# CHANDRA MOHAN TIW ARI AND ANR v. ~ -· -{ STATE OF MADHYA PRADESH

- **Citation:** [1992] 1 S.C.R. 313
- **Court:** Supreme Court of India
- **Decided:** 1992-01-22
- **Bench:** S. Ratnavel Pandian, K. Jayachandra B Reddy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/chandra-mohan-tiw-ari-and-anr-v-state-of-madhya-pradesh-11312
- **Pages:** 22

## Headnote

Code qfCriminal Procedure. 1973: Section 379-Scope of
~-
Supreme Court (Enlargement of Criminal Appellate Jurisdiction) c
Act, 1970: $ection 2~<Jcope of
Constitution of India, I 950: Article l 34~<Jcope o(
-ft
Criminal Trial--,-Accused--Acquitta/ by Trial Court-Reversal of acquittal by High Court and imposition of life sentence~1cope of right of
appeal by the accused~<Jcope of inte1.fere11ce hy Supreme Court in such
D
appeals.
Criminal Trial-Murder-Motive-When motive is equally balanced
the Court should look to surrounding circu111stu11ces to/ind out the truth.
~
E
Criminal Trial-Related witnesses-Re/iahility of-Murder inside
the house at the dead end 0(night-It isfittile to expect the prosecution to
produce iiulependent omsiclers as witness-Parents of the deceased are
prohahle and nalllral witnesses-He/cl though parents are interested witnesses yet their evidence cannot he rejected simply on the_ ground that
they are interested witnesses--lnterested ivitnesses are not necessarily
.fal.<e tl'itnesses.
F
The appellants were alleged to have kidnapped, wrongfully
-~
confined and raped S, the daughter of PWs S and 6. They were
~
prosecuted for offences punishable under sections 363, 366 and 376
of the Indian Penal Code. S was examined before the Magistrate
G
where she stated that because of the threat given by the appellants
and as instructed by them she lodged a false report at the police
station implicating some other persons, whereas infact she was kidnapped, wrongfully confined and raped hy the appellants. The Magistrate, discharged the first appellant, and committed the second
~
appellant alone to take his trial. On a revision preferred against the
H
order of discharge of the first appellant both the appellants were
-r...
313
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F
314
SUPREME COURT REPORTS
[1992] I S.C.R.
put up for trial before the third Additional Sessions Judge, Bhopal.
During the said trial both appellants were on bail. The case was
fixed for 21.8.1972 on which date the victim S was to be examined
as a prosecution witness. While the matter stood thus S lodged a
report at the 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.
However, it was alleged that on the night of 20.8.72, i.e. immediately before the day when the case was fixed and victim S was to
be examined as a prosecution witness, the first appellant armed
with a pistol and the second appellant with a 'farsa' entered into the
house of S and the first appellant fired a shot causing instantaneous
death of S The appellants were prosecuted for murder. The Sessions
Judge acquitted both the appellants. The State preferred an appeal
before the High Court. The High Court allowed the appeal, set
aside the acquittal order and convicted the first appellant under
Section 302 and the second appellant under section 302, read with
Section 34 !PC and sentenced e.ach of them to undergo imprisonment for life.
The appellants preferred an appeal to this Court under section
379 of the Code of Criminal Procedure and Section 2 (a) of the
Supreme Court (Enlargement of Criminal Appellate Jurisdiction)
Act, 1970 and it was contended on their behalf (i) that the High
Court erred in reviewing the evidence and reversing the order of
acquittal; (ii) that the prosecution has failed to prove the motive of
the crime; (iii) the victim's parents were inimical towards the appellants and their evidence cannot be relied upon because they were
interested witnesses.
Dismissing the appeal, this Court,
HELD : 1. The Trial Court was wrong in jettisoning the entire
evidence in a very scanty and unsatisfactory manner with unsound
G
reasoning. Whilst the Trial Court's conclusion was arrived at by
abjuring the unimpeachable and reliable evidence of parents of the
deceased 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 illega

## Text

_Characters 0–39,814 of 56,539. This is a partial read: ask again with offset=39814 for what follows._

:
CHANDRA MOHAN TIW ARI AND ANR.
