# BAJWA & ORS v. STATE OF U.P. March 6, f973

- **Citation:** [1973] 3 S.C.R. 571
- **Court:** Supreme Court of India
- **Decided:** 1973
- **Bench:** A. Alagiriswami. J. D. Dua, C. A: Vaidialingam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bajwa-ors-v-state-of-u-p-march-6-f973-5904
- **Pages:** 16

## Headnote

Practice-Cnininc.-1
Law-Appe<1I
agaln~t
aequi.rtal-App11eciat1}Jn
of evidence by High Court-Approacli of Supre111e Court
in
JJurtherc.ppeal-Faclion cascs-Precau1io11s
Qgailist
i111plication
of
innocent
persons.
Jn dealing with appeals against acquittals the High Court has
to
bear in mind the presumption of innocence in favour of the a.ccused
person and cannot Jose sight the fact that the said
presumptiq-,
is
stfengthened by the order of acquittal passed in his favour
by
the
trial court, and so. lhe fact that the accused person is entitled to
the
benefit of a reasonable doubt must alWilys be present in the mind of
the High Court whe;r1 it deals with the merits of the case.
But, how.,
ever circumspect and cautiol,ls the approach of the High Court may be
in dealing with such appeals, it undoubtedly "is entitled to reach its
own conclusions upon the evidence adduced by the
prosecution
in
respect of the guilt or innocence of the accused. The observations in
the various decish11ns prescribing a cautious approach, on the part o.f
the High Court, in dealing with appeals against aequittals, do not cut
down, limit or qualify its statutory power under
s. 423(a)
Cr.P.C.,
which is co-cxtens'ive with that under cl. (b). It is not necessary
that
the High Court must hold that the trial Court"s finding
was perverse
before reversing it.
[581 A-D, F-H]
This Court, on appeal from a judgment of convictio,n after setting
aside an order of acquittal, would examine the ev'idence only for seeing
that the High Court has' approached the question properly ~nd applied
the principle~ correctly.
Once it is found that the High
Cou'rt
has
upplied correct principles in dealing with appeals
against
acquittals
then this Court would not ordinarily go further into the evidence and
weigh it for itself to substitute its owrr opin'ion for that of the High
Court merely as to its sufficiency to suppOrt the conclusions arrived at
by
the · High Court.
It
wilt
do
so only
if
there
is
some
serious,
infirmity
leading
to
grave
injustice.
In
c;ise
the
High
Court's judgment suggests that the correct principles were not kept in
view then it would be open to. this Court to examine the entire evidence
for t,hc purpose of assuring that justice does not fail [581 D-FJ
In the p'resent case, in the judgment of the High Court there is
trtO reference to the decisions of the Privy Council or of this
Court
laying down the principles which the appellate court is
expected
to
keep 'in view when dea1ing with appeals against
acquittal,
but
the
judgment clearly shows that it \Vent into all the
aspects
on
which
fie prosecution evidence could be criticised and
concluded
that
the
evidence was fully trustworthy Olld that the medical evidence, though
it might be shaky, did not throw onv doubt on the trustworthiness of
the pfosecution witnesses as to the time, place, and circumstances in
which . the deceased was killed.
The appreciation of the evidence
by
the :m~h Court is unexceptionable and there is no
questio.n
of
any
poss1b1hty of a reasonable ooubt on the co'nclusions 11bout the time
ahd place of occurrence and the n1anner in which the deceased met his
death.
[584 A-HJ
572
SUPREME COURT REPORTS
(1973) 3 S,C.R.
But in cases like the pres~nt-, where there are party factions, there
is a tendency to include the Innocent with the guilty and it is extremely
difficult for the Court to guord against such a danger. The only real
safeguard against the risk of condemning the itonocent with the guilty
lies in insisting on acceptable evidence which in some measure implicates such acused and satisfies the conscience of the court. [585 0-HJ
· In the instant case, the eye witi>esses have named all the appellants
and the approver has even named those acquitted by the High Court.
But it would be safe only to convict those who are stated
to
bav1>
taken an active part and about whose identity there can be no reasonable
doubt.
:[,586 A-CJ
Bhubaneshwar Manda! v. The State of Bihar, A.I.R. 1973 S.C.
399, Sheo Swarup

## Text

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A
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571
BAJWA & ORS.
v.
STATE OF U.P.
March 6, f973
(A. ALAGIRISWAMI. J. D. DUA AND C. A: VAIDIALINGAM, JJ.J
Practice-Cnininc.-1
Law-Appe<1I
agaln~t
aequi.rtal-App11eciat1}Jn
of evidence by High Court-Approacli of Supre111e Court
in
JJurtherc.ppeal-Faclion cascs-Precau1io11s
Qgailist
i111plication
of
innocent
persons.
Jn dealing with appeals against acquittals the High Court has
to
bear in mind the presumption of innocence in favour of the a.ccused
person and cannot Jose sight the fact that the said
presumptiq-,
is
stfengthened by the order of acquittal passed in his favour
by
the
trial court, and so. lhe fact that the accused person is entitled to
the
benefit of a reasonable doubt must alWilys be present in the mind of
the High Court whe;r1 it deals with the merits of the case.
