Holding

Article 136 permits private parties to seek special leave against High Court acquittals, and the High Court's unreasoned judgment was set aside, restoring the trial court convictions.

Summary

The case arose from a property dispute in which Madan Rai and his three sons fired gunshots, killing a teenage boy. The trial court convicted Madan Rai under IPC sections 302 and 440 and the others under section 440, but the Allahabad High Court acquitted all accused, setting aside the convictions. The father of the deceased (Ramakant Rai) and the State of Uttar Pradesh filed appeals under Article 136 of the Constitution, seeking special leave to challenge the High Court's acquittal. The Supreme Court held that a private party may invoke Article 136 and that special leave is discretionary, granted only for good reasons. It found the High Court's judgment unreasoned, noting factual errors such as the existence of two gunshots, misinterpretation of the FIR timing, and improper assessment of eyewitness and medical evidence. Consequently, the Court set aside the High Court's order, restored the trial court's convictions of Madan Rai under sections 302 and 440 and of the other accused under section 440, and upheld the sentences. The appeals were allowed.

Issues considered

Whether a private party can invoke Article 136 of the Constitution to challenge a High Court acquittal.
Whether special leave should be granted in the present case.
Whether the High Court's judgment was unreasoned and factually erroneous.
Whether an appellate court must give reasons when overturning a lower court's decision.
Assessment of the credibility of eyewitness testimony versus medical evidence.
Application of the standard of proof beyond reasonable doubt in a murder trial.

Legislation cited

Code of Criminal Procedure, 1973s. 374, s. 386
Constitution of Indias. Article 136
Indian Penal Code, 1860s. 302, s. 34, s. 440

Subjects

Article 136special leaveprivate party appealacquittalmurderIPC 302IPC 440proof beyond reasonable doubteyewitness testimonyappellate jurisdictioncriminal appeal

Judgment

RAMAKANT RAI A
v.
MADAN RAI AND ORS.

SEPTEMBER 25, 2003

[DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ.] B

Constitution of India, 1950 :

Article 136-Appeal against acquittal by High Court-At the instance
of interested private parties-Maintainability of-Held : Appeals are C
entertained by Special Leave granted by Supreme Court-Howeve1~ appeals
, are not granted as a matter of course but for good and sufficient reasons.

Article 136-Power under-Nature and scope of-Discussed

Penal Code, 1860: Sections 302 and 440-Murder ofyoung boy over D
property dispute-Conviction ofmain accused under sections 302 and 440
and others under section 440-Acquittal by High Col!rt holding the
prosecution case to be incredible-On appeal, held: In view ofunsatisfactory
nature of disposal of the appeal and inherent improbabilites and
incongruities in the conclusions, unreasonedjudgment ofHigh Court liable
to be set aside-Order of triai Court upheld E
Code of Criminal Procedure, 1973 : Sections 374 and 386-Appeal
from conviction before High Court-Necessity of giving reasons-Held:
When appellate court takes a contrary view to that of lower court, it is
necessary to clearly indicate reasons therefor-Plea that even though
arguments are not very elaborately reasoned, yet it can be supplemented F
> by arguments is fallacious-Arguments are not substitutes for reasoning-
However, when appellate court concurs with the views of trial Court there
is no necessity of giving reasons.

Criminal trial :
G
Eyewitnesses-Testimony of-Credibility, test to determine-
Discussed- Further, when eyewitnesses account is credible and trustworthy,
medical opinion pointing to alternative possibilities is not accepted as
conclusive.
---./ H
17
18 SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.

A Proof beyond reasonable doubt- 'Reasonable doubt '-Meaning of-
Probability, and degrees of it-Concept of-Discussed.

According to the prosecution, there was a long standing dispute
between the parties over properties. On the date of occurrence accused
came with his licensed gun to the spot and his three sons were armed
B
with lath is and started demolishing the walls. Appellant-father of the
deceased, informant and his young son requested them not to do so.
Accused fired one gun shot and as a result PW-2 , PW-5 and many 1

villagers came to the spot of occurrence. Thereafter, the accused fired
a gun shot at the young boy which proved fatal. PW-2 and PW-5
c witnessed the incident. FIR was lodged. Investigation was carried out
and charges were framed. Trial Court convicted and sentenced the
accused under section 302 and 440 IPC, however, acquitted the other
three accused of charges under section 302 read with section 34 IPC
but ~onvicted them under Section 440 JPC. High Court acquitted the
D accused persons. Hence the present appeals, one by the appellant and
the othe; by the State challenging only the acquittal of the sons of the
accused.

Appellant-father of the deceased contended that the conclusions
E of the High Court were without any basis _a.nd the judgment was
practically unreasoned and conclusions cannot be substitute for reasons.