A
v.
~ -· -{
STATE OF MADHYA PRADESH
1
JANUARY 22, 1992
[S. RATNAVEL PANDIAN AND K. JAYACHANDRA
B
REDDY, JJ.]
Code qfCriminal Procedure. 1973: Section 379-Scope of
~-
Supreme Court (Enlargement of Criminal Appellate Jurisdiction) c
Act, 1970: $ection 2~<Jcope of
Constitution of India, I 950: Article l 34~<Jcope o(
-ft
Criminal Trial--,-Accused--Acquitta/ by Trial Court-Reversal of acquittal by High Court and imposition of life sentence~1cope of right of
appeal by the accused~<Jcope of inte1.fere11ce hy Supreme Court in such
D
appeals.
Criminal Trial-Murder-Motive-When motive is equally balanced
the Court should look to surrounding circu111stu11ces to/ind out the truth.
~
E
Criminal Trial-Related witnesses-Re/iahility of-Murder inside
the house at the dead end 0(night-It isfittile to expect the prosecution to
produce iiulependent omsiclers as witness-Parents of the deceased are
prohahle and nalllral witnesses-He/cl though parents are interested witnesses yet their evidence cannot he rejected simply on the_ ground that
they are interested witnesses--lnterested ivitnesses are not necessarily
.fal.<e tl'itnesses.
F
The appellants were alleged to have kidnapped, wrongfully
-~
confined and raped S, the daughter of PWs S and 6. They were
~
prosecuted for offences punishable under sections 363, 366 and 376
of the Indian Penal Code. S was examined before the Magistrate
G
where she stated that because of the threat given by the appellants
and as instructed by them she lodged a false report at the police
station implicating some other persons, whereas infact she was kidnapped, wrongfully confined and raped hy the appellants. The Magistrate, discharged the first appellant, and committed the second
~
appellant alone to take his trial. On a revision preferred against the
H
order of discharge of the first appellant both the appellants were
-r...
313
A
B
c
E
F
314
SUPREME COURT REPORTS
[1992] I S.C.R.
put up for trial before the third Additional Sessions Judge, Bhopal.
During the said trial both appellants were on bail. The case was
fixed for 21.8.1972 on which date the victim S was to be examined
as a prosecution witness. While the matter stood thus S lodged a
report at the 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.
However, it was alleged that on the night of 20.8.72, i.e. immediately before the day when the case was fixed and victim S was to
be examined as a prosecution witness, the first appellant armed
with a pistol and the second appellant with a 'farsa' entered into the
house of S and the first appellant fired a shot causing instantaneous
death of S The appellants were prosecuted for murder. The Sessions
Judge acquitted both the appellants. The State preferred an appeal
before the High Court. The High Court allowed the appeal, set
aside the acquittal order and convicted the first appellant under
Section 302 and the second appellant under section 302, read with
Section 34 !PC and sentenced e.ach of them to undergo imprisonment for life.
The appellants preferred an appeal to this Court under section
379 of the Code of Criminal Procedure and Section 2 (a) of the
Supreme Court (Enlargement of Criminal Appellate Jurisdiction)
Act, 1970 and it was contended on their behalf (i) that the High
Court erred in reviewing the evidence and reversing the order of
acquittal; (ii) that the prosecution has failed to prove the motive of
the crime; (iii) the victim's parents were inimical towards the appellants and their evidence cannot be relied upon because they were
interested witnesses.