But, how.,
ever circumspect and cautiol,ls the approach of the High Court may be
in dealing with such appeals, it undoubtedly "is entitled to reach its
own conclusions upon the evidence adduced by the
prosecution
in
respect of the guilt or innocence of the accused. The observations in
the various decish11ns prescribing a cautious approach, on the part o.f
the High Court, in dealing with appeals against aequittals, do not cut
down, limit or qualify its statutory power under
s. 423(a)
Cr.P.C.,
which is co-cxtens'ive with that under cl. (b). It is not necessary
that
the High Court must hold that the trial Court"s finding
was perverse
before reversing it.
[581 A-D, F-H]
This Court, on appeal from a judgment of convictio,n after setting
aside an order of acquittal, would examine the ev'idence only for seeing
that the High Court has' approached the question properly ~nd applied
the principle~ correctly.
Once it is found that the High
Cou'rt
has
upplied correct principles in dealing with appeals
against
acquittals
then this Court would not ordinarily go further into the evidence and
weigh it for itself to substitute its owrr opin'ion for that of the High
Court merely as to its sufficiency to suppOrt the conclusions arrived at
by
the · High Court.
It
wilt
do
so only
if
there
is
some
serious,
infirmity
leading
to
grave
injustice.
In
c;ise
the
High
Court's judgment suggests that the correct principles were not kept in
view then it would be open to. this Court to examine the entire evidence
for t,hc purpose of assuring that justice does not fail [581 D-FJ
In the p'resent case, in the judgment of the High Court there is
trtO reference to the decisions of the Privy Council or of this
Court
laying down the principles which the appellate court is
expected
to
keep 'in view when dea1ing with appeals against
acquittal,
but
the
judgment clearly shows that it \Vent into all the
aspects
on
which
fie prosecution evidence could be criticised and
concluded
that
the
evidence was fully trustworthy Olld that the medical evidence, though
it might be shaky, did not throw onv doubt on the trustworthiness of
the pfosecution witnesses as to the time, place, and circumstances in
which . the deceased was killed.
The appreciation of the evidence
by
the :m~h Court is unexceptionable and there is no
questio.n
of
any
poss1b1hty of a reasonable ooubt on the co'nclusions 11bout the time
ahd place of occurrence and the n1anner in which the deceased met his
death.
[584 A-HJ
572
SUPREME COURT REPORTS
(1973) 3 S,C.R.
But in cases like the pres~nt-, where there are party factions, there
is a tendency to include the Innocent with the guilty and it is extremely
difficult for the Court to guord against such a danger. The only real
safeguard against the risk of condemning the itonocent with the guilty
lies in insisting on acceptable evidence which in some measure implicates such acused and satisfies the conscience of the court. [585 0-HJ
· In the instant case, the eye witi>esses have named all the appellants
and the approver has even named those acquitted by the High Court.
But it would be safe only to convict those who are stated
to
bav1>
taken an active part and about whose identity there can be no reasonable
doubt.
:[,586 A-CJ
Bhubaneshwar Manda! v. The State of Bihar, A.I.R. 1973 S.C.
399, Sheo Swarup v. King Emperor, I.L.R. 56
All.
645 (P.C.);
Sanwatl Singh v. State of Rajasthan\ [1961] 3 S.C.R. 120, State of
U. P. v. Saman Dass, A.LR. 1972 S.C. 677,
Khedu
Mahton
v.
State of Bihar, A.I.R. 1971 S.C. 66, Kanu Ambu Vish v.
Stais of
Maharashtra, A.LR. 1971 S.C. 2256, Harbans Singh. v.
State
of
Punjab, [1962] Supp 1 S. C.R. 104, Shivji Guru Mohite v. State of
Maharashtra, A.I.R. 1973. S.C. 55, M. G. Agarwal v. State of Maharashtra, V1963] 2 S.C.R. 405,
Nur Mohammad v.
Emperor,
A.J.R.
1945 P .C. 151, Gopinath Gangaram v. State of
Maharashtra,
Crl.
A. 99 of 1969 decided on October 15, 1969, Kashmira Singh v.
State
of M. P. 1952 S.C.R. 526 and Bhaban Sahu v. The King, 76 I.R.
147, referred to.
CRIMINAL APPELLATE JURIDICTION : Criminal Appeal No.
189 of 1969.
Appeal by special leave from the judgment and order dated
October 31, 1968 of the Allahabad High Court in Government
Criminal Appeal No. 771 of 1965.
R. K. Garg and S. C. Agarwa/a, for the appellant.
D. P. Uniyal a.nd 0. P. Rana, for the respondent.
The Judgment of the Court WM delivered by
DuA, J.-The ten appellants have appealed to this Court by
special leave under Art. 136 of the Constitution from the judgment and order of the High Court of Judicature at Allahabad
dated October 31, 1968 allowing the appeal ol the State of U. P.
from the judgment and order of the Temporary Sessions Judge,
Hamirpur dated January 15, 1965 acquitting all the 15 accused
per!rons, including the appellimts, of the charges under ss. 148
302/149 and 201, l.P.C. During the pendency of the State appeal
in the High Court against the order Of acquittal, Chandrapal Singh,
acused no. 1 (in the trial court), died on September 30, 1967
with the result that appeal against him abated on his death. The
appellants were, however, held liable to be convicted under ss.
