# BARA TI v. STATE OF U. P

- **Citation:** [1974] 3 S.C.R. 570
- **Court:** Supreme Court of India
- **Decided:** 1974-03-12
- **Bench:** H. R. Khanna, V. R. Krishna Iyer
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bara-ti-v-state-of-u-p-6115
- **Pages:** 7

## Headnote

Penal Code-S. J-02
Code of Criminal Procedure-s. 411-Power of appellate Court to review at /ar§e
evidence on which order of acqui11al by trial court founded-No limftation on power
-Evidence of dose relations-If could. be btlitved-Dying declaration-Meet of.
The appellant and his companions were charged with an offence under s. 302
I.P.C: for causing the death of the deceased by pouring acid on him ·when he was
sleeping on his cot on the night of the occurrence. After recording the :first infor4
mation report the police sub-inspector recorded the statement of the deceased and
at the dispensary the doctor recorded the statement of the deceased, in both of
which he stated that the appeJlant poured acid over his body and caused iiijurics to
him. The deceased succumbed to his injuries. Disbelievina the prosecution
evidence the trial court acquitted him.· The High Court on the other hand accepted
the evidence of all the prosecution witnesses and convicted and sentenced the _appe.
llant to life imprisonment but acquitted the remaining two accused.
In appeal to this Court it was contended that the High Court should not have
reversed the judgDient of the trial court and the evidence JClied upon by the High
Court was not satisfactory.
·
Dismissing the appeal.
HELD : that the approach of the trial court was clearly ~onable and the
Hi.Rh Court was fully justified in setting aside the acquittal of the appellant. It is
well settled that in an appeal under s. 417 of the Code of Criminal Procedure the
Court has fUll power to review at large the evidence on which the order of acquittal
was founded and to reach the conclusion that upon the evidence the order of acquittal
should be reversed. No limitation should be placed upon that ·power unless it be
found expressly stated in the Code, but in exercising the power conferred by the Code
before reaching its conclusion upon facts the High Cow:t should give proper weight
and consideration to such matters as (1) the views of the trial judge as to the credi·
bility of the witn~j (2) the presumption of innocence in favour of the accused,
a presumption certainly not weakened by the fact that he has been acquitted at his
trial; (3) the right of the accused to the benefit of any real and reasonable doubt
and (4) the-slowness of an appellate court in disturbing the finding of fact arrived at
by a judge who had the advantage of seeing the witnesses. (576 D·F]
In the instant case there was no doubt that the deceased died as a result of acid
bums. There was no cogent reason to disbelieve the evidence of the prosecution
witnesses. The trial court was wrong in rejectirtg evidence of these witnesses on the
ground that they were related to the deceased. Close relatives of the deceased would
normally be most reluctant to spare the real assailant and falsely mention the name of
another person as the one responsible for causing injuries to the deceased. The
deceased would not spare his real assailant and faJsely mention the name of the
appellant as one who poured acid over his body. There was no reason to discard
the dying declaration made by the api:>ellant to the police sub-inspector. The trial
Court was wrong in rejecting the-11ying declaration to the police (F.l.R.) on the
ground that the deceased had stated to the doctor that he had become unconscious
after the occurrence.· There was nothing in the statement recorded by the doctor
to jndicate that the deceased remained unconscious for a long time and as such was
not. in position to lodge the F.l.R. The fact that the language used in the dying de·
clarat;on made to the doctor was rather chaste would not go to show that the said
!ltatement could not have been made by the deceased. As to the language used in
the dying declaration there is nothin·g abnormal or unusual in the same person using
colloquial language while talking to one person and using refined language while
tilking to another person. [574 E·F ; 575D.~ 576A]
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BARATI v. u. P. STATE (Khan

## Text

570
BARA TI
v.
STATE OF U. P.
March 12, 1974
[H. R. KHANNA AND V. R. KRISHNA IYER, JJ.]