Dismissing the appeal, this Court,
HELD : 1. The Trial Court was wrong in jettisoning the entire
evidence in a very scanty and unsatisfactory manner with unsound
G
reasoning. Whilst the Trial Court's conclusion was arrived at by
abjuring the unimpeachable and reliable evidence of parents of the
deceased 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 or
I
:j
···~ II
perversity nor is it erroneous. Fur !her, independent analysis of the
A-·
H
evidence hy this Court shows that there arc absolutely no substan-
C.M. T!WAR! v.STATE
315
" -<
tial and compelling reasons to brush aside the testimony of these
A
two eye-witnesses and to take a contrary finding to that of the High
Court. (331 C-D; F-GI
1.1 The organic synthesis of the events, circumstances and facts
of the case lead only to one conclusion, namely, that the prosecution
has satisfactorily proved the guilt of the accused beyond any shadow B
of doubt and consequently the judgment of the High Court docs not
call for any interference. (334 C'-D-E)
Tqrachand v. State (}(Maharashtra, AIR 1962 S.C. 130 = (1962)
2 S.C.R. 775; Kishan and Ors. v. State (}(Maharashtra, (1970) 3 S.C.C.
35; Mahebub Beg and Ors. v. State (}(Mahrashtra, (S.C.) (1966 Maharashtra
L.J. 12; Babu v. State of U.P., AIR 1965 S.C. 1467=(1965) 2 S.C.R.
771; Podda Narayana and Ors. v. State of Andhra Pradesh, AIR 1975
S.C. 1252 = )1975) Supp. S.C.R. 84; Ram Kumar Pande v. The State of
Madhya Pradesh. A.I.R. 1975 S.C. 1026=(1975) 3 S.C.C. 815; Rajendra
Prasad v. State of Bihar A.LR. 1977 S.C. 1059=(1977) 3 S.C.R. 68;
Kishore Singh aud Anr. v. The State o( Madhya Pradesh, A.I.R. 1977
S.C. 2267 = (1978) l.S.C.R. 635; llhajan Singh and Ors. v, Stale (}(
Punjab, )1978) 4 S.C.C. 77; Dinanath Singh & Ors. v. State <~(Bihar,
A.LR. 1980 S.C. 1199 = (1980) 1 S.C.C. 674; Pattipati Venkaiah v.
State o( Andhru Pradesh (1985) 4 S.C.C. 80; Sita Ram and Ors. v.
State of U.P .. )1979) 2 S.C.C. 656; Rajput Ruda Meha and Ors. v.
State of Gujarat, )1980) I S.C.C. 677; refercd to.
Roop Singh and ors. v. State of Punjab. A.LR. 1973 S.C. 2617 =
)1974) 1 S.C.R. 528; Dargahi and ors. v. Stute of U.P., A.LR. 1973
S.C. 2695 = (1974) 3 S.C.C 302; flarati v. Stale of' U.P., A.LR. 1974
S.C. 839 = (1974) 3 S.C.R. 570; G./I. /'ate/ v. State of Maharashtra.
A.LR. 1979 S.C. 135 = (1978) 4 S.C.C. 371; Kanwali v. State of U.P.
[1971) 3 S.C. C. 58; referred to.
2.
There is overwhelming evidence both oral and documentary in clearly establishing a strong motive for the appellants to put
an end to the life of the deceased. The. several impelling circumstances attending the case namely, the prior incident of kidnapping
and rape, the conduct of the deceased in giving her statement supporting the case of the proscctuion, the lodging of the complaint by
S against the second appellant and lastly the posting of the case for
recording the evidence of S when taken in conjunction with the
evidence of parents of the victim unevasivcly and unerringly show
that these two appellants had strong motive to snap the life thread
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316
SUPREME COURT REPORTS
[1992] I S.C.R.
A
of the victim so that she could not give evidence on the next day .in
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the case of kidnaping and rape. [327 C-D-E; 328 A-D-C]
State o/f'imjab v. f'ri/11111 singh, (1977] 4 S.C.C. 56; relied on.
3.
Interested witnesses arc not necessarily false witnesses though
B the fact that those witnesses have personal interest or stake in the
matter must put the court on its guard, that the evidence of such
witnesses must he suhjected 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
..illll
once disregarded simply because it came from interested parties.