Acquitted accused person contended that the special leave petition
at the instance of the father of the deceased was not maintainable; and
that when two views are possible and the High Court within well-
F chiseled conclusions has accepted a view it would not be proper to ....
exercise jurisdiction under Article 136 of the Constitution.

Allowing the appeals, the Court

G HELD : 1.1. There is no slightest doubt about the competence of
a private party as distinguished from the State; to invoke the jurisdiction
of this Court under Article 136 of the Constitution of India, 1950 "
against a judgment of acquittal by the High Court. The circumstance
that the Cr. P.C., 1973 does not provide for an appeal to the High Court·
\.----
H against an order of acquittal by a subordinate Court, at the instance
RAMAKANT RAJ v. MADAN RAI 19

of a private party, has no relevance to the question of the power of this A
Court under Article 136. Appeals under Article 136 are entertained by
special leave granted by this Court, whether it is the State or a private
party that invokes the jurisdiction of this Court, and special leave is
not granted as a matter of course but only for good
and sufficient reasons, well established by the practice of this Court. B
Hence, the special leave petition filed by the appellant is clearly
maintainable. (27-B, F, H; 28-A, 29-C)

1.2. Appellate power vested in this Court under Article 136 is not
to be confused with ordinary appellate power exercised by appellate
courts and tribunals under specific statutes. It is a plenary power, C
'exercisable outside the purview of ordinary law' to meet the pressing
demands of justice. [27-B-C)

Durga Shankar Mehta v. Thakur Raghuraj Singh, AIR (1954) SC
520, relied on. D
1.3. Article 136 neither confers on anyone the right to invoke the
jurisdiction of this Court nor inhibits anyone from invoking the
Court's jurisdiction. The power is vested in this Court but the right
to invoke the Courts' jurisdiction is vested in no one. The exercise of
the power is not circumscribed by any limitation as to who may invoke E11
it. Where a judgment of acquittal by the High Court has led to a serious
miscarriage of justice this Court cannot refrain from doing its duty and
abstain from interfering on the ground that a private party and not
the State has invoked the Court's jurisdiction. [27-C-E)
F
Mohan Lal v. Ajit Singh, (1978) 3 SCC 279, referred to.

Arunachalam v. P.S.R. Sadhanantham and Anr., (1979) 2 SCC 279
and Sadhanantham v. Arunachalam and Anr., (1980) 3 SCC 141, relied
on.
G
1.4. Article 136 does not confer a right of appeal on a party as
such but it confers a wide discretionary power on this Court to
interfere in suitable cases. The discretionary dimension is considerable
but that relates to the power of the Court. Article 136 is a special
~ jurisdiction. It is residuary power; it is extraordinary in its amplitude, H
20 SUPREME COURT REPORTS (2003] SUPP. 4 S.C.R.

A its limits, when it chases injustice, is the sky itself. This Court
functionally fulfils itself by reaching out to injustice wherever it is and
this power is largely derived in the common run of cases from Article
136. There cannot be even a shadow of doubt that there is a procedure
necessarily implicit in the power vested in this Court. The founding
B fathers unarguably intended in the very terms of Article 136 that it
shall be exercised by the judges of the highest Court of the land with
scrupulous adherence to settled judicial principles, well established by
precedents in our jurisprudence. Judicial discretion is canalized
authority not arbitrary eccentricity. 28-B-FJ

·C 1.5. It is manifest t~at Article 136 is of composite structure, is
power-cum-procedure- power in that it vestsjurisdiction in this Court
and procedure in that it spells a mode of hearing. It obligates the
exercise of judicial discretion and the mode of hearing so characteristk
of the court process. (29-AJ
D 2. It is trite that where the eyewitness' account is found credible
and trustworthy, medical opinion pointing to alternative possibilities
is not accepted as conclusive. Witnesses are ti1e eyes and ears of justice.
Hence, the importance and primacy of the quality of the trial process. <'
Eyewitnesses' account would require a careful independent assessm~~t
E and evaluation for their credibility which should not be adversely
prejudged ma!_<ing any .other evidence, including medical evidence, as
the sole touchstone for the test of such credibility. The evidence must
be tested for its inherent consistency and the inherent probability of
the story; consistency with the account of other witnesses held to be
F credit-worthy; consistency with the undisputed facts the 'credit' of the
witnesses; their performance in the witness-box; their power of
observation etc. Then the probative value of such evidence becomes
eligible to be put into the scales for acumulative evaluation. [30-E-H)