Penal Code-S. J-02
Code of Criminal Procedure-s. 411-Power of appellate Court to review at /ar§e
evidence on which order of acqui11al by trial court founded-No limftation on power
-Evidence of dose relations-If could. be btlitved-Dying declaration-Meet of.
The appellant and his companions were charged with an offence under s. 302
I.P.C: for causing the death of the deceased by pouring acid on him ·when he was
sleeping on his cot on the night of the occurrence. After recording the :first infor4
mation report the police sub-inspector recorded the statement of the deceased and
at the dispensary the doctor recorded the statement of the deceased, in both of
which he stated that the appeJlant poured acid over his body and caused iiijurics to
him. The deceased succumbed to his injuries. Disbelievina the prosecution
evidence the trial court acquitted him.· The High Court on the other hand accepted
the evidence of all the prosecution witnesses and convicted and sentenced the _appe.
llant to life imprisonment but acquitted the remaining two accused.
In appeal to this Court it was contended that the High Court should not have
reversed the judgDient of the trial court and the evidence JClied upon by the High
Court was not satisfactory.
·
Dismissing the appeal.
HELD : that the approach of the trial court was clearly ~onable and the
Hi.Rh Court was fully justified in setting aside the acquittal of the appellant. It is
well settled that in an appeal under s. 417 of the Code of Criminal Procedure the
Court has fUll power to review at large the evidence on which the order of acquittal
was founded and to reach the conclusion that upon the evidence the order of acquittal
should be reversed. No limitation should be placed upon that ·power unless it be
found expressly stated in the Code, but in exercising the power conferred by the Code
before reaching its conclusion upon facts the High Cow:t should give proper weight
and consideration to such matters as (1) the views of the trial judge as to the credi·
bility of the witn~j (2) the presumption of innocence in favour of the accused,
a presumption certainly not weakened by the fact that he has been acquitted at his
trial; (3) the right of the accused to the benefit of any real and reasonable doubt
and (4) the-slowness of an appellate court in disturbing the finding of fact arrived at
by a judge who had the advantage of seeing the witnesses. (576 D·F]
In the instant case there was no doubt that the deceased died as a result of acid
bums. There was no cogent reason to disbelieve the evidence of the prosecution
witnesses. The trial court was wrong in rejectirtg evidence of these witnesses on the
ground that they were related to the deceased. Close relatives of the deceased would
normally be most reluctant to spare the real assailant and falsely mention the name of
another person as the one responsible for causing injuries to the deceased. The
deceased would not spare his real assailant and faJsely mention the name of the
appellant as one who poured acid over his body. There was no reason to discard
the dying declaration made by the api:>ellant to the police sub-inspector. The trial
Court was wrong in rejecting the-11ying declaration to the police (F.l.R.) on the
ground that the deceased had stated to the doctor that he had become unconscious
after the occurrence.· There was nothing in the statement recorded by the doctor
to jndicate that the deceased remained unconscious for a long time and as such was
not. in position to lodge the F.l.R. The fact that the language used in the dying de·
clarat;on made to the doctor was rather chaste would not go to show that the said
!ltatement could not have been made by the deceased. As to the language used in
the dying declaration there is nothin·g abnormal or unusual in the same person using
colloquial language while talking to one person and using refined language while
tilking to another person. [574 E·F ; 575D.~ 576A]
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BARATI v. u. P. STATE (Khanna, J.)
571
CRIMINAL APP2LLAT<
JL'RISDICTION: Criminal Appeal No. 226
of 1970.
Appeal by special leave from the judgment and order dated the
14th April, 1970, of the Allahabad High Couit (Lucknow Bench)
at Lucknow in Criminal appeal no. 260 of 1968.
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A. N. Mu/la and 0. N. Mohindroo, for the appellant.