~
C
[330 A-8]
Siya /111111 Rai v. State ()( Bihar, [1973] 3 S.C.C. 241; Sarwan
Singh v. Stall! o(Punjab, (1976] 4 S.C.C. 369; Birbal v. Kedar, A.LR.
1977 S.C. 1=[1977) 2 S.C.R. I ; Gopal singh v. State of U.P .. A.LR.
1979 S.C. 1822=[1978[ 3 S.C.C. 327; Hari Obulla Reddy & Ors. v.
D
,\"tu/I! of A11<//1ru Pradesh. [1981) 3 S.C.C. 675; Anvaruddin & Ors. v.
E
F
G
H
Shakoor & Ors .. [1990) 2 Judgments today S.C. 83; relied on.
3.1 The evidence of parents of the deceased cannot be thrown
over-hoard simply on the ground that their evidence is of the interested party hecause 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. The parents of the victim are the natural and probable eye-witnesses as the
incident had occur~ed in the odd hours inside their house. 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 culprit. [330 D; 328 E; 331 EJ
3.2 The chronology of events narrated and the factual conspectus recounted hy the parents of the deceased arc unshakable
and tlH• intrinsic quality of the evidence of these two witnesses compel lhis Court to implicitly rely on their testimony and to accept the
same. In spite of the fact that these two witnesses have been subjcl'tcd to intensive and incissivc cross-examination, nothing tangihlc
has hccn hrought for discarding their testimony. No doubt, the earlier conduct of the appellants in kidnapping and forcihly raping
thc'ir <laughter, the victim should have inflicted deeper wounds in
thl' 1uind.., of tlu.~sc t\\·o \\'itncsscs, but that cannot in any \\'ay destroy
the v:d11t' of fhcir evidence \vhich is cogent and trust\vorthy.
[3311 II: .\JI A-Bl
,.
'
_,-{.
C.M. TIWARI v. STATE IPAND!AN, J.]
317
., '·
. CRIMINAL APPELLATE JURIS.DICTION: Criminal Appeal No.
A
36 of 1979.
From the Judgment and Order dated 17.11.1978 of the Madhya Pradesh
High Court in Criminal Appeal No. 477 of 1973 ..
A.N. Mulla, Dhruv Mehta, Aman Vachher and S.K. Mehta for the
B
Appellants.
B.Y. Kulkarni and Uma Nath Singh for the Respondents.
The Judgment of the Court was delivered by
S. RA TNA VEL P ANDIAN, J, The two appellants, namely, Chandra
Mohan Tiwari and Ram Pal Singh Sengar have tiled 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
c
has allowed the appeal preferred by the State by setting aside the order of D
acquittal passed by the Trial Court and convicted the first appellant under
Section 302 !PC and the second appellant under Section 302 read with 34
!PC 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 follows :
E
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
the. cornpound there are Government quarters, one of which was occupied
by appellant Ram Pal Singh (Appellant 1'jo. 2), who was serving as Gram
Sevak iu 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, Etawali District (U.P.). On 24.5.1970 he along with his deceased daughter, Saroj. left Budhni for Bhopal enroute to Dahiyapur. Al
Bhopal he stayed with his relative by name Arjun Singh. On 25.5.1970 31
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SUPREME COURT REPORTS
11992] I S.C.R.
about 11.00 A.M. 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 aud 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 Ex. P/l 0 on
3.8.1970 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
to fore-stall any action being taken against them. The second appellant
took Saroj in a taxi to Hoshangabad and left her ne~r the police station
with an instruction to lodge a false complaint at the police station that she
was kidnapped from Bhopal on 25.5.1970 by one Ramnath and lndrasen
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 Ex. 0/15 on 9.8.1970 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 ple:yto 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 inves,tigation 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
Sections 363, 366 and 376 !PC.
·
The victim Saroj, when examined before the Magistrate on 12.7.1971
stated in her statement Ex. P/25 that she was kidnapped by both the
appellants and wrongfully confined and also subjected to sexual intercourse and that she lodged the false report Ex. D/15 at the Hoshangabad
police station under duress and as instructed by the second appellant
C.M. TIWARI ''·STATE [PANDIAN, J.]
