Holding

The High Court’s acquittal was set aside because the eyewitness identification under torchlight was reliable and the omission of the gaslight in the site plan was not fatal, allowing the trial court’s conviction to stand.

Summary

The State prosecuted four accused for a dacoity during which the deceased was murdered, alleging that the accused were identified at the scene by the victim (PW‑I) and other witnesses using torchlight and a gaslight. The trial court convicted them under Sections 302, 149, 148, 323 and 395 of the IPC and sentenced them to life imprisonment. The High Court acquitted the accused, holding that the victim's testimony was unreliable, the widow and daughter did not corroborate the prosecution, and the omission of the gaslight’s location in the site plan rendered the identification doubtful. The Supreme Court held that the High Court had erred in discarding the eyewitness identification, that the presence of torchlight sufficed for reliable identification, and that a site plan omission is not a fatal flaw. It further clarified that an appellate court may interfere with an acquittal when the judgment is unreasonable, and restored the trial court’s conviction, directing the accused to surrender.

Issues considered

The reliability of eyewitness identification made under torchlight and gaslight despite the site plan not indicating the gaslight location.
Whether the lack of support from the deceased's widow and daughter justifies discarding other eyewitness testimony.
The scope of appellate jurisdiction to review evidence on which an acquittal is based.
The evidentiary value of a site plan in identification of accused persons.
The applicability of the presumption of innocence in interfering with an acquittal.

Legislation cited

Code of Criminal Procedure, 1973s. 162
Constitution of Indias. Article 136
Indian Penal Code, 1860s. 148, s. 149, s. 302, s. 323, s. 395

Subjects

dacoitymurdereyewitness identificationtorchlightgaslightsite planappellate reviewacquittalpresumption of innocenceIPC sections 302 149 148 323 395

Judgment

STATE OF U.P. A
V.

BABU ANJJ ORS.

SEPTEMBER 24, 2003

[DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ.] B

Criminal Law :

Evidence-Appreciation of-Dacoity and murder-Accused identified
at the spot itself with the help of torchlight and gaslight-Location of the C
gaslight not indicated in the site plan-Evidence ofeye witnesses supporting
prosecution case-Some of the witnesses not supporting the prosecution
version though closely related to the deceased-Conviction by trial court-
Acquittal by High Court-Tenability of-Held, merely because the location
of the gaslight was not mentioned in the sketch, that cannot.be a suspicious D
circumstance-Accused persons being known to the witnesses, identification
was possible even with minimal light-Witnesses closely related to the
deceased not supporting the prosecution version, cannot per se be a
ground to discard the evidence of other witnesses-Judgment of the High
Court based on surmises and conjectures, set aside and that of trial court
restored-Penal Code, 1860-Sections 3951149 and 3021149. E
Appeal against acquittal-Interference by appellate court-Principles
of, discussed-Constitution of India, · 1950-Article 136.

A dacoity was committed in the house of PWI by four accused F
along with 8-9 other persons during which deceased was murdered.
The informant was sleeping near the main gate of the house and was
awakened by cries of the deceased and entered the house. One of the
accused shot at PWI resulting in gunshot wounds to him. Thereafter,
they decamped with certain properties. The four accused were identified G
by PWI and other witnesses at the spot itself.

On completion of the investigation, charge sheet was placed and
accused persons were sent for trial. Nine witnesses were examined by
the prosecution. Except for PWt and PW3, all other winesses who
during investigation claimed themselves to be eyewitnesses, resiled H
1079
1080 SUPREME COURT REPORTS [2003) SUPP. 3 S.C.R.

A from their statement while deposing in court. All the four accused were
sentenced by the Trial Court to undergo imprisonment for life for the
offence punishable under Section 302 read with Section 149 l.P.C. In
appeal by the accused persons, the High Court directed their acquittal
on the ground that the evidence of PWI could not be relied upon; that
B widow and daughter of the deceased had not supported the prosecution
case; that there was no material to show as to how the prosecution
witness could identify the accused person, as there was great doubt
about the source of light; that in the site plan, the place where the
gasllight was found had not been indicated though same was stated by
C prosecution to be the source of light. Hence, the present appeal by
State.

