# Sunder/al v. The State of Madhya Pradesh, A.LR

- **Citation:** [1957] 1 S.C.R. 854
- **Court:** Supreme Court of India
- **Decided:** 1956-01-27
- **Case number:** Criminal Appeal No. 50 of 1957
- **Bench:** Bhagwati, J. L. Kapur
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sunder-al-v-the-state-of-madhya-pradesh-a-lr-1377
- **Pages:** 7

## Headnote

[1957]
Appeal against acquittal-JV hen High Court may interfere-·
Dying
declaration-Value
of-Expert
evidence-Discrediting
by
reference to text books-Practice-Appreciation of evidence-Inter·
/erence by Supreme Court.
The l-Iigh Court should not set asi<lc an acquittal unless there
are "subst:intial and compelling" reasons for doing so.
St1ra7pal Singh v. State, (1912) S.C.R. 193, A7mcr Singh '" The
State of P11n7ab, (1953) S.C.R. 418, Aher Raia Khima '"The State
of Saurashtra, (1955) 2 S.C.R. 1285, followed.
It is not a satisfactory way of disposing of the evi<lence of Jn
expert witness to discredit it by reference to text books unless the
passages \vhich are sought to discredit his opinion are put to hiin.
Sunder/al v. The State of Madhya Pradesh, A.LR.
(1954)
S.C. 28, followed.
Although the Supreme CouTt will not interfere with the findings of the High Court because its conclusions on the e\·i<lence as
to the guilt or innocence oi the ai.:LuscJ Jifler from that oi Lhe
High Court, yet \vhcrc the evidence is such that no tribunal could
legitin1ate\y infer fron1 it that the accused is guilty the Supreme
Court \voul<l set aside the conviction.
Stephen Seneviratne v. 'The King, A.LR. ( 1936) tl.c:. 289,
relied on.
CRIMINAL
APPELLATE
JURISDICTION :
Criminal
Appeal No. 50 of 1957.
Appeal by special leave from the judgment and
order dated January 27, 1956, of the Rajasthan High
Court at Jodhpur in Criminal Appeal No. 119 of 1954
arising out of the judgment and order dated March 23,
1954, of the Court of the Sessions Judge at Ganganagar
in Original Criminal Case No. 74 of 1953.
Moh an Behari Lal, for the appellant.
Kan Singh and T. M. Sen, for the respondent.
1957. April 2. The Judgment of the Court was
delivered by
KAPUR
J.-Bhagwandas
and
Netram
are
two
brothers who along with Mt. Rameshwari, a daughter
•
S.C.R.
SUPREME COURT REPORTS
855
of the former, were tried by the Sessions Judge of
Ganganagar for an offence under s. 302 of the Indian
Penal Code but were acquitted. On appeal to the High
Court of Rajasthan, the order of acquittal of Bhagwandas and Netram was reversed and they were convicted
under s. 302 read with s. 34 and sentenced to transportation for life. The order as to Mt. Rameshwari
was affirmed and she was acquitted. The convicted
persons have obtained Special Leave. to appeal under
Art. 136 of the Constitution.
The appeal is founded on two grounds :
(I) that there was no evidence against the appellants sufficient to warrant a conviction and (2) that
there were no compelling reasons for reversal of the
judgment of acquittal.
According to the prosecution the canal after a
temporary closure restarted flowing on May 5, 1953.
And although it was not his turn of water the deceased
Shivlal was allowed to take the water to irrigate his
fields.
On May 6 the canal was flowing to its full
capacity and Shivlal was to take his turn of water
which was of 6 hours duration from 8 a.m. to 2 p.m.
but he watered his lands from 8 a.m. to 10-30 a.m.
because the village diggi (pond) which was empty had
to be filled up. Mirab Ram Karan P.W. 1 with the
consent of Shivlal diverted the water for the purpose
of filling up the diggi, promising him (Shivlal) to get
him the rest of his turn of water, i.e., for 3! hours
after the diggi had been filled up. The diggi was
filled up by 1 p. m. on the 7th. Shivlal then wanted
to divert the water into his field but Bhagwandas
prevented him from doing so claiming the tum to be his.