319
.... . •.
herein. The Magistrate discharged the first appellant, and committed the
A
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 !PC. During the said trial both appellants were on bail. The case
was fixed for recording evidence from 21.8.1972 on which date the victim
B
Saroj was to be examined as a prosecution witness. While the matter stood
thus, according to the prosecution, on 20.6.72 Saroj lodged a report
Ex. P/7 at Budhni Police Station complaining that the second appellant
had forcibly entered into the backyard of her house, but took to his heels
r
when she raised a hue and cry.
c
•
In the above background, the present occurrence had occurred on the
intervening night of 20/21 st August 1972. The prosecution case is that on
that fateful night the first appellant armed with a pistol and the s.econd
appellant with a 'farsa' entered into the house of PW-6 through the mai.n
. door which was kept ajar by PW-5 who went out of the house to answer
call of nature inside the compound and that the first appellant fired a shot
D
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 indentified the appel-
!ants 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 I and 2 by mentioning the name of the appellants as
E
the assailants and requested PW-I to lodge a report at the police station.
Accordingly, PW-I lodged the First Information Report Ex. P/I at 1.30
A.M. 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 the dead body to the hospital for necropsy. On the next day
i.e. on 21.8.72 both the appellants were arrested when they had come to
F
)
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
G
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 !PC and sentenced each of them to undergo imprisonment for
life. Hence the present appeal is preferred by the appellants on being
H
aggrieved by the impugned judgment of the High Court.
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320
SUPREME COURT REPORTS
[1992) 1 S.C.R.
Mr. A.N. 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 Ex. D/15, the First Information Report dated 9.8.70 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-aha 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 a.ccepted and implicitly relied upon as
their testimony is highly tainted with interestedness, that the contents of
Ex. D-15 whereby the deceased had implicated Ram Nath Singh and one
Indra Sen as assailants of kidnaping belie the version of PW s 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 'Iota' (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 PW5 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 indentity could not be
established and that the life of the girl might have been put to an end by
the inmates of the said house, particularly her father on account of some
conspiracy since the victim girl wanted te 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
_,..,.__
C.M. TIWAR! v. STATE [PANDIAN, J.J
321
of the Code of Criminal Procedure of 1973 (hereinafter referred to as the
A
'code') and Section 2 (a) of the Supreme Court (Enlargement of Criminal
Appellate Jurisdiction) Act 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 a term of ten years of more, that person may appeal
B
to the Supreme Court. This section is newly introduced in the Code of
1973 (Act 2 of 1974) on the recommendation of the Law Commission of
India in its 41st Repon. Anicle 134 (!)(a) of the Constitution envisages
that 'an appeal shall lie to the Supreme Coun from any judgment, final
order or sentence in a criminal proceeding of a High Coun in the territory
of India if the High Coun has on appeal reversed an order of acquittal of C
an accused person and sentenced him t.o death. To say in other words
under Article 134 (!)(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 11( death. The
right of appeal is also extended under Article 134 (I) (b) to cases where
the High Court has withdrawn for trial before itself any case from any
D
court subordinate to its authority and has in such trial convicted the accused person and sentenced hin1 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 !34A by the
High Coun cenifying that the case is a fit one for appeal to the Supreme
Court but, of course, subject to the proviso to Article 134 (! ).
E
In this connection, it. is pertinent to note that the Govern1nent 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 (I) should be enlarged and that in all cases in which the
accused persons are sentenced to death, there should be a right of appeal
F
to the Supreme Coun 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 (I) the High Court has the power to certify the case as a fit
one for appeal to the Supreme Coun under Clause (c) and further there is
also the safeguard provided by the wide powers of the Supreme Court
G
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 Cenificate for appeal
under Article !34 (A). See the decision of the constitution Bench in
Tamdwnd v. State o(Mahamshtru. AIR 1962 S.C. 130 ~ [1962] 2 SCR
775 and the later decision in Kishan and others v. ,)fate o.lMahurushtra.