302/149, 201/149 and 148, I.P.C.
Against
he
remaining
accused persons the order of acquittal was affirmed.
Under ss.
302/149, l.P.C. each of the appellants WM sentenced to imprisonA
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BAJWA v. STATE (Dua, J.)
573
ment for life and under ss. 301/149, I.P.C. sentence of two years'
rigorous imprisonment was imposed on each one of them. Tl;iey
were also sentenced to one year"s rigorous imprisonment each
under s. 148. l.P.C. All the sentences were directed to be concurrent.
According to the prosecution Pannalal and Gulzarilal, appellants nos. 7 and 8 are brothers: so are Achebe Lal, Ramdhar and
Bansi, appellants 4 to 6.
Gurwa, appellant no. 3 is
the first
cousin of Bansi : Ramdayal, appellant no. 10 is also
Bansi's
cousin. Ba.iwa, appellant no. 1 too is related to Bansi: he is the
son of Ramsahai who turned an approver and was examined as a
prosecution witness.
It is alleged that all the appellants, along
with the either persons arrayed as accused in the trial court, belong
to one party and there was some litigation under s. 107, Cr.P.C.
between most of the accused persons on the one side and the deceased Ramratan and men of his party on the other. During the
course of proceedings under s. 107, Cr. P .C. it appears that under
pressure of Ramdayal, Achche Lal and Ramdhar on unwilling
Ramratan, a compromise was signed in those proceedings but as
there was no genuine change of heart amongst the rival parties the
Station Officer of '!he Police Station did not agree to drop the proceedings. There was also ·another proceeding under s. 107, Cr. P.C.
in which Gulzarilal, Pannalal, Gurwa and Ramgopal had been
blound down. It is also alleged that on the murder of one Munni
Banin, Chandrapal Singh, Gulzarilal, Pannalal, Banshi, Ramgopal
and Gurwa were prosecuted and Ramratan, deceased, conducted
the case for the prosecution. There was thus no love lost between
the two factions. On August 16, 1963 at about 5.30 p.m. Shivratan (P.W. 1) JagroopSingh (P.W. 2) MaheshwarDin (P.W. 3),
Sugar Singh and deceased Ramratan were proceeding to the house
al one Sheoraj Singh for a~tending a recital of ALHA. On their
way while proceeding from the direction of Korionwali Gali, they
entered Banshiwali Lane. There they noticed accused Bansi and
Gu!zarilal standing in front of the door of Bansi's Gurwahi
Bakhari.
As soon as Shivratan (P.W. 1) and his companions
turned into the Banshiwali Khor for going to Sheoraj Singh's house,
Gulzarilal asked '!hem to stop. Bansi is also said to have shouted
"kill them".
Thereupon Chandrapal Singh fired his gun hitting
Ramratan, deceased, as a result of which the latter died at the
spot. The ten appellants were said to be present in the company
of Chandrapal Singh at the time of the occurrence.
Gulzarilal,
Pannalal, Bansi and Achebe Lal were stated to be armed with
pharsa,
Ramdhar.
Ramdayal,
Gurwa and Ram Gopal had
.kulharis while Bajwa and Tej Singh were carrying gandasas.
Chandrapal Singh was armed with a gun with which he shot down
the deceased Ramratan.
Sheoratan (P.W. 1) and his par;men
574
SUPREME OOURT :REPORTS
{1973] 3 S,C.R.
tried to advance towards the dead body o( Ramratan but the
appellants and Chandrapal Singh rushed at them threatening to kill
them as well.
Sheoratan Singh and his partymen thereupon ran
away towards their village raising an alarm. On their arrival in
their own Mohalla Sheoratan Singh and his companions collected
about 30 or 40 persons and returned to the place where Ramratan
had been shot, dead.
There they found that the dead body of
Ramratan had been removed.
They divided themselves into two
groups.
One party going towards the house of Sheoratan Singh
in search of Ramratan's dead body and the other going towards
Bansi's house for the same purp<ise.
Outside the village both
the parties met again and continued
their Search.
Climbing
over the "Jogi Nala" they
noticed •the
app~llants along with
Chandrapal Singh going away with the dead body towards "Bari
Bhawani".
They also noticed that the dead body had been cut
into pieces and its dismembered par'!s were carried in three baskets, one of the partymen carrying the head of the deceased in his
hand. The party of Shivratan tried to chase the accused and on
corning closer they recognised the persons running away with the
different parts of the dead body.
Ramgopal was
carrying the
head of the deceased in his hand whereas Bajwa, Tej Singh and
Ramdayal were carrying three baskets.
On seeing the party of
Shivratan, the appellants are stated to have thrown away. various
parts oi the dead body and escaped.
