Supreme Court of India
STATE OF U.P.versusRAM SAJIVAN & ORS.
- Citation
- 2009 INSC 1283
- Decided
- 4 December 2009
- Disposal
- Disposed off
- Bench
- DALVEER BHANDARI
Holding
The Supreme Court restored the conviction of six accused, granted benefit of doubt to twelve, and upheld the acquittal of the remaining respondents, setting aside the High Court's blanket acquittal.
Summary
The State of Uttar Pradesh prosecuted eighteen accused Thakurs for dacoity, abduction, and the murder of seven Harijan victims, of whom only two bodies were recovered and one survivor gave a dying declaration. The trial court convicted all accused under IPC ss.302, 149, 364 and 201, sentencing them to life imprisonment and additional terms. The Allahabad High Court acquitted all accused, relying on the alleged failure of the dying declaration to name the accused, the three‑month delay in the eye‑witness Kallu's statement, and the absence of a complaint copy. On appeal, the Supreme Court held that the High Court had not properly examined the evidence and had not provided substantial and compelling reasons to overturn the trial court’s findings. It restored the conviction of six accused, gave benefit of doubt to twelve, upheld the acquittal of the remaining respondents, and cancelled their bail bonds.
Issues considered
- The propriety of the High Court's acquittal of all accused on the basis of alleged deficiencies in the dying declaration and delayed eye‑witness testimony.
- Whether an appellate court may set aside an acquittal under Sections 378 and 386 CrPC without "substantial and compelling reasons".
- The credibility and corroboration of the surviving eye‑witness (PW‑14) and the constable (PW‑27) against the accused.
- The appropriate extent of conviction, benefit of doubt, and restoration of sentences for the accused.
Legislation cited
- Code of Criminal Procedure, 1973s. 161, s. 378, s. 386
- Indian Penal Code, 1860s. 149, s. 201, s. 302, s. 364
Subjects
caste violencedacoitymurderacquittalappellate reviewdying declarationbenefit of doubtcriminal lawIPCCrPC
Judgment
[2009] 16 (ADDL.) S.C.R. 154
A STATE OF U.P.
v.
RAM SAJIVAN & ORS.
(Criminal appeai No. 686 of 2002)
DECEMBER 04, 2009
B
[DALVEER BHANDARI AND A.K. PATNAIK, JJ.] -
Penal Code, 1860 - ss. 3021149, 364 and 201 -
Commission of dacoity by accused-thakurs, abduction of eight "
C persons of lower caste and thereafter, commission of brutal
murder and bodies thrown in river - One victim survived -
Only two dead bodies found - Conviction of accused for the
said offence - Sentenced to life imprisonment along with
other sentences - Acquittal by High Court - On appeal, held:
D High Court acquitted the accused without analyzing the entire
evidences and assigning cogent reasons - On facts, trial
court's view is the only possible view - Evidence of surviving .,
witness and head constable to the effect that accused
committing the 'Said crime - No doubt regarding participation
E of six accused in the crime, thus, their conviction by trial court
restored, while others given benefit of doubt.
Unfortunately, the centuries old Indian Caste System
still takes its toll from time to time. This case unfolds the
worst kind of atrocities committed by the so called upper-
F caste (Kshatriya or Thakur) against the so called lower- t
caste-Harijan caste in a civilized country. It is absolutely
imperative to abolish the caste system as expeditiously
as possible for the smooth functioning of Rule of Law
and Democracy in our country.
G
In the instant case, accused persons belong to
Thakur caste. On the fateful day, accused persons armed
with weapons committed dacoity in the house of K and
J-belonging to the Harijan caste. Thereafter, accused
H 154
STATE OF U.P. v. RAM SAJIVAN & ORS. 155
abducted K, J, DD, ·SK, SP, T, GR, ON; took them to the A
bank of the river; brutally murdered them and then threw
.... them in river where currents were very strong. K jumped
into the stream of the river and saved his life. J was
recovered from the river in an injured and unconscious
- state. Out of seven persons, bodies of only two persons B
were recovered. J regained consciousness and lodged
the report. Her dying declaration was recorded.
Thereafter, J succumbed to her injuries. The statements
~ of the witnesses were recorded. K-PW-14 was the only
surviving injured eye-witness. Trial court convicted the
accused persons u/s. 302/149 IPC for committing murder
c
and sentenced them to life imprisonment. Accused were
also convicted for committing dacoities and sentenced
to seven years rigorous imprisonment; convicted u/s.
364 IPC for abduction and sentenced to five years of
rigorous imprisonment; and u/s. 201 with four years D
y
rigorous imprisonment. High Court acquitted all the
accused. Hence the present appeal.
Disposing of the appeal, the Court
E
HELD: 1. The scope of the powers of the appellate
court in an appeal is well settled. The powers of the
appellate court in an appeal against acquittal are no less
than in an appeal against conviction. The appellate court
1 may review the evidence in appeals against acquittal u/
F
ss. 378 and 386 CrPC, 1973. Its power of reviewing
.evidence is wide and the appellate court can reappreciate
the entire evidence on record. It can review the trial
court's conclusion with respect to both facts and law. The
accused is presumed to be innocent until proved guilty.
The accused possessed this presumption when he was G
before the trial court. High Court's acquittal bolsters the
presumption that he is innocent. There must also be
substantial and compelling reasons for reversing an
order of acquittal. This Court would be justified in
H
156 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.
A interfering with the judgment of acquittal of High Court
only when there are very substantial and compelling
reasons to discard the High Court decision. [Paras 36 and
49) [178-B; 187-D-H]
2.1. Trial court carefully examined the witnesses. It
8 observed that K-P.W.14 is the eye-witness to the
occurrence and the only surviving person out of 8
-
persons who were abducted from village. It also
observed that there was absolutely no material elicited by
the defence in his cross-examination which may render
C his statement unbelievable. According to the trial court,
the statement of P.W.14 regarding the occurrence appears
to be a true version of the occurrence. The accused
persons and their companions committed multiple
murders of the seven innocent persons of Harijan caste
D in cold blood. It was a ghastly crime committed by them
which can shock the conscience of any person of a
y
civilized society. The trial court found that the
prosecution had succeeded in establishing the charges
against the accused persons. [Paras 26, 27 and 28) [172-
E G; 173-F; 174-D-G]
2.2. The appeal before the High Court was in the
nature of first appeal and the High Court in a case of this
nature was expected to carefully analyze the entire
F evidence and documents on record. High Court termed
the testimony as PW 14 as trustworthy. The findings of
the High Court are not based on proper analysis and
marshalling of the entire evidence on record. The findings
of the High Court are palpably erroneous and
unsustainable. High Court without analyzing the evidence
G and assigning any cogent reason set aside the well
reasoned judgment of the trial court and acquitted all the
respondents. [Paras 29, 30 and 34) [175-B-F; 177-B-C]
2.3. A careful examination of the instant case in a
H proper perspective leads to an entirely different
STATE OF U.P. v. RAM SAJIV.'\1\1 & ORS. 157
/
conclusion. High Court ought to have appreciated the A
mental frame of J wherein she gave a statement which
was construed as a dying declaration. Eight persons who
were abducted and tied with rope and brought to river
Ganges in the midstream and after their murder were
thrown in the river one by one except PW14 who escaped B
because he jumped into the river. In that fear psyche,
naming the appellants would have meant risking her life
and in that state of mind, the omission of mentioning the
names of the appellants is not unnatural and her
testimony cannot be discarded on that count. [Para 31] c
(175-G-H; 176-A-B]
2.4. High Court failed to appreciate the
circumstances in which PW14 survived by jumping into
the river and hiding at certain places. In a genocide and
massacre which was witnessed by him, wherein all his D
seven close relatives including his wife were killed one
after other in his presence and were thrown in the river
Ganga, his escaping the death was a miracle. Hiding and
saving his life from a mighty cruel upper caste group was
a normal human instinct. Any reasonable or prudent E
person would have behaved in the same manner.