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322
SUPREME COURT REPORTS
I 1992] I S.C.R.
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[1970] 3 SCC 35. To avoid proliferationwe are not citing all the decisions
on this aspect.
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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 cqntury
such cases have been dealt with by the High Courts subject to
the superintendence of the Privy Coundl 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 (I) (a) and (bl 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 IO years or more. Be that as it may
in its 4lst 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 hot 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 in1priso111nent
for a term of I 0 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 Sup_reme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 .
.Vide the 14th Report of the Law Commission (at page 52) and the
41st Report of the Law Commission (paragraphs 31.65 to 31.69 at pages
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281-283).
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Section 2 of the Act of 1970 reads thus :
2.
l·.,'11/(Jr>:ed ll{Jju~llute j11risdiction ,~/ Supreu1e ( 'ourt in reg11nl to ('l'in1i11al 11u1tte1:\·. Without prejudice to the powers conferred on the Supreme Court by clause (I) of Art. 134 of the
Constitution, an appeal shall lie to the Supreme Court from
any judg1nent. final order of sentence in a cri1ninal proceeding
" .
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C.M. TIWARI v. STATE [PANDIAN, J.J
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 sentenfod him to imprisonment for life or to
imprisomneut for a period of not less than ten years ;
A
(b) has withdrawn for trial before itself any case from any
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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 C
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 134(1) or
under the Act of 1970 or·Section 379 of the Code an appeal does not lie as
q/'right to the Supreme Court agailfst 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 (I) certifying that the case
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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 otheis v. State<!/' Maharashtra, (S.C.) CR. A . .120/64
dated 19.3.1965 reported in.1966 Maharashtra law.!ournal 12 and Balm
v. State of'lJl'. AIR, 1965 S.C. 1467 = [1965] 2 SCR 771.
The resultant position of law from the co1tjoined reading of the
above provisions of the Constitution, the Act of 1970 and the Code of
Criminal Procedure is as follows:
(I) Under sub-clause (a) of Article 134 (I) an appeal lies as o/'11i;ht
to the Supreme Court in a case where the High Court has reversed an order of acquittal of an accused person a11d se1itenced
him to death.
(2) Under sub-clause (bl of Article 134 (I) an appeal lies as <!/' rii;ht
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 o(rii;ht
to the Supreme Court in a case where the High Court has reversed an order of acquittal of an accused person and sentenced
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him to imprisonment for life or imprisonment for a period of not
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less than I 0 years.
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(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 I 0 years.
(5) Under Section 379 of the Code, which is now newly introduced
in line with the Constitutional provisions of Article 134 (I) (a)
and (b) and with Section 2 of the Act of 1970, an appeal lies as
~(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 tenn of I 0 years or more.
(6) In cases not covered by Article 134 (I) (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 (I) (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 (I) (a) and (b) and Section 2 (a) and (bl of the Act of
1970.
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This Court in Podda Narayana and others v. State o(Andhra Pradesh.
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AIR 1975 S.C. 1252 = (1975] (Supp) SCR 84 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
Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act. 1970."
M.H. Beg. J. as he then was, speaking for the Bench in Ram Kumar
Pande v. Tlte State ()(Madhya Pradesh. AIR 1975 S.C.1026 = (1975] 3
sec 815 observed as follows :
"Strictly speaking. no certificate of the High Court is required
for such an appeal where an acquittal has been converted into
a conviction under S. 302/34 I. P.C.. 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."
'
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325
This Court in Rajendra Prasad v. State Qf Bihm·, AIR 1977 S.C.
1059 ~ [1977) 3 SCR 68 while disposing of an appeal preferred under
Section 2 (a) oftbe Act of 1970 laid down the following dictum:
"Thus when two courts, have come to a different conclusion
A
on the same evidence, we had ourselves to go through the
entire evidence carefully in order to see whether the appreciaB
tion of the evidence by the Sessions Judge was so unreasonable and unrealistic as to e1ltitle the High Court to interfere
with the same."