Sheoratan Singh and his
companions recovered the trunk but could not find the head and
the thighs of the deceased. Picking up the parts of the dead body
which they were able to recover, they returned to their village. A
report of the occurrence was written put by Sheoratan Singh (P.W.
1) at his house and lodged by him at the police station about 8
miles away at about 12.30 midnight between August 16 and 17,
1963. He had gone there with the village chowkidar and five or ten
other persons including Jagdeo Singh who was armed wtth a gun.
The Station Officer not being present in the police station at that
time, the report was handed over to the moharar Girinder Singh,
constable (P.W.7). In that repOrt the names of the ten appellants
and Chandrapal Singh were specifically mentioned as the perpetrators of the alleged crime. On his return home P.W. 1 learnt that
the head and thighs of the deceased had also since been recovered
and kept with the other parts of the dead body. The papers .relating to the repol't lodged with the police were sent to the Station
Officer in vill!lge Guyari where he happened to be at that time.
The said officer reached village Geondi at about 11.00 a.m. on
August 17 and found the truncated body of the deceased under a
peepal tree and, after preparing the inquest report, he despatched
the recovered parts o( the body for postmortem examination. At
the place where Ramratan was alleged to have been shot down, ·
blood stains were found by the investigating officer on the ground.
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BAJWA v. STATE (Dua, 1.)
575
Blood ·!ltained and un9lained earth was collected f;om that spot.
He then went to "Gurwahi Bakhari" of Ramsahai where the dead
body was suspected to have been dismembered.
Blood was discovered inside the "Bakhari". Blood stains were also found on the·
chaukat and door leaves of the said "Bakhari" some bricks lying
there were also found to have blood stains on them. There were
blood marks as well on the cattle fodder lying in that Bukhari.
The investigating officer (P.W.8) took the blood-stained pieces. of
various articles from 'the said Bakhari and duly sealed them. The
11ecessary recovery memos were prepared. The inve!rtigating officer also found four wads behind the said Bakhari in the vicinity
of the place where Ramratan was stated to have been shot dead.
Those wads were sealed and the necessary
recovery memos
prepared .. Search was made by the investigating officer (P.W.8)
for the alleged miscreants but they were not traceable with the
results that proceedings under ss. 87 and 88, Cr. P.C. were taken
for the wanted accused. Accused nos. 12 to 15 in the trial court
were arrested on August 25, 1963, the remaining accused having
surrendered in court on various dates.
The postmortem examination was performed on the dead body of Ramratan bi\' Dr. J. S.
Panwar, Medical Officer-in-charge of Mahoba on August 18. 1963
at about 9.30 a.m.
Only seven differellt parts of the dead body
were available for autopsy. Maggots were found on the injured
parts of the dead body and fragments of skin with peeling off in
several areas in big patches were also found.
The
following
ante-mortem injuries on the trunk of the dead body were observed
by Dr. Panwar :
"l. Bruise 6''X5" on !he front side of the chest with
thick layer of coagulated blood under it.
2. Two gun shot wounds measuring 3/10"X3/10"
on the chest left side 1 /2" away from the fourth
and fifth ribs. The two wounds are l / 5" apart
and one was upon the other. Coagulated blood
was present under. the skin of those injuries.
3. 8 gun shot wounds on the back left side, each
measuring 4/10"X4/10" scattered in an area oI
6t"X 5"."
~II th~ .acc~ed. denied their complicity, Chandrapal Singh pleadmg al1b1, cla1mmg that on the morning of August 16, 1963 at
about 5 a.m. he had left for village Kharela, where he remained
for three or four hours, and in an auction there purchased a buffalo
from the cattle pound. From there he went to Bambhari and a;
he happened to be a history sheeter he informed the village chowkidar of his arrival there at about 4 p.m.
576
SUPREME COURT REPORTS
[1973] 3 S.C.R.
The trial court again summoned Dr. Panwar and examined
him as C. W. 1 on October 22, 1964. He had already been
examined in the c<immitting court on November 4, 1963. He
had, however, not been cross-examined then, though full opportunity had been afforded, because, according to the defence counsel,
he could effectively do so only after the examination of the other
prosecution witnesses.
During the course of his examination in
the court of the committing magistrate Dr. Panwar had,
after
giving' full details of the in.juries on the person of the deceased
as noticed by him
and after proving the postmortem report,
stated :-
"I cannot say it correctly which of the gunshot
wounds was a wound of exit which was the wound of
entrance. For this reason I have put these facts inside
the biracket.
It is my opinion that injury no. 2 is the
wound of entry and injury no. 3 is the wound of exit.
It might also be that injury no. 2 is the wound of exit
and injury no. 3 is ~he wound of entrance".
In the trial court his examination-in-chief and cross-examination
1by the State counsel reads :
"As regards injury nos. 2 and 3 both I had stated in
the court of commit'ling magistrate that both of them
could be the wounds of exit as well as wounds of entry.
As regards wound no. 2 it is more probable to be the
wound of entry than exit wound. At the time of post·
mortem there was no such data with regard to all these
gun wounds except their dimensions from which it could
be ascertained as to which were entry wounds and which
were exit wounds. These gunshot wounds were inflicted
from a distance of more than four feet.