3.1. A person has, no doubt, a profound right not to be convicted
G of an offence which is not established by the evidential standard of
proof beyond reasonable doubt. Though this standard is a higher
standard, there is, however, no absolute standard. What degree of
probability amounts to 'proor is an exercise particular to each case.
The concepts of probability, and the degrees of it, cannot obviously be
H expressed in terms of units to be mathematically enumerated as to how
RAMAKANT RAT v. MADAN RAT 21

many of such units constitute proof beyond reasonable doubt. There A
is an unmistakable subjective element in the evaluation of the degrees
of probability and the quantum of proof. Forensic probability must,
in the last analysis, rest on a robust common sense and, ultimately, on
the trained institutions of the judge. While the protection given by the
criminal process to the accused persons is not to be eroded, at the same B
time, uninformed legitimization of trivialities would make a mockery
of administration of criminal justice. 131-G-H, 32-A-BI

The Mathematics ()f Proof II by Glanville Williams Criminal Law
Review, 1979 by Sweet and Maxwell, pp. 340-342, referred to.

3.2. Doubts would be called reasonable if they are free from a zest
c
,. for abstract speculation. Law cannot afford any favourite other than
truth. To constitute reasonable doubt, it must be free from an over
emotional response. Doubts must be actual and substantial doubts as
to the guilt of the accused persons arising from the evidence, or from D
the lack of it, as opposed to mere vague apprehensions. A reasonable
doubt is not an imaginary, trivial or a merely possible doubt; but a
fair doubt based upon reason and common-sense. It must grow out of
the evidence in the case. [31-E-B)

State of U.P. v. Krishna Gopal and Anr., AIR (1988) SC 2154 and E
Gurcharan Singh and Anr. v. State of Punjab, AIR (1963) SC 34, referred
to.

4.1. Arguments are not substitutes for reasoning. More so when the .
appellate court upsets conclusions oflower court. A party is not permitted "
to say that the arguments are what the Court intended to accept or to F
convey. When the appellate court concurs with the views of the trial
court the necessity for elaborately dealing with various aspects may not
always be necessary. But when a view contrary to that of the lower court
is expressed, it is imperative that reasons therefore should be clearly
indicated. There is no scope for any departure from this basic G
requirement. Therefore, the plea of the accused-that even though the
judgment of the High Court is not very elaborately reasoned, yet it can
be supplemented by arguments is a fallacious one. (29-C-E]

4.2. High Court did not correctly appreciate the facts. It proceeded
on the basis as if there was only one gunshot. In fact the evidence on H
22 SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.
•
A record clearly shows that there were two gunshots and only one of
them was a fatal one. High Court's presumptuous conclusion that
eyewitnesses-PW 2 and 5 could not probably have come from their
houses since there was only one gunshot as such their evidence is
brushed aside, suffer from vulnerability. High Court also proce'eded
B as if the change in timing indicated in the FIR was subsequently done
without any material to support its conclusions. Also High Court erred
in concluding that there was variance between the evidence of PW3 -
doctor who examined the deceased immediately and the doctor who
conducted postmortem since it overlooked the explanation offered by
PW-3. Furthermore, much emphasis has been laid about the nature of
C injury. The hypothetical answers given by the doctors cannot corrode
credibility of eyewitnesses. Significantly, no question was put to PWs
3 and 4 as to the position from where the accused could have made
the gunshot. (29-F-H, 30-A-E]

4.3. In view of the unsatisfactory nature of disposal of the appeal
D and the inherent improbabilites and incongruities in the conclusions,
the unreasoned impugned judgment of the High Court warrants
reversal. Order of conviction of accused under Section 302 IPC and
conviction of other accused under section 440 IPC along with the main
accused by trial court is upheld. (32-C-E]
E
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos.
2032-33 of 1996.

From the Judgment and Order dated 16.4.1996 of the ~llahabad High
F Court in Criminal Appeal No. 1535 and ·Govt. Appeal No. 2165 of 1995.
WITH
.. ,
Criminal Appeal Nos. 611-612 of 1997.

G Ajai Bhalla, Rahul Agarwal, Ms. Abha R. Sharma, C.D. Singh,
Pramod Swarup and A.S. Pundir (N.P.) for the Appellant.

S.B. Sanyal, Ashok Kumar Singh, Ms. Punam Kumari and S. Biswajit
for the Respondents.

H The Judgment of the Court was delivered by
RAMAKANT RAJ v. MADAN RAJ [PASAYAT, J.] 23

ARIJIT PASAYAT, J.: One Jairam (hereinafter referred to as the A
'deceased') was in his early teens when he Jost his life. in an unfortunate
dispute where his relatives were the warring patties. There were originally
4 accused persons namely, Madan Rai (A-1 ), Rasbehari (A-2), Sachidanand
Rai (A-3) and Janardan Rai (A-4). Accused-Madan Rai is the father of
Sachidanand and Rasbehari. Accused-Madan Rai was charged for B
commission of offence punishable under Section 302 of the Indian Penal
Code, 1860 (in short the 'IPC') for committing the murder_ of deceased and
other three were charged by application of Section 302 read with Section
34 of IPC. All the four accused persons were also charged in terms of
Section 440 !PC for committing mischief having made preparation to cause C
hurt.

