Dl Shyam Lal Acd Vishwanath Kanker deceased Channu Jagannath
accused Ram Kishan along with his mother and sister Bhagwantia were living in the ancestral house at village Bhiwanipur while the rest lived in a nearby separate house
On March 18 1969 Vishwanath tried to pacify the quarrel between his brother Kankar s wife and Bhagwantia his cousin sister and when she refused to heed to his words he gave one or two slaps to Bhagwantia
The real brothers of Bhagwantia viz Ram Kishan Shobha Moti Lal and Shyamlal so Ram Krishan all accused went the next day to Vishwanath s house and demanded an explanation for beating Bhagwantia and wanted a settlement
Since Vishwanath said there was nothing in fact to be settled Ram Kishan instigated the rest to beat Vishwanath
Shobha caught hold of Vishwanath while Sheo Murat dealt knife blows which resulted in two grievous incised injuries
Channu who came to the rescue was caught hold of by Shyam Lal and Moti and Sheo Murat dealt knife blows causing five fatal incised wounds and two abrasions to which he succumbed
On the above version of the incident by the injured Vishwanath PW 1 in the complaint and in evidence at the trial which was unerringly corroborated by PWs 9 10 13 and unshaken in the cross examination the Sessions Court convicted Sheo Murat under section 302149 IPC for causing the death of Channu and under section 307 149 I PC for attempting to murder Vishwanath though the charges were under section 302 307 and 148 IPC and sentenced him to death under section 302 IPC seven years  rigorous imprisonment under section 307 IPC and to two years  rigorous imprisonment under section 148
IPC Accused Ram Kishan
Shobha
Moti Lal and Shyamlal the respondents in this Court were convicted under section 302149 IPC under section 307 read with section 149 IPC and section 147 IPC They were sentenced to one year s rigorous imprisonment under section 147 TPC to seven year s rigorous imprisonment under section 307149 IPC and to imprisonment for life under section 307 149
The accused appealed to the High Court and there was a reference under section 374 Cr
PC for the confirmation of death sentence
By a common judgment the High Court i set aside the conviction and sentences 380 of all the present respondents and also that of Sheo Murat under section 148 IPC ii maintained the convictions under section 307 IPC and also under section 302 IPC but altered the death sentence to one of life imprisonment and rejected the reference
This Court rejected the State s special leave petition against the alteration of the death sentence but granted special leave against the acquittal of the respondents alone and issued non bailable warrants
Allowing the appeal and convicting the accused and sentencing them to different terms with the benefit of set off under section 428 Cr
PC Act 2 of 1973 tho Court  HELD 1 It is well established that in an appeal against acguittal this Court is slow to interfere under article 136 of the Constitution with the decision of the High Court
The possibility that it may just be reasonably feasible for the Court to take a different vie v of the evidence from that of the High Court is not the test in an appeal against acquittal
383 D E 2 In the instant case the injuries on the two victims are res ipso loquitor  and tell tale
The prosecution case that Vishwanath was caught by Shobha and Channu was caught hold of by Motilal and Shyamlal is corroborated by the medical evidence
None of the stab wounds are on any part of the hands or arms which would have necessarily been caused
if the victims were not caught hold of by a person or persons while they were attacked with a knife
It would be unnatural to expect that the victims would not have exercised their natural instinct of self preservation by trying to stave off the stab injuries by raising their hands
And in that process if they were not caught hold of by some person or persons there would have been one or two injuries on the hands or arms
The High Court completely ignored this most relevant and important aspect in the prosecution when it observed It is not at all clear from the prosecution evidence whether Shobha k kept on holding Vishwanath till the very end ie till both the knife injuries had been caused to him or whether he let go his hold as soon as Sheo Murat started the attack
There is nothing in the prosecution evidence to indicate what order those injuries were caused to Channu and whether or not the injuries on the back were caused first
This erroneous view taken by
the High Court of the prosecution evidence adduceed in this case and the introduction by the High Court of an extraneous gloss for the purpose of its conclusion viz After reaching the house of Vishwanath they the accused persons entered into a conversation which became heated and ultimately ended in exchange of abuses
resulted in failure of justice
383G H 384C E 3 No prejudice is caused in the instant case to the accused by alteration of the conviction to sections 32634 although they had been originally charged under section 302149 and sections 307149 IPC
On the particular fact of the prosecution case which clearly pointed to participation by the respective accused with tho two attacks and which they had to meet in the trial
385F G