Cross-examined by State counsel :
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As regards wound no. 2 I am telling it to be more
probablle to be entry wound because rts dimensions are
large and there is no other reason except this. By considering this fact, that there are 8 wounds on the back and
two wounds on the chest and that they have been caused
G
from a distance of more than 4 feet, it can also be said
that in comparison to the wounds on the chest the
wounds on the back have more probability to be entry
wounds. No track formed by peilets have been found.
It is possible that eight pellets might have entered from
the back and two of them might have gone out of the
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chest and six of them might have fallen on account of
the body being out into pieces or they might not have
been detected at the time of postmortem."
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BAJWA v. STATE (Dua, J.)
577
He was cross-examined on behalf of the defence at great length ..
It was elicited from him that it was not his practice to write in the·
postmortem report that the tracks of pellets are not traceable.
He could not say whether or not the racks were visible in the
present case as he could only reinember about the track for about
2 or 4 days after the postmortem, indicating thereby that after such
a long time he could not say anything definite from memory. He
had tried to find the pellets but none were available.
From this
he could deduce that no pellets were present in the body. He did.
not find any hole in the trunk of the dead body on the basis of
which it could be said that the pellets had fallen out. He added
that if it could be held that no pellets had fallen from the dead
body and none were present at the time of postmortem then it
could be said with certainty that wounds on the chest were the
entry wounds and the wounds at the back the exit wounds.
We
have stated the broad trend of the doctor's evidence.
The trial court dealt with the medical evidence and came to
the conclusion that there was nothing in the postmortem report
to suggest that Dr. Panwar was in any way in doubt at the time
of the postmortem. The court refused to accept the doctor's explanation that in the postmortem repovt he had written the wounds
of exit and wounds of entry within brackets because he was doubtful. This conclusion was based on the ground that this doubt was
not expressly stated in the postmorten report. On this reasoning
the trial court felt that the medical evidence instead of supporting
the prosecution case, establlished that the prosecution version of
Ramratan Singh having been shot at from behind was unbelievable.
It may here be mentioned that in the trial court an application had
been moved by the prosecution for a demonstration to be held by
firing cartridges to show dispersal of the pellets. This was allowed
and a demonstration held when a shot was fired from a distance
of 42tft. because, according to the prosecutioμ story, Ramra\an
Singh, deceased, had ·been shot at from that distance.
The first
shot in the demonstration created ten holes in an area of 12" ><12";
9 of them being identical in size while one being a very big hole
having an area in size as big as that of anyone of the other nine
holes.
Another cartridge was fired which created 8 holes in an
area of 9"X9". According to the defence the cartri!lges supplied
by the prosecution for this demonstration were very likely not
authentic.
The court then commented upon the result of this
demonstration and also referred to some observations in Modi's
Textbook on Medical Jurisprudence and Texicology and came
to the conclusion that the dispersal of the pellets suggests that the
deceased had been shot at from close range from the front and
not from behind from a distance of 42! ft.
The court then proceeded to discuss the prosecution evidence and expressed the view
that as the original postmortem report suggested the wounds in·.
518
SUPREME COURT REPORTS
[1973] 3 S.C.R.
1he cpeS'l being the entry wounds, the prosecution tried to make
~t a case of the deceased having been fired at from the front.
Later on, when it transpired that perhaps the wounds at the bac,k
were more likely 'to be considered as the entry wounds, the place
.of occurrence was also changed from the entrance of Korion Wali
Gali to Banshi Wali lane and instead of deposing that Ramratan
Singh had been shot at from the front the prosecution witnesses
started deposing in court that he was shot at from llehind. This
inference was drawn by comparing ,<tatements of P.Ws 2 and 3
:under s. 161, Cr. P.C. (Bxs. Kha 7 and Kha 9) and the deposition
.of the witnesses in court.
The trial court also expressed doubts
about the evidence of the investigating officer -that he had tound
some drops of blood at tbe site when he inspected it the day following the alleged occurrence and indeed considered this statement
to be totally incorrect. In the opinion of the trial court it was
just a matter of chance that the party of the accused persons had
inet Ramratan Singh and there could thus be no question of. their
having formed an unlawful assembly and having walled in front of
.Baasi's house for killing Ramratan Singh, deceased. The motive
of the accused for the murder was not accepted by the trial oourt
and it was observed that it was the cou~t which did not accept
the compromise in the proceedings under s. 107, Cr. P.C. ~
the party of the accused and that of the deceased.
Lastly the
court felt that the deceased Ramratan Singh having himself been
a man of. bad character the possibility of someone else killing him
could not ~ ruled out. Chandrapal Singb's plea of alibi was also
accepted as according to the trial court the entry about bis visit
to village Barwah could not be held to be untrustworthy. Tiie
trial court in a brief discussion of the evidence of P.Ws l, 2 and
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3, the eye witnesses, considered their statements to be unacceptable,
being the statements of interested witnesses.