Immediately after his escape, he tried to make a complaint
but he did not succeed. Ultimately when he wrote to
politcal leaders perhaps at the intervention of someone,
i
the police seriously investigated the matter and he was F
brought to his village under police protection. The delay
in giving his statement is fully explained and in the facts
and circumstances of the case delay was quite natural.
In a case of this nature, the witnesses turning hostile is
not unusual particularly in a scenario where upper caste G
people have created such a great fear psyche. The
instinct of survival is paramount and the witnesses
cannot be faulted for not supporting the prosecution
version. Even the evidence which is on record
particularly of J and K-PW14 supported by the evidence H
158 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.
A of Head Constable PW27 is sufficient to bring home the
guilt of the accused. The evidence of PW14 and PW27
lead to the only conclusion that the accused were
squarely responsible for committing such a ghastly
crime. [Para 32) [176-C-G]
B
2.5. Reversal of the judgment of the High Court
would mean sentence of life imprisonment for some of
the accused. The entire evidence and documents on
record is examined and re-examined to ensure that no
C innocent person is punished. On a careful scrutiny of the
statement of PW-14, only one aspect creates slight doubt
in the minds about his remembering the names of the 18
accused persons along with the names of their villa_ges
after a lapse of three months. Some people with sharp
memory may perhaps be able to recount and recall all the
D names and villages correctly. But when the case of
ordinary rustic illiterate villager is taken tt?e possibility of
over implications cannot be fully ruled out. PW14 named
all the 18 accused but the independent witness Head
Constable-PW 27 named L, M, MS, VK, CS and OS. So as
E far as these names are concerned, corroboration from
the testimony of Head Constable PW 27 is found and
there cannot be slightest doubt regarding their
participation in this ghastly crime. There is strQng
suspicion about participation of RS but benefit of doubt
F is given to him because he was not named by PW 27.
[Para 35) [177-D-H; 178-A]
2.6. High Court in the impugned judgment did not
correctly follow the legal position. Trial court exhaustively
G dealt with the entire evidence and documents on record
and the findings of the trial court is based on proper
marshalling and analyzing the evidence and documents
on record. The trial court gave graphic description of the
entire case of the prosecution and the detailed
circumstances in which the evidence of PW14 was
H
STATE OF U.P. v. RAM SAJIVAN & ORS. 159
recorded. To satisfy the conscience and to ensure that A
even the miscarriage of justice should not take place, the
entire evidence and documents on record are re-
examined. The trial court's view is the only possible view
in the facts and circumstances of the case. [Para 50) [188-
A-E] B
2.7. This Court is usually very slow in interfering with
the acquitall of the accused. This Court would not have
- '"\ interfered if the view which has been taken by the High
Court is a possible or plausible view. On proper scrutiny
of the entire evidence and documents on record, no c
other view is possible except the guilt of some of the
accused. [Paras 33 and 34) [176-H; 177-A-C]
2.8. The trial court convicted 18 accused but to
ensure that even the slightest miscarriage of justice D
should not take place, the order of the trial court is
modified and the benefit of doubt is giv~n to 12 accused
but as regard other six accused, there is no iota of doubt
about their participation in this ghastly crime where seven
innocent persons of lower caste were literally butchered E
and were thrown in the river Ganges at a point where
there were strong currents to .wipe out the entire
evidence in this case. [Para 50) [188-D-F]
2.9. On consideration of the totality of the facts and
-I F
circumstances of the case, the acquittal of six accused-
MS, UB, OS, M. RN and VK recorded by the High Court
is set aside and their conviction as recorded by the trial
court is restored. However, during the pendency of the
instant appeal. One accused died and consequently his
appeal abates. Other accused who were convicted by the G
trial court are given benefit of doubt. They were acquitted
by the High Court in the impugned judgment. Their
acquittal is maintained. [Paras 51 and 52) [188-G-H; 189-
A-CJ
H
160 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.
A State of UP. v. Banne alias Baijnath and Ors. (2009) 4
sec 271, relied on.
Tu/siram Kanu v. The State, AIR 1954 SC 1; Lekha
Yadav v. State of Bihar (1973) 2 SCC 424; Bishan Singh and
Ors.v. The State of Punjab (1974) 3 SCC 288; Umedbhai
B Jadavbhai v. The State of Gujarat (1978) 1 SCC 228; B.N.
Mutto and Anr. v. Dr. T.K. Nandi (1979) 1 SCC 361; Tota
Singh and Anr. v. State of Punjab (1987) 2 SCC 529; Harijana
Thirupa/a and Ors. v. Public Prosecutor, High Court of A.P.,
., ~
Hyderabad (2002) 6 SCC 470; Chandrappa and Ors. v. State
c of Kamataka (2007) 4 SCC 415; Raj Nauin v. State of UP.
and Ors. Ors. [2009] 14 (ADDL.) SCR 755; Chikkarangaiah
and Ors. v. State of Kamataka [2009] 13 (ADDL.) SCR 1182;
Sambasivan and Ors. v. State of Kera/a (1998) 5 SCC 412;
Ramesh Babula/ Doshi v. State of Gujarat (1996) 9 SCC 225;
D Ghurey Lal v. State of UP (2008) 10 SCC 450, referred to.
Case Law Reference:
AIR 1954 SC 1 Referred to. Para 37
E (1973) 2 sec 424 Referred to. Para 38
(1974) 3 sec 288 Referred to. Para 39
(1978) 1 sec 228 Referred to. Para 40
(1979) 1 sec 361 Referred to. Para 41 t
F
(1987) 2 sec 529 Referred to. Para 42
(2002) 6 sec 470 Referred to. Para 43
(2007) 4 sec 415 Referred to. Para 44
G [2009] 14 (ADDL.) SCR 755 Referred to. Para 45
[2009] 13 (ADDL.) SCR 1182 Refer-~d to. Para 45
(1998) 5 sec 412 Referred to. Para 46
H (1996) 9 sec 225 Referred to. Para 46
STATE OF U.P. v. RAM SAJIVAN & ORS. 161
(2008) 1o sec 450 Referred to. Para 47 A
(2009)4 sec 211 Relied on. Para 48
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 686 of 2002.
B
From the Judgment & Order dated 10.1.2001 of the High
Court of Judicature at Allahabad in Criminal Appeal No. 1715
of 1982.
Ratnakar Das, S.N. Pandey, Chandra Prakash Pandey for C
the Appellant.
Vishwajit Singh, N.P. Singh, Siddharth Sengar, Abhindra
Maheshwari, Pankaj Singh for the Respondents.