According to Ram Karan Mirab P. W.1 the turn of
Bhagwandas was after Surta whose turn was next to
that of Shivlal.
As Shivlal was prevented from taking his turn of
water he started walking towards the village saying
that he would go and speak to Mirab. Bhagwandas
thereupon shouted that "the enemy was going" and
hit Shivlal on the head with a kassi.
Netram then hit Shivlal with lathi as a result of
which he fell down and then both beat Shivlal, and
1957
Bhagwan Das
v.
The State of
Rajasthans
Kapur J.
1957
Bhagwan Das
.v.
Tk State

## Text

1957
854
SUPREME COURT REPORTS
BHAGWANDAS
ti.
THE STATE OF RAJASTHAN
(BHAGWATI and J. L. KAPUR JJ.)
[1957]
Appeal against acquittal-JV hen High Court may interfere-·
Dying
declaration-Value
of-Expert
evidence-Discrediting
by
reference to text books-Practice-Appreciation of evidence-Inter·
/erence by Supreme Court.
The l-Iigh Court should not set asi<lc an acquittal unless there
are "subst:intial and compelling" reasons for doing so.
St1ra7pal Singh v. State, (1912) S.C.R. 193, A7mcr Singh '" The
State of P11n7ab, (1953) S.C.R. 418, Aher Raia Khima '"The State
of Saurashtra, (1955) 2 S.C.R. 1285, followed.
It is not a satisfactory way of disposing of the evi<lence of Jn
expert witness to discredit it by reference to text books unless the
passages \vhich are sought to discredit his opinion are put to hiin.
Sunder/al v. The State of Madhya Pradesh, A.LR.
(1954)
S.C. 28, followed.
Although the Supreme CouTt will not interfere with the findings of the High Court because its conclusions on the e\·i<lence as
to the guilt or innocence oi the ai.:LuscJ Jifler from that oi Lhe
High Court, yet \vhcrc the evidence is such that no tribunal could
legitin1ate\y infer fron1 it that the accused is guilty the Supreme
Court \voul<l set aside the conviction.
Stephen Seneviratne v. 'The King, A.LR. ( 1936) tl.c:. 289,
relied on.
CRIMINAL
APPELLATE
JURISDICTION :
Criminal
Appeal No. 50 of 1957.
Appeal by special leave from the judgment and
order dated January 27, 1956, of the Rajasthan High
Court at Jodhpur in Criminal Appeal No. 119 of 1954
arising out of the judgment and order dated March 23,
1954, of the Court of the Sessions Judge at Ganganagar
in Original Criminal Case No. 74 of 1953.
Moh an Behari Lal, for the appellant.
Kan Singh and T. M. Sen, for the respondent.
1957. April 2. The Judgment of the Court was
delivered by
KAPUR
J.-Bhagwandas
and
Netram
are
two
brothers who along with Mt. Rameshwari, a daughter
•
S.C.R.
SUPREME COURT REPORTS
855
of the former, were tried by the Sessions Judge of
Ganganagar for an offence under s. 302 of the Indian
Penal Code but were acquitted. On appeal to the High
Court of Rajasthan, the order of acquittal of Bhagwandas and Netram was reversed and they were convicted
under s. 302 read with s. 34 and sentenced to transportation for life. The order as to Mt. Rameshwari
was affirmed and she was acquitted. The convicted
persons have obtained Special Leave. to appeal under
Art. 136 of the Constitution.
The appeal is founded on two grounds :
(I) that there was no evidence against the appellants sufficient to warrant a conviction and (2) that
there were no compelling reasons for reversal of the
judgment of acquittal.
According to the prosecution the canal after a
temporary closure restarted flowing on May 5, 1953.
And although it was not his turn of water the deceased
Shivlal was allowed to take the water to irrigate his
fields.