The testimony of
Ramsahai (P.W. 4) the approver was also considered to be unworthy of credence and it was observed that be had not implicated
himself in the offence. The story of the blood having been wa~
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by the ladies from the house was also Iiot believed by the trial
court.
In these circumstances the trial court did not place any
reliance on the testimony of., what it described, the "so-called
approver". On 'this view all the accused persons were acquitted.
We have dealt with the trial court's view at some length beGause
on behalf o.f the appellant the principal argument urged was that
tile trial court's judgment was quite reasonable and that the High
Court was in serious error in law in reversing it on its own appn:-
ciation of the evidence and material on the record.
G
On apJ?Cal to the High Court by the State, a division Bench
H
Closely went into the evidence. On scru1:iny of the testimoaf of
Dr. PimWar that court came t<J the eonchlsli>n that bis evidlinc.e
left the question as to wheillier the wounds on the chest oc the
'E
e
BAJWA v. STATE (Dua, J.)
579
wounds on the back were the wounds of entry in a state of uncertainty. Jn i'ts opinion the doctor had oscilla<ted in his de~i
tion· so many times that it was impossible to draw any definite
conclusion contrary to 1he evidence of the eye witnesses on the
basis of his testimony.
The High Court felt on the appreciation
of the medical evidence that there were several explanations of
the pelle1s being in the body and not traced by the doctor during
the postmorlem.
The pellets after they enter the human body
often take a very erratic course on account of their being deflected
by coming into contact with ;the bones and indeed according to
the High Court the doctor himself had admitted that it was not
unlikely •that eight pellets entered the body through the I.Jack and
two of them came out of the chest. the remaining six having either
fallen out of the body, because of its having been cut up or having
not been traced by him (the doctor) at the time of poS'!mortem
examination. The High Court also took notice of the fact that
the. maggots were found by the doctor, 10 be crawling on fragments of the body and skin was peeling off in several places in
!:jig patches, with the result that there was a
possibility of the
magguts having themselves played a part in bringing about the
change in the dimensions of the injuries. It further felt that there
was no hard and fa!ll rule that the wounds of emry must necessarily
be smaller in size than the wounds of exit. After considerinl!: all
the relevant aspects the court felt that the dimensions of •he injuries on the chest as compared to the wounds on •the back were
insufficient to justify the inference drawn by the trial court that
the shots had been fired from the front thereby discrediting the
testimony of the eye-witnesses with any degree of certainty. The
gun having not been recovered the court was not able to come
to any conclusion whether the cartridge fired was a factory manufactured one or refilled.
On a full survey of the entire medical
evidence and the other material on the record the High Court
did not find it possible to reject the evidence of the eye-witnesses
on account of its being "allegedly inconsistent with the shaky
medical evidence". The High Court went into the oral evidence
wilh great car~ and after folly considering it held that evidence
to be acceptable. It also oblserved that the trial court had unnecessary importance to the question of motive on the pan of
someone else for the mu.rder.
The evidence made· it clear that
there were a numbr of proceedings between the deceased Ramratan
Singh and members of his family on •the one side and Chandrapal
Singh and members of his party on the other. The mere fact that
there was a possibility of sonie Other persons also having a motive
in murdering Ramratan Singh was not a cogent reason by itself
to doubt the testimony of the eye-witnesses which the High Court
found to have been corroborated by other unimpeachable evidence
on the record. Chandrapal Singh's plea of alibi which had been
I
580
SUPREME COURT REPORTS
(1973] 3 S.C.R.
A
upheld by the trial court was also carefully gone into by the High
Court and rejected as unsupported by cogent evidence.
In any
event on the assumption that Chandrapal Singh had actually
taken part in an auction held on August 16, 1963 at Kharela as
pleaded, his presence there till 3 p.m. was held unacceptable. The
State appeal was accordingly allowed in part but Chandrapal
B
Singh having died in the meanwhile on September 30, 1967 the
appeal against him was said to have abated. The appellants were
convicted and sentenced, as already noticed, but the finding of
acquittal against the other accused persons was not intedered
with.
In this Court Shri R. K. Garg, learned counsel for the appellants
addressed elaborate arguments in criticising the judgment of the
High Court.
The principal challenge was concentrated on the
contention that the medical evidence in this case contradicted
the version of the occurrence as given by the witnesses professing
to have seen it. It was strenuously argued that even if two views
were possible on this point the High Court was in serious error in
reversing the judgment of acquittal recorded· lzy the trial court
into one of conviction, ignoring the law as unifoffi!iy enunciated
in this Court in a number of decisions, the latest decision in which
legal position has again been reiterated being Bhubneshwar Manda!
vs. The State of Bihar( 1). Emphasis was laid on paras 3 and 4
of that Judgment where reference has been made to the decisions
in Shea Swarup vs. King Emperor('), Sanwat Singh vs. State of
Rajasthan(') and State of U.P. vs. Samman Dass(') and relevant
passages from those judgments reproduced. Shri Garg submitted
that in the case before us also the High Court had failed to realise
the limitation within which it had to function and the caution it
had to observe in considering the appeal against the appellants'
acquittal.