The Judgment of the Court was delivered by D
DALVEER BHANDARI, J. 1. Unfortunately, the centuries
old Indian Caste System still takes its toll from time to time. This
case unfolds the worst kind of atrocities committed by the so
called upper-caste (Kshatriya or Thakur) against the so called
lower-caste -Harijan caste in a civilized country. It is absolutely E
imperative to abolish the caste system as expeditiously as
possible for the smooth functioning of Rule of Law and
Democracy in our country.
2. In the instant case, the accused persons belonging to F
Thakur caste literally butchered seven totally innocent persons
belonging to the Harijan caste and to wipe out the entire
evidence of their atrocities, after shooting they were thrown in
the river Ganges where currents were very strong. Out of seven,
even the bodies of five persons could not be recovered. G
3. This appeal emanates from the judgment and order
dated 10.01.2001 delivered by the High Court of judicature at
Allahabad in Criminal Appeal No. 1715 of 1982. By this
impugned judgment, all the 18 accused who were convicted
H
162 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.
A and sentenced to life imprisonment by the trial court have been
subsequently acquitted by the High Court.
4. The learned Additional Sessions Judge, Fatehpur, in an
elaborate, exhaustive and well considered judgment, sentenced
8 the 18 accused persons under section 302 read with section
149 IPC for committing the murder of Jasodiya, Ganga, Tulsi,
Deo Nath alias Madan, Din Dayal, Sukhlal and Shripal.
Accused persons were further sentenced to undergo seven
years rigorous imprisonment on each counts for committing the
dacoities. The accused persons were also sentenced to
c undergo five years of rigorous imprisonment under section 364
IPC for abduction of Kallu, Jasodiya, Ganga, Tulsi, Deo Nath,
Din Dayal, Sukhpal and Shripal. All the accused persons were
also sentenced to undergo four years rigorous imprisonment
under section 201 ·IPC for ~limination of evidence of murder
D by throwing the dead bodies of the seven persons in the river
Ganga. All the sentences awarded to the accused persons on
all counts were directed to run concurrently.
5. In appeal, the High Court acquitted all the eighteen
E accused. The appellant, State of U.P. has preferred this appeal
against the impugned judgment of the High Court acquitting all
the accused persons.
6. Brief facts necessary to dispose of this appeal are t
recapitulated as under:-
F
On the intervening night of 9/10.9.1979 in the village
Lohari, Police station Hussainganj, U.P. 20-22 accused
persons committed dacoities in the Harijan locality by breaking
open the doors of the main gate of the house of Jasodiya and
G Kallu P.W.14. They looted the house. Thereafter, Kallu,
Jasodiya. Din Dayal, Sukhlal, Shripal, Tulsi, Ganga Ram, Deo
Nath alias Madan were tied with rope and were taken to the
bank of the river Ganges, pushed in the boats and brutally
murdered and thereafter all of them were thrown in the river
H
STATE OF U.P. v. RAM SAJIVAN & ORS. 163
[DALVEER BHANDARI, J.]
Ganges, at a point where there were strong currents. Out of A
seven, five dead bodies could not be retrieved. Kallu P.W.14
jumped into the stream of the river Ganges and saved his life.
Jasodiya, wife of Kallu was recovered from the river Ganges
in an injured and unconscious state and after she regained
consciousness, she got a written report Ex. KA.1 scribed by B
the witness Shyam Lal P.W.4 and the report was lodged at the
police station Hathgaon of the District, U.P .. The statement of
Jasodiya recorded under section 161 Cr.P.C. was recorded
by the Investigating Officer, the extract of which is Ex. KA.25.
The dying declaration Ex. KA.6 of Jasodiya was recorded by c
Dr. C. M. Mittal, Medical Officer at midnight on 10.9.1979. She
narrated that on the previous night i.e. 09.09.1979 at about 11
p.m. about 20-22 persons came to her house. They forced their
entry inside the house by cutting open the door shutters of the
house and looted the property. The accused perscns caught D
hold of her and her husband Kallu, Tulsi, Madan, Ganga Ram,
Din Dayal, Sukhlal and Shripal sons of Din Dayal were also tied
by a rope. The accused had pretended to be the Police officials
of the District Rai Bareilly who had come to arrest persons in
connection with some dacoity which took place in Rai Bareilly. E
7. The accused persons had taken eight persons after
tying them by a rope to the village Maheva on the bank of river
Ganges. These abducted persons from that point were taken
by two boats towards the east. These two boats were being
rowed by two boys belonging to the village Mahewa. Jasodiya F
, did not mention their names. After they covered some distance
on boats towards the east they were forced to disembark from
the boats. Jasodiya started weeping and crying and her
husband Kallu, who was also terribly frightened managed to
jump into the stream of the river Ganges and swam to safety. G
Jasodiya, who continued to cry and weep, was attacked by the
accused with knives and she was shot at by firing from gun and
she was thrown in the river Ganges. Jasodiya was taken by the
swift current of the river Ganges to village Jafrabad where she
was spotted by two persons who took her out of the river H
164 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.
t
A Ganges. She expressed her apprehension about the killing of
the remaining abducted persons by the said accused who were
pretending to be the police personnel. This report Ex. KA.1 was
sent to the Station' Officer of the Police Station Hussainganj for
investigation and necessary action. Similar story was narrated
B by Jasodiya to the Investigating Officer Devi Dayal Dixit, as
would appear from the extract Ex. KA 25 and also in the dying
declaration Ex. KA.6.
8. Two persons spotted Jasodiya when she reached near
the bank of the river in village Jafrabad. They reached at the
c bank of the river, took her out and put her on a small cot and
she was warmed by fire under a Mahuwa tree. Thereafter, she
was taken for medical examination of her injuries at the Public
Health Centre (for short, PHC) Hathgaon, where Dr. C. M. Mittal
examined the injuries of Jasodiya. She was taken there by Chet
D Ram 149 C.P. and Rais Ahmad 454 C.P. of the Police Station
Hathgaon who had identified Jasodiya before Dr. C. M. Mittal.
•
The examination took place at 10.30 pm on 10.9.1979. Dr.
Mittal assessed the age of Jasodiya around 50 years and he
found the following injuries on the person of Jasodiya:
E
"1. Two incised wounds of W' x 1/8", depth not measured,
other wound Yi" x 1/8" x depth not measured, which are
on the left side neck 2" below from the left mastoid
process. The wounds are paralleled and one inch distance
F between two wounds. Bleeding not there. Margins were
clear cut and well defined.
2. A gun shot wound entry of Yi" x Yi" x muscle deep size
on the lower abdomen 3 Yi" below the umbilicus.
G 3. Gun shot wound of entry Yi" x Yi" x muscle deep size on
the outer aspect of right thigh 3%" from the right anterior
superior iliac spine. No bleeding.
Injury No. (1) kept under observation caused by some
sharp weapon. Rest injuries caused by fire arm weapon.
H
STATE OF U.P. v. RAM SAJIVAN & ORS. 165
[DALVEER BHANDARI, J.]
Referred to District Hospital, Fatehpur for treatment and A
advised X-ray of all the affected parts. Duration about one
day old."
Dr. Mittal prepared injury report Ex KA.5 and according to
his statement these injuries could be caused in the night B
between 9/10.9.1979 at any time after 11 PM. Dr. Mittal
also recorded the dying declaration of Smt. Jasodiya in
the same night at about mid night. The dying declaration
i is Ex. KA.6."