On May 6 the canal was flowing to its full
capacity and Shivlal was to take his turn of water
which was of 6 hours duration from 8 a.m. to 2 p.m.
but he watered his lands from 8 a.m. to 10-30 a.m.
because the village diggi (pond) which was empty had
to be filled up. Mirab Ram Karan P.W. 1 with the
consent of Shivlal diverted the water for the purpose
of filling up the diggi, promising him (Shivlal) to get
him the rest of his turn of water, i.e., for 3! hours
after the diggi had been filled up. The diggi was
filled up by 1 p. m. on the 7th. Shivlal then wanted
to divert the water into his field but Bhagwandas
prevented him from doing so claiming the tum to be his.
According to Ram Karan Mirab P. W.1 the turn of
Bhagwandas was after Surta whose turn was next to
that of Shivlal.
As Shivlal was prevented from taking his turn of
water he started walking towards the village saying
that he would go and speak to Mirab. Bhagwandas
thereupon shouted that "the enemy was going" and
hit Shivlal on the head with a kassi.
Netram then hit Shivlal with lathi as a result of
which he fell down and then both beat Shivlal, and
1957
Bhagwan Das
v.
The State of
Rajasthans
Kapur J.
1957
Bhagwan Das
.v.
Tk State of
Ra}asthan
Kapw ].
856
SUPREME COURT REPORTS
[1957]
Mt. R:imeshwari also, it was alleged, joined in this
beating
with a wooden handle of a
kassi.
This
occurrence was witnessed by Hazari P. W. 3 who was
grazing his camels in the field . of Surta. He went up
to the place where the beating was going on
and
shouted to the assailants who "went away"
leaving
their kassi behind. Hazari
found
Shivlal seriously
injured and unconscious. He sprinkled some water on
his face which revived Shivlal and the latter asked
Hazari to take him to the Thana but Hazari he! ped
him to walk up to the Khala (threshing floor) of
Hukma which was at a short distance
from
that
place. Hazari P. 'vV. 3 has stated that the left Shivlal
with Jora, Jagmal, Bhogar, Begaram and Binja, and
on their asking him he (Hazari) told them what he
had seen.
Shivlal was then taken to Raisinghnagar
by Bhaggu and J agmal on a she-camel to the shop of
Gyani Ram P. W. 4.
There Shivlal told Gyani
Ram
also that Bhagwandas, Netram and Rameshwari had
assaulted him because of the water dispute and also
asked Gyani -Ram to send for his son Ram Pratap and
his Artya (Commission Agent) Ishardas. Ram Pratap
came at about 6 p. m.
Shivlal repeated the story to
him and was then taken to the hospital by J agmal,
Bhaggu and others.
At the hospital he was treated
by the doctor P. W. 11 but died the following day
(8th) at 8-15 a. m.
The First Information Report was based on a written
report Ex. P-1 by Ram
Pratap s/o Shivlal.
It was
recorded on May 7 at about 7-30 p.m. The prosecution supported their case by the evidence of
two
eye
witnesses, dying declarations made to 3 persons
and on the recovery of the kassi. They produced two
eye
witnesses
Begaram. P.W. 2 and Hazari P.W. 3.
The dying declarations were made to three persons
first to Jora P. W. 7, later to Gyaniram P. W. 4 at his
shop and lastly to Ram Pratap P. W. 5 who arrived at
the shop at 6 p. m.
If the
dying declaration
was
made to this witness it must have been at that time.
According to the
doctor's
evidence
Shivlal was
unconscious when he was brought to the hospital at
5 p. m. He h<id 15 injuries on his body, out of which
S.C.R.
SUPREME COURT REPORTS
857
injury No. 1 was with a sharp-edged weapon and
injury No. 2 with a blunt weapon and both these
injuries were grievous
and
were
"individually
and
collectively fatal sufficient to cause death."
The learned Sessions Judge disbelieved the whole
evidence and acquitted the accused.
He was of the
opinion that the evidence produced by the prosecution
was not "free from
suspicion and not sufficient to
convict them".