The counsel also crted Khedu Mahton vs.
State of
Bihar(") and Kanu Ambu Vish vs. State of Maharashtra{°) in
which the guidelines for the High Courts in dealing with appeali
against acquittai-. are laid down.
Shri Garg in this connectiolf
took us through the judgmell.ts of the trial court and the High Court
for the punxise of showing that the trial court's judgment proceeded
on a possible view of the evidence on the record and, therefore,
the High Co~ acted contrary to the observations made by this
Court in the above decisions.
We were also taken through the
relevant evidence on the record by the. appellants' learned counsel
in his attempt to substantiate his contention.
Shri Garg then referred to certain passages from Modi's Medical
Jurisprudence 'and Toxicology for sustaining the trial court's view
that the testimony of the prosecution witnesses did not fit in with
g)
A.LR. 1973 s.c. 399.
[1961] 3 S.C.R. 121>.i
~ A.l.R. 1971 s.c. 66.
(2) l.L.R. S6 All, 64S (P.C.}
(4) A.l.R. 1972 S.C. 677.
(6) A.l.R. 1971 S.C. 22S6;
c
[)
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BAJWA v. STATE (Dua, J.)
581
A
the doctor's evidence.
In this connection also we were taken
through the evidence of the doctor at some length.
• Now first dealing with the scope of appeal by >the State again~! ·
acquittal, as this was the main basis of attack against the judgment
of the High Court, the position in our view is well-settled and there
is hardly any scope for controversy, notwithstanding the use of
8
different languages in various decisions of this Court. The passages from the three authoritative judicial pronouncements of this
Court quoted in Bhubneshwar Manda I (supra) clearly illustrate
the basic line of approach the High Court is expected to adopt
while dealing with the State appeals from the judgments of acquittal.
This view has been consistently and uniformly taken ever
C
since the basic decision of the Privy Council in Shea Swarup
(supra), laying down the broad guidelines of approach to be
adopted by the High Courts.
We would, however, like to emphasise that this Court on appeal from judgments of conviction
after setting aside orders of acquittal would examine evidence only
for seeing that the High Court has approached the question proD
perly and applied the principles correctly. Once it is found that
the High Court has applied correct principles in dealing with an
appeal agains1 acquittal then this Court woufd not ordinarily go
further into the evidence and weigh it for itself t•D substitute its
own opinion for that of the High Court merely as to its sufficiency
to support the. conclusions arrived at by the High 0Jurt. It would
E
do so only if there is some serious infirmity leading to grave injustice [see Harbans Singh vs. State of Punjab(') and Shivji Guru
Mohite vs. State of Maharashtra(')]. In case, however, the High
Court's judgment suggests that the correct principles were not
kept in view then it would be open to this Court to examine the
entire evidence for the purpose of assuring that justice does not
fail.
We consider it necessary to make it clear that the observaF
tions in various decisions pr~sc'ribing a cautious approach on the
part of High Courts in dealing with appeals against acquittal& do
not cut down, limit or qualify its statutory power under s. 423 (a),
Cr. P.C. which is co-extensive with that under cl. (b). Those
observations merely indicate the approach of the High Court leaving it free to reach its own conclusions upon the evidence. It is
G
not necessary that the High Court must hold that the trial court's
finding was perverse before reversing it. As solll!l of those observations have very frequently been considered
(wrongly in our
opinion) to lay down in law a rigid limit on the power of the High
Court while hearing an appeal against acquittal, we consider it
necessary to refer to the decision of this Court in M. G. Agarwal
H
vs. State of Maharashtra(') where Gajendragadkar J. (as be then
was) speaking for a bench of five Judges, after referring to various
(I) [1962] Suppl S.C.R. 104.
(2) A.I.R. 1973 SC. 55
(3) [1963] 2 S.C.R. 405,
5-L761Sup Cl/73
582
SUPREME COURT REPORTS
[1973] 3 S.C.R.
decision:; inclu~ing Shco S1vnr11p
(supr~1) and ,'v'ur 1\IJ0ha;,:n<a.!
v. Emperor(' I. laid down the correcc principle as follows :
"Section 423 (I) prescribes the powers of the appellate Court in disposing of appeals preferred before it and
clauses (a) and (b) deal with appeals again'! acquittal:,
and appeals against convictions respectively.
There is
no doub1 'that the power con.ferred by clause (a) which
deals with an appeal against an order of acguitral is '"
wide as the power conferred by clause (b) which deals
with an appeol against an order of conviction, and so,
it is obvious that the High Court's powers in
dealing
with criminal appeals are equally wide whether 'J1e
appeal in question is one against acquiital or against conviction.
That is one aspect of the question. The other
aspect of the question centres round the appro1ch which
the High Court adopts in dealing with appeals against
orders of acquittal.
Tn dealing with such appeals, the
High Court naturally bears in mind the presumption of
innocence in favour of an accused person and cannot
lose sight of the fact that the said presumption is strengthened by the order ct acquittal passed in his favour by
the trial Court and so, the fact that the accused person
is entitled to the benefit of a reasonable doubt will always
be present in the mind of the High Court when it deals
with the merits of the case.