9. Jasodiya succumbed to the injuries and died on c
11.9.1979. Shim Singh conducted inquest proceedings in
respect of the dead body of Jasodiya. He prepared inquest
report Ex. KA.17, Photo Nash Ex. KA.18, Challan Nash Ex.
KA.19, Report for post-mortem examination Ex. KA.20 and
report for sending clothes etc. removed from the dead body of D
Jasodiya Ex. KA.21 .
...
10. The post-mortem of Jasodiya was conducted by Dr.
S.K. Tandon, P.W.6, Medical Officer working at the District
Hospital, Fatehpur on 12.9.1979 at 2 p.m. Dr. Tandon found the E
following ante-mortem injuries on the dead body:
"1. One gun shot wound of entry Yi" x Yi" x bone deep on
the anterior lateral surface of upper third of right thigh.
t Margins lacerated. Blackening and tattooing present.
F
2. One gun shot wound of exit Yi" x Yi" x muscle deep on
the leluic region 4" below umbilicus. Margins everted and
lacerated. No blackening present.
Injury No. (1) and (2) are interconnected with each other. G
There is laceration of right femual vessel under injury No.
1. No Gun shot recovered from the body after extensive
search. Direction right to left and upward.
3. Contusion 4" x 1" right side back.
H
166 SUPREME COURT REPORTS (2009] 16 (ADDL.) S.C.R.
A 4. Abrasion %" x W' x on ankle region.
5. Incised wound 1" x %"muscle deep on left side neck 1
%" below the left ear. Margins everted and clean out.
6. Incised wound 1" x %" x muscle deep, left side of neck.
B
In internal examination heart was found empty and
the stomach was also found empty.
The death was caused due to shock and
haemorrhage due to ante-mortem injuries. The ante-
c mortem injuries were quite sufficient in the ordinary course
of nature to cause the death. He had taken off ei Dhoti, One
keel of nose, ring, 17 Chooriyan (bangles), 6 Bachchey,
two ear-rings and sealed them and gave them to Constable
Rais Ahmad for being taken to the police station."
D
11. The dead body of Shripal, S/o Din Dayal was
recovered from the river Ganges and its inquest was conducted •
by Bhim Singh, Sub-Inspector posted at the Police Station
Hathgaon. After appointing Panchas, Sub-Inspector Bhim Singh
E inspected the dead body of Shripal and prepared the inquest
report. Dr. P. Joshi, P.W.7 who was working as the Medical
Officer, District Hospital, Fatehpur, conducted the post-mortem
on the dead body of Shripal and found the following injuries:
"1. One gun shot wound of entrance 1" x 1" x abdominal
F
cavity deep at 11 O' clock position 1 %" apart frum
umblicus loop of bowes protruding out of the ".'.Jund.
Margins lacerated and inverted. Blackening c:1nd tattooing
present.
G 2. One gun shot wound of entrance 1" x 1" x chest cavity
deep on the left side of chest 3 O'clock po"ition, 1 W'
apart from left nipple. Margins lacrrated, inverted.
Blackening and tattooing present.
H
STATE OF U.P. v. RAM SAJIVAN & ORS. 167
[DALVEER BHANDARI, J.]
., 3. One gun shot wound of entrance 1" x 1" x chest cavity A
deep on right side back upper third part scapular region.
Margins lacerated. Blackening and tattooing present.
4. Multiple gun shot wound of entrance on the left side of
chest and abdomen 1/8" x 1.8" x muscle cavity deep in an
B
area of 5" x 7" x 1O" downwards from left anterior axillary
fold. Margins lacerated and everted. Blackening and
tattooing absent."
1
On internal examination, Dr. Joshi found fracture of 4th rib
from side and 11th and 12th ribs on side. Fracture of c
scapula right side. Right and left lungs were found
lacerated and perforated at places. Clotted blood was
found in the lungs in substance. Both pleural cavity
; contained 1 LB and 10Z. blood. Peritoniat cavity contains
<
blood mixed with digested food one pound ounce clotted D
blood present. Stomach was found normal and its contents
were digested food measuring 4 Oz. with gasses. Small
and large intestines were perforated throughout at places
along with mesenteric vessels. The liver was found
lacerated in left lobe. Gall bladder was found normal. E
Spleen was found perforated and left kidney was found
lacerated and perforated.
The death was caused due to shock and haemorrhage as
t a result of ante-mortem injuries."
F
12. The dead bodies of the remaining abducted persons
viz. Madan, Tulsi, Ganga, Sukhlal and Din Dayal could not be
traced.
'
13. On 15.9.1979, the Investigating Officer recorded the G
statements of Dashrath and other witnesses. The Investigating
Officer arrested the accused Udai Bhan Singh alias Lal(an
Singh on 22.9.1979. On 23.9.1979, the Investigating Officer
raided the houses of the other accused persons but they were
not traceable. On that very day, he recorded the statements of
H
168 SUPREME COURT REPORTS [2009) 16 (ADDL.) S.C.R.
A witnesses Suraj Prasad, Lalta Prasad, Budhuwa, Tejram Prem
Shankar and Uma Shanker.
14. On 24.9.1979, the Investigating Officer arrested the
accused Virendra Singh and recorded his statement. On
28.9.1979, the Investigating Officer recorded the statements of
B
witnesses Jagat Narain, Bhagwat and Sumer. On 1.10.1979
accused Lavkush was arrested. On 3.10.1979 accused Man
Singh and Chaturbhuj Singh were arrested. On 7.10.1979
accused Faiyaz was arrested. Accused Dhirendra Singh,
Ganga Din, Banwari and Cheddu alias Virendra Singh
c surrendered in court on 7.10.1979 and they were sent to jail.
15. On 11.10.1979, the Investigating Officer recorded the
statement of witness Rai Dutt. On that very day, accused Suraj
Bali Singh surrendered himself in court and was sent to jail. On
D the next day, i.e. 12.10.1979 accused Ram Niwas Singh alias •
Chhaila Singh and Mathura Singh alias Vijai Bahadur Singh
surrendered themselves in court and were sent to jail. On
13.10.1979 accused Vijai Karan Singh surrendered himself in
court and was sent to jail. The Investigating Officer recorded
E the statements of witnesses Barati Lal and Nanku on
20.10.1979. Accused Subhash Singh surrendered himself in
court on 29.10.1979 and he was also sent to jail. Accused
Chunna surrendered himself in court on 12.11.1979.
16. On 25.11.1979, the Investigating Officer filed a charge-
F sheet against 15 persons, namely Mathura Singh, Ram
Sajiwan, Udai Bhan Singh, Ram Niwas Singh, Suraj Pal Sirigh,
Banwari, Lavkush, Man Singh, Virendra Singh, c;·,irendra
Singh, Tejpal Singh, Faiyaz, Munna, Vijai i~aran Singh and
Chandra Bhan Singh. Thereafter on 7.12.19/9, a second
G charge-sheet was filed by the Investigating Officer against three
accused, namely Cheddu Singh, Subhash Singh and Ganga
Din.