On behalf of the appellant-state, it was contended that the High
Court has proceeded on mere surmises and conjectures and has not
considered the evidence on record; that accused persons are known to
D the witnesses and, therefore, even with minimal light identification was
possible.

Allowing the appeals, the Court

E HELD : I.I. A bare perusal of the High Court's judgment goes
to show that its approach was rather casual and no effort was made
to analyse the evidence. The High Court did not examine the evidence
of PWs I and 3 with the required care. The r~11son indicated to discard
PWs I and 3 is to the effect that PWs 2 and 9, though they were closely
F related to the deceased, did not support the prosecution version. That
cannot per se be a ground to discard the evidence of other witnesses,
one of whom was also a relative, and the other an independent witness.
The conclusion arrived at by High Court is without reason. Since the
High Court has acted on surmises and conjectures, the judgment is
indefensible. (1084-A, B, 1085-A, B(
G
1.2. The site plan is not substantive evidence. It is to be noted that
the identification by torch was clearly indicated. Merely because the
location of the gaslight was not mentioned in the sketch, that cannot
be a suspicious circumstance since the first information report was
H lodged without unreasonable delay. One important aspect which
ST ATE v. BABU 1081

cannot be lost sight of and which is of relevance and great significance A
is that the accused persons are known to the witnesses. When the
persons are known, identification is possible from the manner of
speech, manner of walking and gesticulating and special features of a
person like the physical attributes. 11084-B, F, G, HI
B
Shakti Patra and Anr. v. State of West Bengal, AIR (1981) SC 1217;

.. Aher Pit ha Vaishi and Ors. v. State of Gujarat, AIR (1983) SC 599 and
George and Ors. v. State of Kera/a and Anr., 1199814 SCC 605, referred
to.

2. There is no embrgo on the appellate court reviewing the C
evidence upon which an order of acquittal is based. Generally, the
order ofacquittal shall not be interfered with because the presumption
of innocence of the accused is further strengthened by acquittal. In a
case where admissible evidence is ignored, a· duty is cast upon the
appellate court to re-appreciate the evidence even where the accused D
has been acquitted, for the purpose of ascertaining as to whether any
of the accused committed any offence or not. The principle to be
.. followed by appellate court considering the appeal against the judgment
of acquittal is to interfere only when there are compelling and
substantial reasons for doing so. If the impugned judgment is clearly E
unreasonable, it is a compelling reason for interference. [1085-D, F-Hl

State of Punjab v. Kamai/ Singh, (2003} AIR SCW 4065; Bhagwan
Singh and Ors. v. State of Madhya Pradesh, JT (2002) 3 SC 387; Shivaji
Sahabrao Bobade and Anr. v. State of Maharashtra, (1973) 2 SCC 793;
Ramesh Babula/ Doshi v. State ofGujarat, [1996) 9 sec 225 and Jaswant F
Singh v. State of Haryana, JT (2000) 4 SC 114, relied on.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos.
1638-1639 of 1996.
G
From the Judgment and Order dated 21.3 95 of the Allahabad High
Court in Crl. A. Nos. 2805, 2810 of 1979.

Pramod Swarup, C.D. Singh and Praveen Swarup (NP} for the
Appellant. H
1082 SUPREME COURT REPORTS (2003) SUPP. 3 S.C.R.

A Sakesh Kumar and Abhijit P. Medh for the Respondents.

The Judgment of the Court was delivered by

ARIJJT PASAYAT, J. : The four respondents were accused of
B having caused homicidal death of Munshi Lal (hereinafter referred to as
-
'the deceased'), committing dacoity and attempting to commit murder of
Ramai (PW-I). Though the IV Additional Sessions Judge found them
guilty of several offences and convicted and sentenced them, the High ...
Court found them innocent by the impugned judgment and directed their
acquittal.
c
Factual senario according to the prosecution is as follows :