0. P. Rana, for the respondent.
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The Judgment of the Court. was delivered by
KHANNA, J. Barati (26) was tried in the.court of Sessions Judge
Sitapur for an offeni;e under section . 302 Indian . Penal Code for
causing the death ofLekhai (45). Prabhu (24) and Ram Lal (24)
were also tried along with Barati for offence under section 302 read
with section 109 Indian Penal Code for having abette<! the commission
of the offence of murder. Learned Sessions Judge acquitted all the
three accused. On appeal filed by the State the Allahabad High
Court convicted Barati under section 302 Indian Penal Code and sentenced him to undergo imprisonment for life. The appeal against
Prabhu and Ram Lal was dismissed. Barati then came up in appeal
to this Court by special leave.
·
The prosecution case is that the relations between Lekhai deceased
and his younger brother Pancham (PW 3) on the one side and Barati
accused on the other were strained. All three of them belong to village
Nasirapur in district Sitapur. Dispute had been going on between
them regarding the construction of a wall. About a couple of months
before the present occurrence, Barati effected an opening in the western
wall of his house which gave rise to an apprehension that he intended
to encroach upon the land belonging to Lekhai and Pancham.
Pancham made complaint dated May 27, 1967 to. the Judicial Panchayat in that connection. The said complaint was still pending when the
present occurrence took place. About three days prior to the present
occurrence Barati and Prabhu accused after arming themselves with
lathis went to the door of Lekhai and threatened to assault him.
Mainku PW intervened and persuaded Barati and Prabhu to go away.
On the evening of July 30, 1967, it is stated, Lekhai deceased after
taking his meals was lying on a cot in an open space near his baithak.
Lekhai's son Nagai (PW I) and brother Pancham (PW 3) slept nearby
on another cot. A lighted lantern was hanging nearby. At about
IO· 30 p.m. the three accused came there. On hearing some sound,
Lekhai opened his eyes. Lekhai saw the three accused standing near
the cot. Ram Lal accused is the brother-in-law of Barati accused.
At the instigation of Ram Lal ang Prabhu, it is stated, Barati accused,
who was holding a bottle, poured acRI over Lekhai. Lekhai cried
aloud and shouted that he was being killed. On hearing the cries
of Lekhai, his son Nagai and brother Pancham got up from their cot
and saw the three accused standing there. Barati accused was holding
a bottle in his hand. Nagai and Pancham too raised alarm whereupon
/
572
SUPREME COURT REPORTS
[ 1974 J 3 S.C.ll.
Bhallu (PW 2) and Jeorakhan (PW 4), whose houses are nearby, also
arrived there with lia:hted torches and lathis in their hands. On seeing
them, the three accused' ran into the house of Barati and closed the
door from inside. Nagai and others chased the accused and knocked
at the door of the house but the accused did not open the door. Nagai,
Pancham, Bhallu and Jeorakhan were told by Lekhai that Barati
accused had poured acid over him. Badri Pradhan
(PW 6) also
came there and on his enquiry he too was told by Lekhai that Barati
accused had poured acid over him. Nagai, Pancham, Bhallu, Jeorakhan and· Badri Pradhan PWs saw acid present all over the body of
Lekhai deceased. His clothes too were stained with acid. At the
suggestion of Badri, Lekhai was then taken in a bull(\ck cart by Nagai
and Pancham PWs to police station Sandhana at a distance of two
miles from the place of occurrence. Report Ka I was lodged at the
police station at 2 · 30 a.m. by Lekhai. In that report Lekhai stated
that Barati accused had poured acid over his body. The names of
Nagai, Pancham, Bha!lu and Jeorakhan were also mentioned in the
first information report and it was stated that they had seen the accused
present near his cot when l.ekhai had raised alarm. The motive for
the assault, as given earlier, was also given.
After recording the first informa\ion report, Sub Inspector Asrarul
Haq (PW 18) recorded statement Ka 22 of Lekhai. · In that statement
Lekhai reiterated what he had stated in the first information
report. The Sub Inspector thereafter recorded the statements of Nagai
and Bhallu PWs. Lekhai was then sent to Misrikh dispensary at a
distance of about 12 miles from the place of occurrence. The party
arrived at the dispensary at about 3 p.m. on July 31, 1967. Soon there·
after Dr. Bisht (PW 5) recorded statement Ka II at 3 p.m. ofLekhai
deceased. Lekhai was at that time in a fit condition to make statement.