In Kishore Singh and another v. The State of Madhya Pradesh, AIR
1977 S.C. 2267 ~ [1978] I SCR 635 the following view similar to the one
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taken iii Ram Kumar Pande's case was reaffirmed and it reads thus:
"The High Court is not right in holding that a certificate is
necessary under Article 134 (I) (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
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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
imprisorunent, in respect of which an appeal to the Supreme Court lies as
ofriRllf was examined and the following maxim has been laid down.
"The well settled rule of practice in a case of an appeal against
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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 reasonably sustainable, on
the evidence on record. the Appellate Court will interfere with
an acquittal. If the Appellate Court sets aside an acquittal and
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convicts, we have to be satisfied, after examining the prosecutio1_1 and defence cases and the crucial points e1nerging for
decision 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."
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Kailasam, J. speaking for the Bench in l/h4jan Singh and others v.
Staie· of f'1111jah, [1978) 4 SCC 77 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
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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 au 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 v. State of flilwr, AIR 1980 S.C. 1199 =
[1980] I SCC 674, an appeal under Section 2 (a) of the Act of 1970 was
directed against the judgment of the Patna High Court convicting the
appellants therein under Section 302 read with 34 !PC 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 l'a1tiJ1ati Venkaialt '"State o(A11</hra l'radesh, [1985] 4 SCC 80
affinned 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 1/11111 and Others v. State~( U.I' ..
(1979] 2 SCC 656 and RajJIUI Ruda Me/111 a11d Others v. Stare 0((;1tjarat.
o
(1980] 1 sec 677.
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
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may be referred to :
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C.M. TIWARI '"STATE [PANDIAN, J .. J
327
Roop Singh and othei:' v. ,\'rate 0(1'1111iah. AIR 1973 S.C. 2617 =
A
[1974] I SCR 528; Dmga/li and others v. State of U.P., AIR 1973 S.C.
2695 = [1974] 3 SCC 302; Barati v. State<?( U.P .. AIR 1974 S.C.839 =
[1974] 3 SCR 570; G.B. Patel v. State of Maharashtra. AIR 1979 S.C.
135 = 1978 (4)SCC 371; and Kamva/i v. Stale o[U.P. [1971] 3 SCC 58.
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 fin· the murder:
There is overwhelming evidence both oral and documentary in clearly
establishing a strong motive for the appellants/accused to put an end to
the life of the deceased Saroj, who when examined before the Magistrate
on 12.7.1991 had deposed under Ex. P/25 that she was kidnapped by both
the appellants, wrongfully confined and subjected to sexual intercourse,
though she initially lodged a report under Ex. D-15 on 9.8.70 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 Ex. P-7 on 20.6.1972 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 !PC was fixed for recording the evidence of the victim in that
case, namely, the deceased herei1f from 21.8.1972. Both the appelfants
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 20/21 st
August 1972. The leamed counsel for the appellauts 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 kiduaping
and committing rape on her even if the identity of the real assailant/
assailants 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 o/l'11njab v. /'ritam Singh, [1977] 4 SCC
56 "when the motive was equally balanced, the Court had to look to ·
surrounding circu1nstances in order to find out the truth.''·
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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 Ex. P. 25 supporting the case
of the prosecution registered on the complaint given by PW- I at the
instance of PW-6, the lodging of the complaint under Ex. P-7 by Saroj on
20.6.72 against the second appellant and lastly the posting of the case for
recording the evidence of Saroj on 21.8.72-when taken in conjunction
with the evidence of PWs 5 and 6, unevasively and unerringly show that
these two appellants had strong motive to snap the life threat of the victim
so that she could not give evidence on the next day in the case of kidnaping
and rape.
The contents of Ex. 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 Ex. P/25 explaining under what circumstances she was forced to give
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Ex.