Around mid-night of 9.5. I 978, dacoity was committed in the house
of P.W.l, during which deceased was murdered. Along with accused
D persons, several others numbering 8-9 had forced into the house of Ramai.
Accused Suraj Pal belongs to the same village as that of the deceased and
PW I. The others belong to the neighbouring village i.e. Gangupura. Four
of them were identified by Ramai and other witnesses at the spot itself.
...
Though dacoity was committed, the primary object was to commit murder
E of the deceased since he had once objected the marriage of Tarawati, the
sister of accused-Suraj Pal with accused-Babu and this had caused bad
blood between the two. Accused-Babu had even lodged the First Information
Report against deceased charging him with theft soon after his marriage
with Tarawati which took place despite opposition by the deceased.
F Accused-Babu and Lala Ram inflicted injuries with their respective
firearms on the deceased and accused-Babu stabbed the deceased as a result
of which injuries were sustained by him. The informant was sleeping near
the main gate of the house and was awakened by cries of the deceased and
entered the house. Accused-Suraj Pal shot at Ramai with the intention of
causing his death. This resulted in gunshot wounds to Ramai who was also
G beaten by other victims. Thereafter they decamped with certain properties.
Written report (Ex. Ka. I) was lodged by Ramai regarding the occurrence,
at 9.35 a.m. on 10.5.78. He was sent to the Public Health Center for medical
examination and the investigating offJ~er reached the village. He found the
dead body of the deceased and sent it for post-mortem examination which
H was conducted at 3.00 p.m. on .11.5.1978.
STATEv. BABU[PASAYAT,J.] 1083

On completion of the investigation, charge sheet was placed and A
accused persons were sent for trial. They pleaded innocence, and false
implication. To further the prosecution version 9 witnesses were examined.
Apart from PW! who claimed to be eyewitness, PW2, PW3, PW4, PWS
and PW9 also claimed to be eyewitnesses. But PWs 2, 4, 8 and 9 resiled
from their statement during investigation while deposing in court. The Trial B
Court found the accused-Babu, Suraj Pal and Lala Ram guilty for offences
punishable under Sections 302 read with Section 149, 148, Section 323
read with Section 149, and Section 395 of Indian Penal Code, 1860 (in
short '!PC'). Accused-Natthu was found guilty for offence punishable
under Section 302 read with Section 149, 147, Section 323 read with C
Section 149 and Section 395 !PC. Accused-Suraj was acquitted of charge
relating to the offence punishable under Section 307 !PC. They were
sentenced to undergo .imprisonment for life for the offence punishable
under Section 302 read with Section 149 !PC but no custodial sentence was
imposed for the rest of the offences. The accused persons preferred appeal
before the High Court. By the impugned judgment, the High Court directed D
acquittal. The primary reason for doing so was that the evidence of Ramai
(PW I) could not be relied upon. Widow and daughter of the deceased had
not supported the prosecution case. Additionally, it was observed that there
. was no material to show as to how the prosecution witness could identify
the accused persons, as there was great doubt about the source of light. E
High Court noticed that in the site plan, the place where the gaslight was
found had not been indicated though same was stated by prosecution to
be the source of light.

Learned counsel for the appellant-State submitted that the High Court F
has proceeded on mere surmises and conjectures and has not considered
the evidence on record. It was specifically stated by the witnesses that the
identification was possible because of the torchlight used by the witnesses
and the gaslight. In any event, accused persons are known to the witnesses
and, therefore, even with minimal light identification is possible. The
conclusions were termed to be arbitrary. In response, learned counsel for G
the accused-respondent submitted that the evidence was elaborately scanned
by the High Court and it was noted about the improbability of identifying
the accused persons. Further the prosecution verson is rendered unreliable
particularly when the widow and the daughter did not support the
prosecution version. H
1084 SUPREME COURT REPORTS [2003) SUPP. 3 S.C.R.