17. The Investigating Officer recorded the statement of the
H
STATE OF U.P. v. RAM SAJIVAN & ORS. 169
[DALVEER BHANDARI, J.]
witness Kallu P.W.14, s/o Sukkha on 7. 12.1979. The evidence A
of this witness is extremely significant in the entire case. Kallu
P.W.14 is the only surviving injured eye-witness who has given
graphic description of the entire incident. He narrated that he
and his wife were in their house. Out of about 25 to 30 people,
about seven people were in the police uniform and others in B
plain clothes. He named 18 accused persons along with their
villages. He stated that the accused persons entered their
house by breaking open the door. They caught hold of him and
his wife and also Ganga, Tulsi, Dea Nath, Din Dayal, Sukhlal
and Shripal. According to him, the accused were holding rifles, c
guns, revolvers, axes etc. The accused had large sized lights
and they were keeping the lights on. They forcibly took them to
the side of the river Ganges. They were made to sit in two boats.
The accused also sat on the boat and took them between
Surajpur and Naroli. There was a dense forest on the side of D
1 the river. They got descended there. According to Kallu P.W.14,
the accused first killed his brother Dea Nath and then Shripal.
Thereafter, they killed Sukhlal, Ganga Ram and Tulsi. According
to his statement, they were standing on the said bank of the
river. According to him, when his turn came, he took a E
somersault and jumped into the river Ganges. Thereafter,
according to him, his wife was also killed. He further stated that
he made a deep dip in the water and came out at some
distance. At that point the accused were showing lights at him.
Then, he again made a dip and thereafter he reached floating
the sand in middle of the river Ganges in the forest and F
continued lying there.
18. Kallu stated that thereafter, he went to the police station
of Dalmau where he was not heard and his statement was not
recorded. Then he went to the forest of Munna and spent the G
night lying there. Next day, he went towards Lalganj and reached
Rai Bareilly and from there, he went to Bijnore and stayed there
for some days. Thereafter, he went to Lucknow. He also
mentioned in his statement that he had no enmity with Mathura
H
170 SUPREME COURT REPORTS (2009] 16 (ADDL.) S.C.R.
A Singh. He further stated that before this incident, a dacoity was
committed at the place of Mathura Singh in which brother of
Mathura Singh, Raj Bahadur was killed.
19. In his cross-examination, he stated that he was brought
by the police from Punjab. He came to the village in police
B
escort. In his statement, he has stated that the accused persons
used to come to the place of Mathura Singh frequently and
therefore, he knew and recognized them. He stated that he had 1'
also sent a complaint of 50 typed papers to Smt. Indira Gandhi
c and Shri Jagjivan Ram. Perhaps at the intervention of some
senior leader, the police investigated this matter. In his cross-
examination, he has stated that in Lucknow he met one M.L.A.
at Darulshafa (M.L.A's Hostel). He also met Shri Chhotey Lal,
M.L.A. of District Hardoi. He also stated that Shri Chhotey Lal
advised him to hide in the forests to save his life and that when
D it would be needed, they would locate him. He further stated
that his statement was recorded before the Magistrate.
According to him, the night of the incident was bright because
it was a moonlit night. He also denied that he gave the statement
to the Magistrate under pressure.
E
20. The prosecution, apart from Kallu P.W.14, also
examined the other 32 witnesses and a large number of
documents to prove its case. We would not like to burden the
judgment by naming all the prosecution witnesses. We will deal
F with their statements as and when it becomes imperative. The
statements of the accused persons were recorded under
section 313 of the Code of Criminal Procedure. The accused
denied their participation and suggested that they have been
falsely implicated because of enmity.
G 21. Most of the prosecution witnesses have turned hostile.
Kallu P.W.14 who was one of the victims of dacoity and
abduction and whose death was attempted by the accused
persons, has fully supported the prosecution case. Head
Constable Kashi Prasad Tiwari P.W.27 has also supported the
H
STATE OF U.P. v. RAM SAJIVAN & ORS. 171
[DALVEER BHANDARI, J.]
prosecution case. He had seen accused Lallan Singh, Munna, A
Mathura Singh, Vijai Karan, Chhaila Singh and Dhirendra
Singh on 9.9.1979 at 6 p.m. at the road running towards east
of the police out-post Chheolaha. According to him accused
....., Mathura Singh and Vijai Karan Singh had rifles. He stated that
he enquired from Lallan Singh alias Udai Bhan Singh as to B
where they were going or whether they were going to do some
big job and then in reply accused Lallan Singh told him that they
• were going to village Lohari.
22. Maharajiya P.W.3 had been treated as a hostile
witness, though she had corroborated the prosecution story to c
some extent. She is the wife of Din Dayal who had been
abducted and murdered in this occurrence. Her two sons
Shripal and Sukhlal have also been abducted and murdered.
P.W.3 has supported the prosecution case only to the extent
that her husband Din Dayal and sons Sukhlal and Shripal were D
taken away by the accused persons.
' 23. The other witness who has partly corroborated the
prosecution story, though he has also been treated as a hostile
witness by the prosecution and subject to cross-examination E
is Dashrath PW.28. He stated that about 1 Y2 years ago he was
going to his village within police station Hussainganj from
Fatehpur and when he reached mile no. 7 at 6.30 p.m. he saw
5-6 persons sitting on the bridge. Out of these 5-6 persons he
' recognized accused Mathura Singh, resident of Lohari, F
Chandra, resident of Gaura, but he could not identify the
remaining persons. He stated that he heard these persons
talking that they would go to Lohari and kill the residents of
Lohari and to throw away their dead bodies in the river Ganges.
He also stated that the father of Ram Prasad of Lohari be killed
G
and his body be thrown in the Ganges. He has named
Dhirendra Singh Thakur, Man Singh Thakur and Vijai Karan
Singh Thakur who were armed with rifles.
24. In this case, the statement made by Jasodiya, another
H
172 SUPREME COURT REPORTS (2009] 16 (ADDL.) S.C.R.
,..
A victim in this occurrence, was treated as a dying declaration.
She stated that on 09.09.1979 at 11 p.m. 20-22 persons armed
with guns and rifles forced their entry inside her house and
caught hold of her and her husband Kallu. They also caught hold
of Ganga, Tulsi, Madan, Din Dayal and his two sons Shripal
B and Sukhlal and all of them were tied with ropes and were
made to go to jungle and thereafter they were taken to the bank
of the river Ganges. They crossed the river on two boats and
across the river those persons fired guns and rifles. She further f
narrated that immediately after her husband was untied, he
c jumped into the river Ganges. She was also attacked and
injured with knife and gun shots and was thrown in the river
Ganges. She apprehended that the other persons namely
Ganga, Tulsi, Madan Din Dayal and his two sons Shripal and /
Sukhlal would have been killed and thrown in the river Ganges.
She further stated that she floated in the river and reached by
D
the side of Jafrabad and she succeeded in coming out of the
river Ganges, when two persons saw her and took her on a cot ~
and brought under a Mahua tree and there she was warmed
by the fire.
E 25. Dr. H.K. Tandon conducted the post-mortem
examination on the dead body of Jasodiya. According to him,
her omission to mention the names of the accused Mathura
Singh and Ram Sajiwan in the dying declaration could be
attributed to the state of deep shock in which she was when
F she made the statement.