. ......... But the true
legal position is that however circumspect and cautious
the approach of the High Court may lie in dealing with
appeals against acquittals, it is undoubtedly entitled to
reach its own conclusions upon the evidence adduced by
the prosecll'tion in respect of the guilt or innocence of
the accused. This position has been clarified by the
Privy Council in Shea Swarup vs. The King Emperor
and Nur Mohammad vs. Emperor".
•
The learned Judge then referred to some of the decisions oi this
Court in which various expressions were used for the purpose of
expressing the cautious approach of the High Court and observed
that those expressions were not intended .and should not be rea~
to have intended ~o introduce an additional condition in cl. (a)
qf s. 423 (I) of the Code. All that the said observations are intended to emphasise is th11r the approach of the High Court in
dealing wrth an appeal against acquittal ought to be cautious
because as Lord Russell observed in Shea Swarup (;upra) the
presumption of innocence in favour of the accused "is not certainly weakened by the fact that he has been acquitted at his trial".
After stating the pri1>dple the. learned Judge dealt with the case
before the Court thus :
(!) A.l.R. 1945 P.C. ISi.
A
B
c
D
E
F
G
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A
B
c
D
E
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BAJWA v. STATE (Dua, J.)
"Therefore, the question which we have to ask our -
selves in ithe present appeals i~ whether on the material
produced by the prosecution, the High Court was justified in reaching the conclusion that the prosecution case
against the appellants had been proved beyond a reasonable doubt and 'that the contrary view taken by the trial
court was erroneous. In answering this question, we
would no doubt consider the salient and broad features
of the evidence in order to appreciate the grievance made
by the appellants against the conclusions of the High
Court.
But under Art.
136 we would ordinarily be
reluctant to interfere with the finding of fact recorded by
the High Court particularly where the said findings are
based on appreciation of oral evidence."
583
It is in this blackground that we have to consider the arguments
advanced at the bar on the material on the record.
Now the High Court has in tllis case examined the entire evidence at great length.
In its opinion the trial court was wrong
in disb~lieving the prosecution evidence led to establish the recovery of blood stains from the scene of occurrence and from
Gurwahi Bakhari of Ramsahai. On appreciating the evidence for
rtself the High Court felt that the evidence fully established the
recovery of blood stains from the places as deposed by the prosecution evidence with the result that the murder should have appropriately been considered to have taken place at l\he spot alleged.
The High Court, then dealt with the medical evidence and after
a thorough scrutiny of that evidence did not feel convinced that
the testimony of the eye-witnesses could be discarded on the basis
of the testimony of Dr. Panwar. The medical evidence was considered by the High Court to be shaky and it came to the considered conclusion that the evidence oi. the eye-witnesses could not
be rejected on this ground. The testimony of the eye-witnesses
was also closely scrutinised by the High Court and after considering the relevant aspects canvassed before it this evidence was
considered reliable and trustworthy.
The fact that there might
have been motive on the part of some others also to murder
Ramratan was considered by the High Court llQt to be a sufficient
reason to doubit the testimony of the eye-witnesses who were corroborated by "other unimpeachable evidence", as the High .Court
put it. The defence evidence was also scrutinised and held unimpressive and unacceptable; it was not so persussive as to induce
tl)e High Court to discard the prosecution evidence which had
proved beyond reasonable doubt that, on the date, time and place
alleged by it, Ramratan had been murdered by acc1'8ed no. 1 and
his associates in prosecution of the common object of the unlawful
assembly of which they were members and that subsequent to the
murder they cut up the dead body and removed it from the scene
584
SUPREME COURT REPORTS
[1973] 3 S.C.R.
of the murder with the object of screening themselves from legal
punishment.
No doubt in the judgment of the High Court we do not find
nny reference to the decisions in which the Privy Council and
this Court have laid down the principle which the appellate court
is expected to keep in view when dealing with an appeal against
1he order of acquittal. But the judgment of the High Court clearly
shows that it went into all aspects on which the prosecution evidence could be criticised and concluded that the evidence was
fully trustworthy and that the medical evidence, shaky as it is, did
not throw any doubt on the trustworthiness of the pPosecution
witnesses
as to the
place, time and circumstances in which
Ramratan was killed. This, in our view, should be sufficient to
justify interference by the High Court with the judgment of the
trial court. This Court had in Gopinath Gangaram vs. State of
Maharashtra(!) adopted a similar approach.
However, in the
peculiar circumstances of this case, we have also ourselves considered the evidence to which our attention was drawn and in our
opinion the trial court seems to have attached undue importance
to some of the observations of Dr. Panwar in the witness box,
extracted in cross-examination in the trial court long after the
postmortem, without correctly and fully appreciating the overall
effect of his evidence considered as a whole along with the postmortem report, which had been prepared contemporaneously
with the autopsy.
Without examining any ballistic expert and
without even knowing what kind of fire arm had actually been
used for the murder in question, the trial court had also, 'n our
view, erroneously discredited the testimony of the eye-witnesses
on the basis of ithe medical evidence.