In that statement also Lekhai stated that Barati accused had poured
acid over his body and as such had caused him injuries. The injuries
of Lekhai were examined by Dr. Bisht at 3·15 p.m.
As the condition of Lekhai was serious, Dr. Bisht referred the case
of Lekhai to District Hospital Sitapur. Lekhai was then taken to
the District Hospital Sitapur. The party arrived in the hospital at
about 4 ·45 p.m. the same day but about an hour thereafter at 5 ·45
p.m. Lekhai succumbed to the injuries. Post mortem examination
on the body of Lekhai was performed by Dr. N. Verma on the following day, i.e. August I, 1967, at 4 p.m.
Barati accused absconded after the occurrence. Procceaings
under sections, 87 and 88 of the Code of Criminal Procedure were initiated against him. Barati surrendered in court on August 17, 1967.
He was thereafter put under arrest.
At the trial the plea of Barati accused, with whom we are concerned
was denial simpliciter. No evidence wa; produced in defence.
The trial court did not place reliance upon the evidence of Nagai,
Pancham, Bhallu and Jeorakhan PWs. The reason which weighed
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. BARATI v. u. P. STATE (Khanna, !.) .
573
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with the trial court was that the witnesses were related to the deceased.
The evidence with regard t~ the dying declarations of the deceased
was not accepted· by the tnal court. The deceased, in the opinion
of the trial court, became unconscious and as such was not in a position to lodge first information report Ka 1 or to make statement Ka
22. The trial court also rejected dying declaration Ka 11 recordeCJ by
Dr. Bisht as it found the language of the same to be chaste and the
same, in the opinion of the trial court, was not expected of a rustic
living in a village. In the re~ult the accused were acquitted.
On appeal the learned Judges of the High Court accepted the
evidence of Nagai, Pancham, Bhallu and Jeorakhan PWs as well as
the evidence about the dying declarations made by the deceased.
The High Court also took note of the fact that Barati accused had
a motive to· assault the deceased and that when witnesses knocked at
his door, he instead of professing his innocence, did not open the
door. Reference was also made to the fact ihat Barati accused had
absconded after the occurrence. In the result the appeal against
Barati accused was accepted, and he was convicted and sentenced as
above. So far a~ Ram Lal and Prabhu accused were concerned, the
High Court gave them the benefit of doubt and as such acquitted them.
In appeal before us Mr. Mulla on behalf of the appellant has urged
that the High Court should not have reversed the judgment of acquittal
of the trial court in respect of the appellant. According to the learned
counsel, the evidence relied upon by the High Court is not satisfactory
and as such the conviction of the appellant cannot be based upon it.
In reply Mr. Rana has canvassed for the correctness of the view of the
High Court.
.. It cannot be disputed that acid was poured on Lekhaideceased on
the night of July 30, 1967 as a result of which he died. Dr. Bisht,
who examined Lekhai deceased on July 31; 1967 at 3·15 p.m., found
the following injuries on his person :
"Burnt area of black colour on the left side of the face, on
both sides of the neck, on thefront part of the whole chest, on
. ~···the right arm, right fore-arm, and back part of right palm on
the front and back part of both shoulders."
Dr. Bisht also found black marks caused by running down of
fluid on the front and outer part of abdomen and on the vertebral
column. Burnt areas of black colourwere found by the doctor on
the front and inner part of right thigh, inner and upper part of right
leg and inner part of the left thigh i.n the middle. The injuries, i!' t~e
opinion of the doctor, were greVJous and were caused by acid m
liquid form. The injuries were about 12 to 24 hours old.
Lekhai died at 5 ·45 p.m. on July 31; 1967. Dr N. Verma who performed the post mortem examination on the body of Lekhai on August
I, 1967 at 4 p.m. found the following injuries on the body :
574
SUPREME COUR1' REPORTS
[ 1974 J 3 S.C.R.