26. The trial court has carefully examined the witnesses and
also appreciated the defence version as to why the testimony
of Kallu P.W.14 should not be believed. It was contended that
his testimony could not be believed because he was brought
G
from Punjab in police escort. The trial court observed that the
evidence of Kallu P.W.14 was the only surviving witness of the
occurrence. The possibility of his being attacked and killed
could not be ruled out and it was imperative for the District
Police Administration to provide police escort to him so he
H
STATE OF U.P. v. RAM SAJIVAN & ORS. 173
[DALVEER BHANDARI, J.]
could safely reach the court and back. It cannot be inferred that A
P.W.14 had been tutored by the police to support the
prosecution case because they provided police escort.
According to the trial court, Kallu is the eye-witness to the
occurrence and the only surviving persons out of 8 persons who
were abducted from village Lohari. The trial court observed that B
there was absolutely no material elicited by the defence in his
cross-examination which may render his statement
unbelievable. Kallu P.W.14 clearly stated that he had no animus
against the accused persons and he could not say as to why
the accused persons committed dacoities and abducted and c
killed the persons named above in the occurrence. He had
recognized 18 accused persons. He stated that he knew Ram
Sajiwan and Mathura Singh because they belong to his village
Lahori and also other accused persons because they used to
visit the house of Mathura Singh frequently. P.W.14 had stated D
that it was a moonlit night and they were all having big lights
with them and all the accused had open faces and none of them
had concealed or covered their faces. In the instant case,
accused persons were with Kallu PW14 for quite sometime.
Accused persons had tied Kallu and other seven persons with
rope and took them to the bank of river Ganga and put them in E
two boats and they were thrown in the river where currents were
strong. There was enough time to recognize the accused
persons properly .
• 27. According to the trial court, the statement of Kallu F
P.W.14 regarding the occurrence appears to be a true version
of the occurrence. The relevant observation of the trial court is
set out as under:
"47. Kallu after escaping death went to Dalmau Police G
Station but he was not heard and believed. Then he went
to Rae Bareilly and from there to Bijnore, Lucknow etc.
During this period he sent some applications to the various
leaders of the country. The fact remains that Kallu was
quite shocked and frightened and he could not dare to H
174 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.
A come to Fetehpur all alone. It cannot be said that Kallu had
been tutored there to implicate the accused persons in this
occurrence."
The trial court further observed that:
8 "..... Once abduction of these persons is established it is
for the accused to show as to what happened to them and
that they were alive and not dead. In the instant case there t
is evidence of Kallu that these persons were murdered by
the accused and their companions and there is no
c evidence of these persons being alive. Under these
circumstances it is proved that these five persons were
also killed and thus murdered in this incident."
28. The trial court further observed that in view of the
D testimony of Kallu, who is an independent and reliable witness
and his statemcr.t cuntains the true version of the occurrence.
The accused persons and their companions committed multiple
murders of the seven innocent persons of Harijan caste in cold
blood. It was a ghast:y 1,;1i111e committed by them which can
shock the conscience of any person of a civilized .society.
E
According to the trial court, it may be a case of a caste war in
which the accused and their companions wanted to teach a
lesson to the persons of the lower caste (Harijan and Chamars
in this case). The trial court found that the prosecution had
succeeded in establishing the charge of abduction of Kallu, his
F wife Jasodiya, Ganga, Tulsi, Deo Nath, Din Dayal, Shripal and
Sukhlal with the intention of committing their murder. The trial
court observed that the prosecution has also succeeded in
establishing beyond any shadow of reasonable doubt of the
charge of dacoity punishable under section 395 IPC against
G the accused. The trial court further observed that the accused
persons were further liable to be held guilty of the charge
punishable under section 201 IPC for destroying the evidence
of murder by throwing the dead bodies of the said victims in
the river Ganges, except Jasodiya who at that time had not died
H
STATE OF U.P. v. RAM SAJIVAN & ORS. 175
[DALVEER BHANDARI, J.]
but was seriously wounded and later on succumbed to her A
injuries. The trial court convicted 18 accused persons named
by Kallu P.W.14 in his testimony and sentenced them to life
imprisonment.
29. The accused respondents herein filed an appeal 8
before the High Court of Allahabad against the judgment of the
trial court. The appeal before the High Court was in the nature
of first appeal and the High Court in a case of this nature was
expected to carefully analyze the entire evidence and documents
on record but unfortunately the High Court without analyzing the C
entire evidence set aside the judgment of the trial court on the
following grounds:
- Smt. Jasodiya in her first information report which
was construed as the dying declaration did not
name the appellant. D
The statement of Kallu PW14 was recorded after
three months and because of his silence for three
months his statement is not worth relying.
The High Court has drawn adverse inference E
because the copy of the complaint sent to Mrs.
Indira Gandhi and Shri Jagjivan Ram was not
produced by Kallu PW14.
30. The High Court termed the testimony of Kallu PW14 F
as untrustworthy. The findings of the High Court are not based
on proper analysis and marshalling of the entire evidence on
record. As a matter of fact, the High Court in the impugned
judgment did not discuss the evidence on record.
31. A careful examination of the case in a proper G
perspective leads us to an entirely different conclusion. The
High Court ought to have appreciated the mental frame of
Jasodiya wherein she gave a statement which was construed
as a dying declaration. The eight persons who were abducted
H~
176 SUPREME COURT REPORTS (2009] 16 (ADDL.) S.C.R.
A and tied with rope and brought to river Ganges in the midstream
and after their murder were thrown in the river one by one
except Kallu PW14 who escaped because he jumped into the
river. In that fear psyche, naming the appellants would have
meant risking her life and in that state of mind, the omission of
B mentioning the names of the appellants is not unnatural and her
testimony cannot be discarded on that count.
32. Similarly, the High Court has failed to appreciate the t
circumstances in which Kallu PW14 has suNived by jumping
c into the river and hiding at certain places. In a genocide and
massacre which was witnessed by him, wherein all his seven
close relatives including his wife were killed one after other in
his presence and were thrown in the river Ganga, his escaping
the death was a miracle. Hiding and saving his life from a mighty
cruel upper caste group was a normal human instinct. Any
D reasonable or prudent person would have behaved in the same
manner. Immediately after his escape, he tried to make a
complaint but he did not succeed. Ultimately when he wrote to
Smt. Indira Gandhi and Shri Jagjivan Ram, perhaps at the
inteNention of someone, the police seriously investigated the
E matter and he was brought to his village Lohari under police
protection. The delay in giving his statement is fully explained
and in the facts and circumstances of the case delay was quite
natural. In a case of this nature, the witnesses turning hostile is
not unusual particularly in a scenario where upper caste people /.
F have created such a great fear psyche. The instinct of suNival
is paramount and the witnesses cannot be faulted for not
supporting the prosecution version. Even the evidence which
is on record particularly of Jasodiya and Kallu PW14 supported
by the evidence of Head Constable Kashi Prasad Tiwari PW27
G is sufficient to bring home the guilt of the accused. The
evidence of PW14 and PW27 lead to the only conclusion that
the accused were squarely responsible for committing such a
ghastly crime.
33. We are quite conscious of the fact that this court is
H
STATE OF U.P. v. RAM SAJIVAN & ORS. 177
[DALVEER BHANDARI, J.]
interfering with a case where there was a conviction by the trial A
court which ended up in acquittal by the High Court. This Court
is usually very slow in interfering with the acquittals. In the instant
case, the findings of the High Court are palpably erroneous and
unsustainable.