A A bare perusal of the High Court's judgment goes to show that its
approach was rather casual and no effort was made to analyse the evidence.
It is to be noted that the High Court did not examine the evidence of PWs
I and 3 with the required care. Great emphasis was laid by the High Court
on the fact that in the site plan place where gaslilght was found had not
·-
B been indicated. The site plan is not substantive evidence. The High Court
seems to have proceeded on the basis that omission to indicate the location
gaslight in the site plan was fatal. This Court in Shakti Patra and Anr. v.
State of West Bengal, AIR (1981) SC 1217 held that where prosecution
witness testified that he had identified the accused in the light of the torch
C held by him, the presence of torch would not be said to be not proved on
the ground that there was no mention of the torch in the FIR or in the
statement of the witness before the police, when there was testimony of
other witnesses that when they reached the spot they found the torch
burning. To similar effect is the conclusion in Aher Pitha Vajshi and Ors.
v. State of Gujarat, AIR (1983) SC 599. It would be proper to take note
D of what was stated by this Court in George and Ors. v. State of Kera/a
and Anr., [I 998) 4 SCC 605 regarding statements contained in an inquest
report. The statements contained in an inquest report, to the extent they
relate to what the Investigating Officer saw and found are admissible but .
any statement made therein on the basis of what he heard from others,
E would be hit by Section 162 of Code of Criminal Procedure, 1973 (in short
'Cr.P.C.' ). The position is no different in case of site plan.

It is to be noted that the identification by torch was clearly indicated.
Merely because the location of the gaslight was not mentioned in
F the sketch, that cannot be a suspicious circumstance since the first
information report was lodged without unreasonable delay, as noticed by
the Trial Court. The High Court has also not disturbed the finding in that
aspect.

G Apart from the mention about the torchlight, one important aspect
which cannot be lost sight of and which is of relevance and great
significance is that the accsed persons are known to the witnesses. When
the persons are known, identification is possible from the manner of
speech, manner of walking and gesticulating and special features of a
H person like the physical attributes.
STATEv. BABU (PASAYAT, J.] 1085
•·
The reason indicated to discard PWs 1 and 3 is to the effect that PWs A
2 and 9, though they were closely related to the deceased, did not support
the prosecution version. That cannot per se be a ground to discard the
evidence of other witnesses, one of whom was also a relative, and the other
'an independent witness. As noted above, the High Court has not discussed
the evidence of PWs I and 3 to point out any vulnerability. The conclusion B
arrived at is without reason. Since the High Court has acted on sunnises
and conjectures, the judgment is indefensible .
.
Learned counsel for the accused persons-respondents submitted that
order under challenge being one of acquittal, it is not a fit case for exercise C
of jurisdiction under Article 136 of the Constitution of India, 1950 (for
short 'the Constitution').

Recently in State of Punjab v. Karna ii Singh, (2003) AIR SCW 4065
it was observed that there is no embargo on the appellate Court reviewing D
the evidence upon which an order of acquittal is based. Generally, the order
of acquittal shall not be interfered with because the presumption of
innocence of the accused is further strengthened by acquittal. The golden
• thread which runs through the web of administration of justice in criminal
cases is that if two view are possible on the evidence adduced in the case, E
one pointing to the guilt of the accused and the other to his innocence, the
view which is favourable to the accused should be adopted. The paramount
consideration of the Court is to ensure that miscarriage of justice is
prevented. A miscarriage of justice which may arise from acquittal of the
guilty is no less than from the conviction of an innocent. In a case where
admissible evidence is ignored, a duty is cast upon the appellate Court to F
re-appreciate the evidence even where the accused has been acquitted, for
the purpose of ascertaining as to whether any of the accused committed
any offence or not . (See Bhagwan Singh and Ors. v. State of Madhya
Pradesh, JT (2002) 3 SC 387. The principle to be followed by appellate
Court considering the appeal again°st the judgment of acquittal is to G
interfere only when there are compelling and substantial reasons for doing
so. If the impugned judgment is clearly unreasonable, it is a compelling
reason for interference. These aspects were highlighted by this Court in
Shivaji Sahabrao Bobade and Anr. v. State of Maharashtra, [ 1973] 2 SCC
793, Ramesh Babula[ Doshi V. State of Gujarat, (1996] 9 sec 225 and H

•
1086 SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A Jaswant Singh v. State of Haryana, JT (2000) 4 SC 114.
In view of the above, the impugned judgment of the High Court,
deserves to be set aside, which we direct. Judgment of the Trial Court is
restored. The appeals are allowed. The accused-respondents who are on
B bail shall surrender to custody to serve the remainder of their sentence.

M.P. Appeals allowed.

.