The date of occurrence is 11.5.1984. The dispute arose over fixing
a door by Ramakant (appellant in Crl.A.Nos.2032-33/96). By infliction of ,
a gunshot injury the deceased breathed his last on 12.5.1984. According D
to Siyaram (PW- I) the informant, the incident which took life of the
deceased was the result of long-standing dispute over properties. There was
a private partition between the deceased's father and his offsprings and
accused-Madan Rai a few years before the occurrence. Madan Rai wanted
to take northern room out of the rooms in which catties were tethered and
which was falling to share of Siyaram, the informant. Though the door of E
this room had been removed earlier, the informant wanted to close the door
by constructing a mud wall. On the date of occurrence at about 6.30 p.m.
the accused-Madan Rai came with his licensed gun to the spot of
occurrence with his sons Sachidanand, Rasbehari and Janardan. Three of
> them were armed with Jathis. They started demolishing the walls. The F
present appellant-Ramakant Rai and Siyaram and deceased requested them
not to do so. Madan Rai took out his gun and fired one shot. Sound of such
gun fire attracted notice of many including Bashisht Pandey (PW2),
Bhimnath Rai (PW5) and many other villagers who came to his house,
particularly, to the room to find out what has happened. The informant, G
the deceased and others came to the room where informant's catties were
tethered. Accqsed-Madan Rai climbed on the roof to the western corner
of the house with his gun. Deceased was at the door of the room which
was towards north-west of his house. Madan Rai fired one gun shot which
resulted in injuries on the face of the deceased who fell down. According H
SUPREME COURT REPORTS (2003] SUPP. 4 S.C.R.
24
A to the informant the ghastly incident was witnessed by Bashisht Pandey
•
(PW2), Bhimnath Rai (PW5) and the neighbourers. As the condition of the
deceased deteriorated, he was taken in a tractor to the hospital at
Mohammadbad, information was lodged at the police station, and
investigation was undertaken. On completion of the investigation, charge
B sheet was placed.
Considering the evidence on record the Trial Court found accused-
Madan Rai guilty and sentenced him to imprisonment for life for_ the_:,
offence relatable to under Section 302 IPC and for the offence punishable
under Section 440 IPC imprisonment for term of two years with a fine of
C Rs. 5QO was imposed. Other three accused were acquitted of charges under
Section 302 read with Section 34 IPC. However, they were held guilty
in relation to Section 440 IPC. The convicted accused persons filed an
appeal before the Allahabad High Court which by the impugned .
judgment found the prosecution version to be wanting incredibility and
D adequacy and. directed acquittal. State's appeal against acquittal of three
was rejected.

According to the High Court, there was manipulation so far as the
time of occurrence in the FIR is concerned. Originally, the same appears.
E to have been written at 7.30 p.m. and subsequently corrected to 6.30 p.m.,
obviously, with a vi~w to make visibility and identification possible. There
was no motive to kill the young boy, as the accepted position seemed to.
be that notwithstanding the difference there was no sufficient reason as to
why the innocent boy should be killed. It was also concluded that since
F there was only one gunshot, the question of so-called eyewitnesses rushing
to the spot on hearing the· sound appeared incredible. The distan'ce from
which the bullet was fired appeared to be differently stated and there was
apparent contradiction in the evidence of doctor who conducted the post
mortem and the doctor who examined· the deceased immediately after he'
had suffered the injuries. While Dr. Chander Bhan Tripathi (PW-4) who
G conducted the post-mortem examination indicated the distance to be
greater, doctor (PW-3) who examined the deceased noticed some blackening
and tattooing which indicated that the gun shot was fired from a very close
range. After making casual reference to the evidence it was concluded that
on the overall appreciation of evidence contradictory statement of affairs
H about the injuries and the ocular testimonies, time oflodging ofFIR throws
RAMAKANT RAI v. MADAN RAI [PASAYAT, J.] 25

grave doubt in the prosecution case. It was, therefore, concluded that place A
of occurrence as said to have taken place and stated in Court is not correct
version of the incident and the prosecution has not come with clean and
correct case. With these findings, the judgment of conviction and sentence
was set aside and one of acquittal was put in its place.