B
34. This court would not have interfered if the view which
has been taken by the High Court is a possible or plausible
view. In our considered view, on proper scrutiny of the entire
., evidence and documents on record, no other view is possible
except the guilt of some of the accused. The High Court without
analyzing the evidence and assigning any cogent reason set
c
aside the well reasoned judgment of the Additional Sessions
Judge and acquitted all the respondents.
35. We are equally conscious of the fact that reversal of
the judgment of the High Court would mean sentence of life D
imprisonment for some of the accused. We have given patient
~
hearing to the learned counsel for the parties and have
examined and re-examined the entire evidence and documents
on record to ensure that no innocent person is punished. On a
careful scrutiny of the statement of Kallu PW14, only one aspect E
creates slight doubt in our minds about his remembering the
names of the 18 accused persons along with the names of their
villages after a lapse of three months. Some people with sharp
memory may perhaps be able to recount and recall all the
.. names and villages correctly. But when we take the case of F
ordinary rustic illiterate villager, the possibility of over
implications cannot be fully ruled out. Kallu PW14 has named
all the 18 accused but the independent witness Head Constable
\
Kashi Prasad Tiwari PW27 has named Lallan, Munna, Mathura
Singh, Vijai Karan Singh, Chhaila Singh and Dhirendra Singh.
G
So as far as these names are concerned, we find corroboration
from the testimony of Head Constable Kashi Prasad Tiwari
PW27 and there cannot be slightest doubt regarding their
participation in this ghastly crime. We have strong suspicion
about participation of Ram Sajivan but we are giving him
H
178 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.
A benefit of doubt because he has not been named by PW27.
36. Before we part with this judgment, we deem it
appropriate to ~eal with judicial parameters to deal with the
cases in which this court would be justified in reversing the
judgment of acquittal. This court would ordinarily be slow in
B
interfering in order of acquittal. The scope of the powers of the
appellate court in an appeal is well settled. The powers of the
appellate court in an appeal against acquittal are no less than t
in an appeal against conviction.
c 37. In Tu/siram Kanu v. The State, AIR 1954 SC 1, this
Court explicated that the appellate court would be justified in
reversing the acquittal only when very substantial question and
compelling reasons are present. In this case, the Court used a
different phrase to describe the approach of an appellate court
D against an order of acquittal. There, the Sessions Court
expressed that there was clearly reasonable doubt in respect +
of the guilt of the accused on the evidence put before it. Kania,
C.J., observed that it required good and sufficiently cogent
reasons to overcome such reasonable doubt before the
E appellate court came to a different conclusion.
38. In Lekha Yadav v. State of Bihar (1973) 2 SCC 424,
the Court following the case of Sheo Swarup (supra) again
reiterated the legal position as under:
F "The different phraseology used in the judgments of this
Court such as-
(a) substantial and compelling reasons:
(b) good and sufficiently cogent reasons;
G
(c) strong reasons.
are not intended to curtail the undoubted power of an
appellate court in an appeal against acquittal to review the
H entire evidence and to come to its own conclusion, but in
STATE OF U.P. v. RAM SAJIVAN & ORS. 179
[DALVEER BHANDARI, J.]
doing so it should not only consider every matter on record A
• having a bearing on the questions of fact and the reasons
" given by the court below in support of its order of acquittal·
but should express the reasons in its judgment which led
it to hold that the acquittal was not justified."
B
39. In Bishan Singh & Others v. The State of Punjab
(1974) 3 SCC 288, Justice Khanna speaking for the Court
provided the legal position:
"22. It is well settled that the High Court in appeal under
Section 417 of the CrPC has full power to review at large C
the evidence on which the order of acquittal was founded
and to reach the conclusion that upon the evidence the
order of acquittal should be reversed. No limitation should
be placed upon that power unless is be found expressly
stated be in the Code, but in exercising the power D
conferred by the Code and before reaching its conclusion
upon fact the High Court should give proper weight and
consideration to such matters as (1) the views of the trial
judge as to the credibility of the witnesses; (2) the
presumption of innocence in favour of the accused, a E
presumption certainly not weakened by the fact that he has
been acquitted at his trial; (3) the right of the accused to
the benefit of any doubt; & (4) the slowness of an appellate
court in disturbing a finding of fact arrived at by a judge
.i who had the advantage of seeing the witnesses." F
40. In Umedbhai Jadavbhai v. The State of Gujarat (1978)
1 SCC 228, the Court observed thus:
"In an appeal against acquittal, the High Court would
not ordinarily interfere with the Trial Court's conclusion G
unless there are compelling reasons to do so inter a/ia on
account of manifest errors of law or of fact resulting in
miscarriage of justice."
H
180 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.
A 41. In B.N. Mutto & Another v. Or. T.K. Nandi (1979) 1
SCC 361, the Court observed thus:
"It stems out of the fundamental principle of our criminal
jurisprudence that the accused is entitled to the benefit of
any reasonable doubt. If two reasonably probable and
B
evenly balanced views of the evidence are possible, one
must necessarily concede the existence of a reasonable
doubt. But, fanciful and remote possibilities must be left
out of account. To entitle an accused person to the benefit
of a doubt arising from the possibility of a duality of views,
c the possible view in favour of the accused must be as
nearly reasonably probable as that against him. If the
preponderance of probability is all one way, a bare
possibility of another view will not entitle the accused to
claim the benefit of any doubt. It is, therefore, essential that
D any view of the evidence in favour of the accused must be
reasonable even as any doubt, the benefit of which an
accused person may claim, must be reasonable. "A
reasonable doubt", it has been remarked, "does not mean
some light, airy, insubstantial doubt that may flit through the
E minds of any of us about almost anything at some time or
other, it does not mean a doubt begotten by sympathy out
of reluctance to convict; it means a real doubt, a doubt
founded upon reasons. [Salmond J. in his charge to the
jury in R. v. Fantle reported in 1959 Criminal Law Review
F 584.]" •
{emphasis supplied}
42. In Tota Singh & Another v. State of Punjab (1987) 2
SCC 529, the Court reiterated the same principle in the following
G words:
"This Court has repeatedly pointed out that the mere fact
that the appellate court is inclined on a re-appreciation of
the evidence to reach a conclusion which is at variance
H with the one recorded in the order of acquittal passed by
STATE OF U.P. v. RAM SAJIVAN & ORS. 181
[DALVEER BHANDARI, J.]
the court below will not constitute a valid and sufficient A
ground for setting aside the acquittal. The jurisdiction of
the appellate court in dealing with an appeal against an
order of acquittal is circumscribed by the limitation that no
• interference is to be made with the order of acquittal unless
the approach made by the lower court to the consideration B
of the evidence in the case is vitiated by some manifest
illegality or the conclusion recorded by the court below is
such which could not have been possibly arrived at by any
court acting reasonably and judiciously and is, therefore,
liable to be characterised as perverse. Where two views c
are possible on an appraisal of the evidence adduced
in the case and the court below tias taken a view which
is a plausible one, the appellate court cannot legally
interfere with an order of acquittal even if it is of the
opinion that the view taken by the court below on its D
consideration of the evidence is erroneous."