"I. Cor;osive burns area. There were marks of acid, on the
··left side of the face, in front and.b~th sides of the neck, in front·
of the chest and in front, up and back side of the shoulders ; ·
upper side and in front of' the right arm and in· front and in
several ·places of the other arm. In fron.t apd oute.r .side , · ..
ofright thigh and in front inside of left shoulder, in front and ..
down put of the right leg and both sides of the ·back. · : ..
The marks on account of p~uring of acid exisied on the leftside
of the face, and also existed on both sides of the chest; abdomen
and shoulders, the inner part of the skin and flesh of front of
. the chest, neck, sid.e and several places became discoloured by
the action of acid.
Injuries. were on account of corrosion
burns which were upto III, IV, V degree."
On internal inspection the brain ani thin skin cover were found to be
congested. The same was the condition of the lcngs, ·1arynx,. trachea
and bonei . .The heart was full of blooj. while the sto:nach was empty.
Death, in the opinion of ·the dootor, was due to shook as a re>ult of
the pouring of acid: The injuries were suffi:ient to cause death in the
ordinary course·of nature.
,.
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The ·case of the prosecution is that it wa• Barati accused who
poured acid over Lekhai deceased as a result of which Lekhai.died.
Jn support of this allegation, the prosecution has relied, in the first
instance; upon the four dying declarations of Lekhai. deceased. The
first dying declaration of the deceased was the.one made by him to
Nagai, Pancham, Bhallu. and Jeorakhan immediately after the occurrence. It is in the evidence of these witnesses thaf they Were told
.immediately after the occurrerice that it was Barati accused who had
poured acid over him. There appears to be no cogent reason to disbelieve the above evidence of the witnesses. The trial c()urt, in our
· opinion, was wholly in error in rejecting the evidence of these witnesses
on the ground that they were. related to .the deceased. Close relatives
. of the. deceased would normally be m~;t reluctant to spare the real
·assailant arid falsely mention the naine of another person as the one
responsible for causing injuries to .the deceased ... Lekhai deceased also
told Badri Pradhan (PW 6) who arrived at the.place of occurrence on
hearing alarm that Barati ·accused had poured acid over him .. No
cogent ground.has been shown as to why the above evidence of Badri
Pradhan be not. accepted.:. All· that was suggested on behalf ·or the
accused was that Badri was inimical to Prabhu accused .. If that was
so; no reason has been shown as to why Badri should attribute the
major part in the assault on the deceased to ·Barati accused and not to
Prabhu.
It is ·alsci plain .that Lekhai deceased musi· have' seen as. to ·,who
was· the person who.poured acid over his body. The moment the acid
first came in contact with his body, the immediate. reaction of Lekhai
as ·or any.other person, would be to · sie as to who ·was responsibld
for all that. Even if the assailant took only a few seconds to· pour
acid over the body of Lekhai, the latter would not have failed to fix
·the identity of· the assailant i:ltiring that short time. It is significant
·that Bara ti was ·no sfrariger to Lekhai. They were neighbours and
were well known to each other.· It is, in our opinion, most difficult
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BARATI v. u. P. STATE (Khanna, /.)
575
to believe that Lekhai would spare his real ass?.ilant and falsely mention
the name of Barati as one who had poured acid over his body.
Apart from the oral dying declarations made by the deceased to
Nagai, Paticham, Bhallu, Jeorakhan and Badri Pradhan PWs, we have
the evidence ()f Sub Inspector Asrarul J{aq that the deceased lodged
report Ka I at the police station at 2 ·30 a.m. when the deceased was
brought there in a cart. The deceased stated in that report that Barati
accused had poured acid over him and thus caused him injuries. SubInspector, Asrarul Haq thereafter recorded statement Ka 22 of
Lekbai, deceased. In that statement also the deceas~d reiterated that
it was Barati accused who had poured acid over him and thus caused
him injuries. We see no particular reason to diibelieve the evidence
adduced by the prosecution regarding the dying declaration of Lekhai
deceased contained in report Ka I and statement Ka 22.