The f;ther of the deceased, Ramakant Rai has filed Criminal Appeals B
Nos. 2032-33196. The State of Uttar Pradesh has filed Criminal Appeal
Nos. 611-612/1997 restricting the challenge to the acquittal of Rasbehari,
Sachidanand and Janardan but there is no challenge to the acquittal of
Madan Rai, the prime accused according to the prosecution.
c'
Learned counsel for the appellant Ramakant Rai submitted that the
conclusions of the High Court are without any basis and the judgtpent is
practically un-reasoned and conclusions cannot be substitute for reasons.
Referring to the number of shots it is submitted that the evidence of the
witnesses clearly spoke of two gunshots. This was also noticed by the trial D
· .Court. Unfortunately, the High Court proceeded on the presumption as if '
there was only one gunshot. In reality there was one gunshot, which hit
the deceased. But the clear and cogent evidence was to the effect that one
shot was fired first and after some time the second shot was fired which
proved to be fatal. The High Court has attached unnecessary importance
to the correction made in the FIR about the time of occurrence. There was E
no material and no finding has been recorded that initially some timing was
given which was subsequ·ently changed. It is not the case of the defence
that at first 7.30 p.m. which was written in the FIR was subsequently
changed to 6.30 p.m. in another document. As has been explained by the
informant the correction was made before the first FIR was handed over. F
To say that the timing was changed after deliberation would not be a proper
approach. According to the informant by tremor of hand it was so written
and immediately corrected and to discard the prosecution case on the
conjectures and surmises that the timing was changed after deliberation is
indefensible. Even if it is conceded that there was a correction made that
•,
was obviously made before the FIR was handed over and mere correction
G
cannot be viewed with suspicion as has been done by the High Court.

Dr. Sudhakar Dube (PW-3) has clarified as to why he had stated about
blackening. The evidence was to the effect that when he examined the
injured there was no electric light and he had to make the examination with H'
26 SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.
A the help of lantern and, therefore, the confusion arose. In view of this
specific clarification, it was not appropriate for the High Court to conclude
that the post mortem report was to be discarded. The trial Court had dealt
with such pleas of the accused persons elaborately and had indicated the
reasons as to why they were not acceptable. The High Court without even
B discussing the evidence elaborately concluded to the contrary. Evidence of
PWs 2 and 5 who are· independent witnesses has been discarded even
without analyzing of their evidence.

In response, learned counsel for the acquitted accused persons
submitted that the special leave petition at the instance of the father of the
C deceased was not competent. Though he claimed to be eyewitness, he was
not examined by the prosecution. The reasoning indicated by the Trial
Court that he may have shown compassion to his close relative having
lost the son is contradicted by the very fact that he has chosen to file Special
leave petition.
D
With reference to evidence of doctors it was submitted that nature of
gunshots wounds shows that the firing was from a close-range. Had the
situation. been otherwise, the injuries could not have been of oval shape,
when the prosecution version is that the accused was firing from a height.
The nature of the injuries sustained clearly rule out any gun being fired
E by the accused Madan Rai. Neither any gun nor any bullet was produced .,
which dents the prosecution version irretrievably. The absence of ballistic
expert's report corrodes credibility of prosecution version.

Considering the distance from which PWs 2 and 5 claimed to have
F come, it is highly improbable that they would have seen the occurrence
as claimed. The timing of incident was first correctly reflected and
probably in the course of writing down the first FIR it was noticed that
visibility would be poor and identification improbable and that is why the
change was made. Even if it was done before the report was lodged it
G throws great doubt abo1.1t the correct presentation of the factual scenario.
Though the High Court has not spelt out the reasons to buttress the
conclusions that is not fatal to the ultimate conclusions as the material on
record would justify the conclusions and the correctness thereof.

Learned counsel for the State of U.P. submitted_ that though the State
H has not specifically challenged the acquittal of Madan Rai, on a bare
RAM AKA NT RAJ v. MADAN RAJ [PASA YAT, J.] 27

reading of the High Court's judgment it is clear that the same cannot be A
maintained. Additionally, it is submitted that both the trial Court and the
High Court have erroneously concluded that Section 440 IPC was not made
out against ac.cused 2, 3 and 4.