Begaram P. W.
2
was disbelieved
both by the Sessions Judge and the High Court. The
learned Sessions Judge described Hazari as a "facile
fluent liar" but his testimony was accepted
by
the
High Court.
Both courts rejected the
statement
of
Ram Pratap but the statements of Gyaniram and
Jara were accepted by the High Court although they
were rejected by the Sessions Judge.
The High Court has relied upon the testimony of
one eye witness Hazari P. W. 3 and two witnesses
before whom Shivlal is alleged to have made two dying
declarations.
There
are
apparent
contradictions
between the
testimony of Hazari and Bega.
The
learned High Court Judges disposed of this by saying
that Bega's presence
"on the spot is open to grave doubts. As such it
is, in our opinion, not proper to contradict the statement of a man who was present ort the spot by using
the statement of another man who was in all probability not there."
The
learned Judges have made
the
following
significant observation in regard to Hazari :
"It seems to us that Hazari had said this because
the prosecution was producing Bega, and he must have
been asked to say that Bega was also present. So far
as the story of Hazari about the incident itself is
concerned, nothing has been brought out in his crossexamination to throw doubts on this part of his
statement."
They also pointed out, but attached no importance,
to other contradictions in the statements of Hazari
made before the trial court and before the PoliCe. If
as observed by the learned Judges of the High Court
Hazari had mentioned the presence of Bega metel;
1957
Bhagwan IJas
v.
TM State of
Rajashan
Kapur J.
1957
Bhagwan Dru
v.
Tht State oj
.Rajasthan
Kapur J.
858
SUPREME COURT REPORTS
Ll957l
because the latter was to be produced as a prosecution
witness and because he (Hazari) had been asked to
mention it, then it would detract so materially from
his reliability that it would be dangerous to accept his
testimony as being of any great value which is still
more diminished by the finding as to the innocence of
Mt. Rameshwari.
The other piece of evidence which the prosecution
relied upon was the two dying declarations made by
Shivlal to Gyaniram P. W. 4 and fora P. W. 7. Besides
the infirmities
which
the
testimony
of
these
two
witnesses (Gyaniram P. W. 4 and Jora P. W. 1) suffered
from due to material contradictions in their respective
statements mad"'. at various stages of the case
and
which have been pointed out by the learned Se,sions
Judge who said about Gyaniram :
"In such a state of affairs I refuse to put any
weight and value to the statement of Gyaniram ....... .
. . . . . . . . . . . . . . . . . . . . . . . . . . " their evidence cannot be a
surf foundation for maintaining the conviction if the
statement of Hazari the sole eye witness is disregarded,
as it must be disregarded in this case; because ordinarily a dying declaration of the
kind which
the
prosecution has relied upon is by itself i!1Suflicient for
sustaining a conviction on a charge of murder.
The learned Sessions Judge was of the opinion that
the evidence of the doctor P. W. 11 made- the story
that Shivlal could walk for a little distance upto the
Kliala of Hukma or was able to talk so as to make a
dying declaration, improbable.
But the learned Judges
of the High Court disposed of this matter by saying
that the doctor was comparatively
young and
that
his
statement was not in accord with
the
op11110n
expressed
in
books on
Medical
J urisprudcnce
by
authors like Modi and Lyon. But it cannot be said
that the opinions of these authors were given
in
regard to circumstances exactly similar to those which
arose in the case now before us nor is this a satisfactory
way of disposing of the evidence of an expert unless
the passages which are sought to discredit his opinion
are put to him. This Court in S undarlal v. The State
of Madhya Pradesh( 1 ) disapproved of Judges drawing
(I) A.LR. 195{ S. C. 2H.
S.C.R.
SUPREME COURT REPORTS
859
conclusions adverse to the accused by
relying upon
such passages in the absence of their being put . to
medical witnesses. The learned Judges of the High
Court were, therefore, in error in accepting the testimony of these witnesses in support of the correctness
of the two dying declarations nor could the statement
of the deceased alleged to have been made in the
circumstances of this case be considered sufficient to
support the conviction of the accused. The recovery
of
the
kassi
is
a
wholly
neutral
circumstance
because it has not been proved that it belonged to
Bhagwandas.