The trial
court rejected the above evidence because it was of the view that
Lekhai deceased, as mentioned by him in dying declaration Ka 11
made .to Dr. Bish!, had become unconscious af!er the occurrence.
There was, however, nothing in that statement to indicate that Lekhai
remained unconscious for a long time and as such· was not in a position
to lodge the first information report at the police station or make statement /(a 22 to Sub Inspector Asrarul Haq. The view taken by the trial
court in rejecting the above evidence, in our opinion, was clearly erroneous.
Another dying declaration upon which prosecution has placed reliance was Ka 11 recorded by Dr. Bish! in Misrik\l dispensary.
According to' Dr. Bisht, Lekhai was in possession of his senses when
he made statement Ka JI.. Dr. Bisht is a wholly disinterested and respectable witness and there appears no reason as to why his statement
regarding the dying declaratic>n Ka JI be not accepted. Dying declaration Ka II is a brief document consisting of about 9 or 10 lines. The
statement incorporated in dying declaration Ka 11 is very simple and
relates to the pouring of acid by Barati accused on Lekhai deceased. The
fact that the language us~d in it is rather chaste would not go to show
that the said statement cou.Id not have been made by Lekhai deceased.
The statement of Lekhai in Ex. Ka II that Barati accused had poured
the liquid from a bottle on him clearly establishes the guilt of Barati
accused.
Reference was made on behalf of the accused to the fact that statement Ka 11 was sent by Dr. Bisht to Additional District Magistrate
not immediately after recording that statement but on the third day.
According to Dr. Bisht, the delay took place because of rush of work.
No adverse inference, in our opinion, can be drawn from the fact
that the dying declaration was sent by Dr. Bisht on the third day after
recording the same. The dying declaration bears the thumb impression
of Lekh>!i deceased. Lekhai was sent from Misrikh dispensary soon
after the dying declaration was recorded and his injuries were examined. There could be no possibility of any ·sucl, dying declaration
being prepared subsequently.
576
SUPREME COURT REPORTS
[ 1974 I 3 S.C.R.
Mr. Mulla has pointed out that the language used· in dying declaration Kall is chaste while that used in report Ka! as well as in statement
Ka 22 has some words which are spoken by villagers. This fact, in
our opinion, is not of much significance because there is nothing abnormal or unusual in the same person using colloquial language while
talking to one person and using refined language while talking to another
person.
Apart from the dying declarations of the deceased, we have the
evidence of Nagai, Pancham, Bhallu and Jeorakhan PW s that they saw
Barati accused with a bottle in his hand near the cot of the deceased
when those witnesses got up on hearing alarm. The High O>urt
aci:cptcd the evidence of these witnesses and we see no particular reason
to take a different view. As mentioned earlier, the reason given by the
trial court in rejecting the evidence of these witnesses was wholly erroneous.
It is well settled that the High Court in an appeal under secfoin 417
of the Code of Criminal Procedure has full power to review at large the
evidence on which the order of acquittal was founded and to reach the
conclusion that upon the evidence the order of acquittal should be re·
versed. No limitation should be placed upon that power unless it be
found expressly stated in the Code, but in exercising the power conferred
by the Code and before reachingitsconclusion upon fact the High Court
should give proper weight and consideration to such matters as {I) the
views of the trial judge as to the credibility of the witnesses; (2) the
presumption of innocence in favour of the accused, presumption
certainly not weakened by the Jact that be bas been acquitted at bis
trial; (3) the right of the accused to the benefit of any real a11d reasonable
doubt and ( 4) the slowness of an appellate court in disturbing a finding
of fact arrived at by a judge who had the advantage of seeing the
witnesses. Keeping the above principles in view as well as the fact that
the approach of the trial court was clearly unreasonable, the High Court,
in our opinion, was fully justified in setting aside the acquittal of Barati
accused. There is, in our opinion, no force in the appeal which fails
and is dismissed.
P.B.R.
Appeal dismissed.
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