A doubt has been raised about the competence of a private party as B
distinguished from the State, to invoke the jurisdiction of this Court under
Article 136 of the Constitution of India, 1950 (in short the 'Constitution')
against a judgment of acquittal by the High Court. We do not see any
substance in the doubt. Appellate power vested in this Court under Article
136 of the Constitution is not to be confused with ordinary appellate power
exercised by appellate courts and appellate tribunals under specific statutes. C
It is a plenary power, 'exercisable outside the purview of ordinary law' to
meet the pressing demands of justice (See Durga Shank.ar Mehta v. Thakur
Raghuraj Singh, AIR (1954) SC 520. Article 136 of the Constitution
neither confers on anyone the right to invoke the jurisdiction of this Court
nor inhibits anyone from invoking the Court's jurisdiction. The power is D
vested in this Court but the right to invoke the Court's jurisdiction is vested
in no one. The exercise of the power of this' Court is not circumscribed
by any limitation as to who may invoke it. Where a judgment of acquittal
by the High Court has led to a serio~s mE{carriage of justice this Court
cannot refrain from doing its duty and abstain from interfering on the E
ground that a private party and not the State has invoked the Court's
jurisdiction. We do not have slightest doubt that we can entertain appeals
against judgments of acquittal by th~ High Court at the instance of
interested private parties also. The circumstance that the Criminal Procedure
Code, 1973 (in short the "Code") does not provide for an appeal to the High
Court against an order of acquittal by a subordinate Court, at the instance F
of a private party, has no relevance to the question of the power of this
Court under Article 136. We may mention that in Mohan Lal v. Ajit Singh,
(1978) 3 SCC 279 this Court interfered with a judgment of acquittal by
the High Court at the instance of a private party. An apprehension was
expressed that if appeals against judgments of acquittal at the instance of G
private parties are permitted there may be a flood of appeals. We do not
share the apprehension. Appeals under Article 136 of the Constitution are
entertained by special leave granted by this Court, whether it is the State
or a private party that invokes the jurisdiction of this C(wrt, and special
leave is not granted as a matter of course but only for good and sufficient H
28
•. ! f •' I i
Sl:JPREMB COURT REPORTS [2003] SUPP. 4 S.C.R.
} 'I i. .'!; ! ! ' . . . : •.J • ' 4. ~1 I~ 11 i . '•
•
A reasons, well.,,,.·-J,
• 1·-~1
established
.,·' •
....
by the practiCe .of this Court.
~-J "* ' ~ "-'~-~_:}h.i( . .'I _,:.:,• \~:"-, .,, 11

,,·J" I""-. ·~·1 .• ~., :.= ~-·("'q· .. ~J!J.U,i1-{Jt .!.,I.~.-~.: 11) ..i;' f"· :,.; f _.f·,. ;. ;j ·~ ;
Aoove was the view expressed by this Court in Arunachalam v. P.S.R.
$,a,1~'!.~?'?'!.~hflm C!,'!,~,1:r!r., ,Ll i7.?l ..,2, s.~c..n9., T.he/yiew, has .again, been
fl reiterated.
.. -'
1!1
by the
I
hV
ConstitutionBi::nch :inl PSR.Sadhanantham
~.1 .• .1 ...... •
~I. I • ... "· ·
i .Ju-•
v. Arunachalam
._,.;_., J , ..... , ·~---~·-~

B ':111.~,~.m;i~1J~,~~g1 Jii~Scr.;JN;-.L)., .. ,};. · :. ··"\ .J. "' r.. ..... , ·;_.:.i•j · ·, · ·

Jh''' t -~1 u ~:1 ~,.,._,.,,.,/ . >• -:d h;~i1 t~udiL.t'! :1·.;.._ ~.. I l'l>J ,.1;.'•· .. 1 ;,~v·.·.---:-1 '..Jtr....~ ·!

,. It is to.be seen whether the broad spectrum spread out of,Art_icle'. 136
fills the bill from the point of view of "procedure established by Jaw". In
) ~"p!eJ~. !~nn1.-,~~ticJ~ i !3§1 ~Q~~ ._n,ot.;co11fer.-a right of, appeal on a party as
C s1~f1~1~ujJ~ 1~,'r~fS%,a J~J.4.r ,-djs,9r~ti..o.nJ~TY1.P.O..\\;'.er.. Pf1i:this t.Court 1to dnterfere
in .suit~ble case~ .• ;The. disc~etionary dimension11is rconsrderable,but, that·
relates to the power of the ~9urt~/\rticle 136 is, a special jurisdiction. It
is residuary power; it is extra~ofd.inary in its amplitude, its limits, when it
chases injustice, is the sky i!~rJf. _Th~s c;:ot~rtJunctionally fulfils itself by
reaching out to injustice
.. wherever it. is and this
. .
power
. .
is largely derived. ~ -"

D in the common run of cases Jr9,m .A~icle 136. ls it. merely a power in the
court to be exercised in any,•·'"inanner
" .
it fancies?
. ... Is there no procedural
limitation in the manner of e~s,rc,i~e~:and th.e oc~~sion for exe_rcise? Is there
"~o duty to act fairly while ~earing a .case .un_der Article 136, either in the
'ma.tter of grant of le~ve or, a~er. such grant,. i~ .the final dispo~al of_ the
E appeal? There cannot be ev~r: ~ s.hado\y ·of ~oubt_ that :~here is a procedure
necessarily implicit in the power vested in this Court. The founding fathers
unargu~bly intended in the very terms of Article 136 that it shall be
exercised by the judges of the highest Court of the land with scrupulous
adheren'~e to settled judicial p~~n~iples, well established by precedents in
F our jurisprudence. Judicial d'~f,~e!ion. is .canalized authority not arbitrary
eccentricity. ~ardozo, with ~Jegant ac,curacy, has observed:

"The judge, evr.!1. w~en he i,s free, is still not wholly free. He
•is not to innovate at,,ple~sure.. He is not a knight-errant roaming
at will in pursuit of .~is own ideal. of beauty or of goodness. He·
G is to draw his inspir~~ion frop consecrated principles. He is not
to yield to spasmodic sentiment, . to vague and unregulated
benevolence. He is t~'exerci;e a dlscretion informed by tradition,
l .;: '
methodized by analogy, disciplined _by system, and subordinated
to 'the primordial ~ecessity of order in the social life'. Wide
.H enough in all conscience is the field of discretion that remains" .
RAMAKANT RAI v. MADAN RAI [PASAYA L J.) 29
It is manifest that Article l ~6 is of composite structure, is power-cum- A
procedure - power in that it vests jurisdiction in this Cou!1 and procedure
in that it spells a mode of hearing. It obligates the exercise of judicial
discretion and the mode of hearing so characteristic of the court process.

Coming to the appeals before us we 'find' that State has not challenged B
the acquittal of acci1sed·Madan Rai.' That'bfrng'th~ positior(and iri vie\v
of what has been stated in Arunachalam 's case' (supra) and SOdh'ananthani"s (I
case (supra) the special leave petition filed by Ramakant Rai is clearly
maintainable. ' ;,, - ' ' ' rh ,. ~ ., " ' '
I -i' ~I ~ ,. t r !j ~ I
' ' r ' ' I • f .

• IIt was submittedthat"when tWo views 'c\re·po'ssible and the High Court c
with well-ehiselled conclusions has accepted·aview it'would'not'be propet J
to exercise'j'urisdiction under 'Article 136 'of tneibiri~titutioii.' At~illl~nis'
are not substitutes for reasoning. More so when the appellate court upsets
conclusions of lower court. A party is not permitted to say that the
arguments are what the Court intended to accept or to convey. When the D
·appellate Court concurs with the views of the Trial Court the necessity for
elaborately dealing with various aspects may not always be necessary. But
when a view contrary to that of the lower court is expressed, it is imperative
that reasons therefor should be clearly indicated. There is no scope for any
departure from this basic requirement. Therefore, the plea of the accused- E
respondents that even though the judgment Of the High Court is not very
elaborately reasoned, yet it can be supplemented by arguments is a
fallacious one.

It is also noticed that the High Court did not correctly appreciate the F
facts. First and foremost it proceeded on the basis as if there was only one
gunshot. In fact the evidence on record clearly shows that there were two
gunshots and only one of them was a fatal one.

The evidence of PWs 2 and 5 have been lightly brushed aside with
presumptuous conclusion that they could not probably have come from G
their houses and since there was only one gunshot. On that score alone the
High Court's conclusions suffer from vulnerability. The High Court also
proceeded as ifthe change in timing indicated in the FIR was subsequently
done. There is no material to support this conclusion. Here again, High
Court acted without any material to support its conclusions. The Investigating H
30 SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.

A officer (PW-6) was also not even asked as to when the change was made.
On the contrary, reading of PW-1 's evidence shows that it was done before
the report was handed over; to the police.

. The High Court also came to erroneous conclusion that there was
B variance between the evidence of PWs 3 and 4. It clearly overlooked the
explanation offered by PW-3 as to why he had mentioned about blackening.
He has stated that ex'aminati6n at the first instance was done in inadequate
light with the help of lantern. Therefore, he accepted that there was a
possibility of mistake in what he recorded about the blackening. When one
C compares his evidence with thi\t of PW-4 the position is clear. PW-4 has
not really noticed any blackening or tattooing. Without considering the
• ! . . .
evidence of PW-3 in its proper perspective the High Court should not have
abruptly concluded that ther~
.... .w~s a·.· differef1:ce
. in, the evidence of PWs 3
and 4 and accused is to get ~he. benefi! therefor. In fact a combined reading
D of the evidence of PWs 3 hand ,.
4 shows
. .
that PW-4's . .
version was more
authentic and acceptable.