Although this Court will not interfere with the findings of the High Court because its conclusions on the
evidence as to the guilt or innocence of the accused
differ from that of the High Court, yet where the
evidence is such that no Tribunal could legitimately
infer from it that the accused is guilty this court would
set aside the conviction. The Judicial Committee of
the Privy Council in Stephen Seneviratne v. The King(1)
in setting aside an order of conviction said :
" ........ there are here no grounds on the evidence,
taken as a whole, upon which any Tribunal could
properly, as a matter of legitimate inference, arrive at
a conclusion that the appellant was guilty ...... "
In our view the evidence in the present case is of such
quality and no legitimate inference of guilt
of
the
accused could properly be drawn.
The second point on which the judgment of the
High Court is assailed is the lack of compelling reasons
for setting aside the judgment of acquittal.
..
This court has held that the High Court should not
set aside an acquittal unless
there
are
"substantial
and compelling" reasons for doing so. Surajpal Singh
v. State(2), Ajmer Singh v. The State of Punjab( 3 ),
Ahcr Raja Khima v. The State of Saurashtra( 4 ). The
judgment of the High Court does not disclose any such
reasons justifying interference with the findings of the
trial Court.
(1) A.I.R. 1936 P.C. 289, 299.
(2) [1952] S.C.R. 193, 201.
(3) [1953] s.c.R. 418, 423.
(4) [1955] 2 S.C.R. 1285.
1957
Bhagwan D111
••
Tht Stau of
Rajasthar.
Kapur Ji
1957
Bhagwan Das
v.
The State of
Rajasthan
Kapur ].
1957
April 5.
860
SUPREME COURT REPORTS
[1957]
We would, therefore, allow this appeal, set aside the
judgment of the Rajasthan High Court, restore that of
the Sessions
Judge
and order the acquittal of the
accused.
Appeal allowed.
RAMJI LAL MODI
v.
THE STATE OF U.P.
(S. R. DA5 C.J., JAFER IMAM, S. K. DAs, GoVINDA
MEN0"1 and A. K. SARKAR JJ.)
Insult to Religion-f_,atu making such insult an offence-Conrtitutional validity-If violates
freedo1n of speech and express;.011lndian Penal Code (Act XLV of 1860), s. 295A-Constitm1011 of
fodio, Arts. 19(1)(a), J9(2), 25, 26.
This \Vas a petition challenging the constitutional validity of
s. 29'5.\ of the Jndi;in Penal Code and for quashing the pcfitioner's
con\"iction
thereunder for
publishing
an
article in a
1-:ionthly
rnag:.izinc of \Vhich he \Vas the printer, publisher and the editor.
It
\',"ls
contended on
his
behalf that
the
impugned
section
infringed his fundamental right to freedom of speech and expression conferred by Art. l~(l )(a) of the Constitution and \Vas not a
hnv
i1np~sing reasonable restrictions on the right in the interests
of public order under d. (2) of Art. 19, which alone could have
afforded a justification for it.
field, that s. 295A of the Indian Penal Code was well with
the protection of cl. (2) of Art. 19 of the Constitution and
its
validity \Vas beyond question.
The expression "in the interests of" occurring in the amended
cl. (2) of Art. J 9 had the effect of making the protection afforded..
by that clause very wide and a law
not
directly
desigr.ed
to
maintain public order would well be
within
its
protection
if
such acti\•ites as it
penalised had a
tendency to
cause p·ublic
disorder.
Debi Soron v. The State of Bihar, A.LR. ( 1954) Pat. 254,
referred
to.
It was absurd to suggest that insult to religion as an offence
could have no bearing on public order so as to attract cl. (2) of
Art. 19 in view of the provisions of Arts. 25 and 26 of the constitution which, while guaranteeing freedom of religion, expressly
made it subject to public order.