Much emphasis has 'b~~n t;11
laid
•.
about the nature of injury. The
hypothetical answers given.1 by the doctors
. • .
cann.ot
.
corrode
.
credibility of
E t!yewitne_sses. Significantly,.no g~estion was put to PWs 3 and 4 as to the
position from where the accused could have made the gunshot.
I

It is trite that where the eyewitnesses' ac.count is found credible and
trustworthy, medical opinion pointing to alternative possibilities is not
accepted as conclusive. Witnesses, as Bantham said, are the eyes and ears
F of justice. Hence the importance and primacy of· the quality of the trial
process. Eyewitnesses' account would require a careful independent
assessment and evaluation for their credibility which should not be
adversely prejudged making any other evidence, including medical evidence,
as the sole touchstone for the test of such credibility. The evidence must
G be tested for its inherent consistency and the inherent probability of the
story; consistency with the account of other witnesses held to be credit-
worthy; consistency with the undisputed facts the 'credit' of the witnesses;
their perfonnance in the witness-box; their power of observation etc. Then
the probative value of such evidence becomes eligible to be put into the
H scales for a cumulative evaluation.
RAMAKANTRAI v. MADAN RAJ [PASAYAT, J.] 31

' A person has, no doubt, a profound right not to be convicted of an A
offence which is not established by the evidential standard of proof beyond
reasonable doubt. Though this standard is a higher standard, there is,
however, no absolute standard. What degree of probability amounts to
'proof is an exercise particular to each case. Referring to of probability
amounts to 'proof is an exercise the inter-dependence of evidence and the B
confirmation of one piece of evidence by another a learned author says:
(See "The Mathematics of Proof If': Glanville Williams: Criminal Law
Review, 1979, by Sweet and Maxwell, p. 340 (342).

"The simple multiplication rule does not apply ifthe separate
pieces of evidence are dependent. Two events are dependent C
whep they tend to occur together, and.the evidence of such events
may also be said to be dependent. In a criminal case, different
.
pieces of evidence directed to establishing that the defendant did
the prohibit act with the speCified state of mind are generally
dependent. A juror may feel doubt whether to credit an alleged D
confession, and doubt whether to infer guilt from the fact that the
defendant fled from justice. But since it is generally guilty rather
than innocent people who make confessions, and guilty rather
than innocent people who run away, the two doubts are not to be
multiplied together. The one piece of evidence may confirm the E,
other''.

Doubts would be called reasonable if they are free from a zest for
abstract speculation. Law cannot afford any favourite other than truth. To
constitute reasonable doubt, it must be free from an over emotional
response. Doubts must be actual and substantial doubts as to the guilt of F
the accused persons arising from the evidence, or from the lack of it, as
opposed to mere vague apprehensions. A reasonable doubt is not an
imaginary, trivial or a merely possible doubt; but a fair doubt based upon
reason and common-sense. It must grow out of the evidence in the case.

The concepts of probability, and the degrees of it, cannot obviously G
be expressed in terms of units to be mathematically enumerated as to how
many of such units constitute proof beyond reasonable doµbt. There is an
unmistakable subjective element in the evaluation of the degrees of
probability and the quantum of proof. Forensic probability must, in the
last analysis, rest on a robust common sense and, ultimately, on the trained H
32 SUPREME COURT REPORTS [:2003] SUPP. 4 S.C.R.
A intuitions of the judge. While the protection given by the criminal process
to the accused persons is not to be eroded, at the same time, uninformed
legitimization of trivialities would make a mockery of administration of
criminal justice. This position was illuminatingly stated by Venkatachalia,
J(as His Lordship then was) in State of U.P. v. Krishna Gopal and Anr., ..J.
B AIR (1988) SC 2154.

As was noted by this Court in Gurcharan Singh and Anr. v. State of
Punjab, AIR ( 1963) SC 340 non-examination of the ballistic report does
not render direct evidence improbable.

C In view of the unsatisfactory nature of disposal of the appeal and the
inherent improbabilities and incongruities in the conclusions, the unreasoned
impugned judgment of the High Court warrants reversal. So far as accused-
Madan Lal is concerned, his conviction under Section 302 IPC as done by
the .Trial Court is restored. So far as acquittal .of other accused persons
D under Section 302 read with Section 34 is concerned, the Trial Court had
elaborately dealt with the evidence to extend benefit of doubt to them. The
High Court did not interfere in the State's appeal so far as their acquittal
is concerned. Nothing could be shown to us as to why the conclusions are
to be reversed and in what way they are fallacious.
1
r
i

E Coming to the appeal filed by the State and the challenge ofRamakant >

Rai to the acquittal of accused respondents Sachidanand, Rasbehari and r-
Janardan under Section 440 IPC, for which two years imprisonment was
imposed, is concerned the High Court's judgment is reversed. The
respondents Sachidanand, Rasbehari and Janardan were rightly convicted
F by the Trial Court under Section 440 IPC along with accused Madan Rai. I-
The sentence of two years rigorous imprisonment and a fine of Rs.500 as
imposed can be in no way tenned to be excessive to warrant a different
sentence.

In the ultimate result, the judgment of the Trial Court is restored and
G that of the High Court is set aside. The respondents shall surrender to
custody to serve the remainder of the sentence, if any, to be served.

The appeals are allowed.

N.J. Appeals allowed.