(emphasis supplied)
43. In Harijana Thirupala & Others v. Public Prosecutor,
High Court of A.P., Hyderabad (2002) 6 SCC 470, this Court E
again had an occasion to deal with the settled principles of law
restated by several decisions of this Court. Despite a number
of judgments, High Courts continue to fail to keep them in mind
• before reaching a conclusion. The Court observed thus:
F
"10. The principles to be kept in mind in our system
of administration of criminal justice are stated and restated
in several decisions of this Court. Yet, sometimes High
Courts fail to keep them in mind before reaching a
conclusion as to the guilt or otherwise of the accused in a
given case. The case on hand is one such case. Hence it G
is felt necessary to remind about the well-settled principles
again. It is desirable and useful to remind and keep in
mind these principles in deciding a case.
H
182 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.
A 11. In our administration of criminal justice an
accused is presumed to be innocent unless such a
presumption is rebutted by the prosecution by producing
-
the evidence to show him to be guilty of the offence with
which he is charged. Further if two views are possible on
B the evidence produced in the case, one indicating to the
guilt of the accused and the other to his innocence, the
view favourable to the accused is to be accepted. In cases
where the court entertains reasonable doubt regarding the
+
guilt of the accused the benefit of such doubt should go in
c favour of the accused. At the same time, the court must
not reject the evidence of the prosecution taking it as false,
untrustworthy or unreliable on fanciful grounds or on the
basis of conjectures and surmises. The case of the
prosecution must be judged as a whole having regard to
the totality of the evidence. In appreciating the evidence ·---
D
the approach of the court must be integrated not truncated
or isolated. In other words, the impact of the evidence in
totality on the prosecution case or innocence of the
accused has to be kept in mind in coming to the
conclusion as to the guilt or otherwise of the accused. In
E
reaching a conclusion about the guilt of the accused, the
court has to appreciate, analyse and assess the evidence
placed before it by the yardstick of probabilities, its intrinsic
value and the animus of witnesses. It must be added that
ultimately and finally the decision in every case depends
F upon the facts of each case.
12. Doubtless the High Court in appeal ei+'".cr against
an order of acquittal or conviction as a court of first appeal
has full power to review the evidence to reach its own
G independent conclusion. However, it will not interfere with ~
an order of acquittal lightly or merely because one other
view is possible, because with the passing of an order of
acquittal presumption of innocence in favour of the
accused gets reinforced and strengthened. The High Court
H
STATE OF U.P. v. RAM SAJIVAN & ORS. 183
(DALVEER BHANDARI, J.]
would not be justified to interfere with the order of acquittal A
merely because it feels that sitting as a trial court it would
have proceeded to record a conviction; a duty is cast on
the High Court while reversing an order of acquittal to
examine and discuss the reasons given by the trial court
to acquit the accused and then to dispel those reasons. If B
the High Court fails to make such an exercise the judgment
will suffer from serious infirmity."
44. In Chandrappa & Others v. State of Kamataka (2007)
4 SCC 415, this Court held:
c
"(1) An appellate court has full power to review,
reappreciate and reconsider the evidence upon which the
order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no D
limitation, restriction or condition on exercise of such power
and an appellate court on the evidence before it may reach
its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial and
compelling reasons'', "good and sufficient grounds'', "very E
strong circumstances", "distorted conclusions", "glaring
mistakes", etc. are not intended to curtail extensive powers
of an appellate court in an appeal against acquittal. Such
phraseologies are more in the nature of "flourishes of
language" to emphasise the reluctance of an appellate F
court to interfere with acquittal than to curtail the power of
the court to review the evidence and to come to its own
conclusion.
(4) An appellate court, however, must bear in mind that in G
case of acquittal, there is double presumption in favour of
the accused. Firstly, the presumption of innocence is
available to him under the fundamental principle of criminal
jurisprudence that every person shall be presumed to be
innocent unless he is proved guilty by a competent court H
184 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.
A of law. Secondly, the accused having secured his acquittal,
the presumption of his innocence is further reinforced,
.reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis
of the evidence on record, the appellate court should not
B
disturb the finding of acquittal recorded by the trial court."
45. In the case of Raj Narain v. State of U.P. & Others
[Criminal Appeal Nos. 891-892 of 2002 decided on +
18.09.2009], this Court reiterated the aforesaid view and held
c that even if two views are reasonably possible, one indicating
conviction and other acquittal, this Court will not interfere with
the order of acquittal. However, this Court will not hesitate to
interfere with such order if the acquittal is perverse in the sense
that no reasonable person would have come to that conclusion,
D or if the a~quittal is manifestly illegal or grossly unjust [See also
Chikkarangaiah & Others v. State of Karnataka Criminal
Appeals No. 634-635 of 2002 decided on 02.09.2009]
46. In Sambasivan & Others v. State of Kera/a (1998) 5
SCC 412, while relying on the case of Ramesh Babula/ Doshi
E
v. State of Gujarat ((1996) 9 SCC 225, the Court observed thus:
"7. The principles with regard to the scope of the powers
of the appellate court in an appeal against acquittal, are
well settled. The powers of the appellate court in an appeal
F against acquittal are no less than in an appeal against
conviction. But where on the basis of evidence on record
two views are reasonably possible the appellate court
cannot substitute its view in the place of that of t":c trial
court. It is only when the approach of the trial court in
G acquitting an accused is found to be clearly erroneous in
its consideration of evidence on record and in deducing
conclusions therefrom that the appellate court can interfere
with the order of acquittal."
47. In Ghurey Lal v. State of UP (2008) 10 SCC 450, one
H
STATE OF U.P. v. RAM SAJIVAN & ORS. 185
[DALVEER BHANDARI, J.]
of us (Bhandari J.) summarized the legal position as follows in A
paras 69 and 70:
"69. The following principles emerge from the cases
above:
~.
'
1. The appellate court may review the evidence in appeals B
against acquittal under Sections 378 and 386 of the
Criminal Procedure Code, 1973. Its power of reviewing
evidence is wide and the appellate court can reappreciate
the entire evidence on record. It can review the trial court's
conclusion with respect to both facts and law. C
2. The accused is presumed innocent until proven guilty.
The accused possessed this presumption when he was
before the trial court. The trial court's acquittal bolsters the
presumption that he is innocent. D
3. Due or proper weight and consideration must be given
to the trial court's decision. This is especially true when a
witness' credibility is at issue. It is not enough for the High
Court to take a different view of the evidence. There must
also be substantial and compelling reasons for holding that E
the trial court was wrong.
70. In light of the above, the High Court and other appellate
courts should follow the well-settled principles crystallised
by number of judgments if it is going to overrule or F
otherwise disturb the trial court's acquittal:
1. The appellate court may only overrule or otherwise
disturb the trial court's acquittal if it has "very substantial
and compelling reasons" for doing so.
G
A number of instances arise in which the appellate court
would have "very substantial and compelling reasons" to
discard the trial court's decision. "Very substantial and
compelling reasons" exist when:
H
186 SUPREME COURT REPORTS (2009] 16 (ADDL.) S.C.R.
A (i) The trial court's conclusion with regard to the facts is
palpably wrong;
(ii) The trial court's decision was based on an erroneous
view of law;
•'
B (iii) The trial court's judgment is likely to result in grave
miscarriage of justice";
(iv) The entire approach of the trial court in dealing with
the evidence was patently illegal;
c (v) The trial court's judgment was manifestly unjust and
unreasonable;
(vi) The trial court has ignored the evidence or misread the
material evidence or has ignored material documents like
D dying declarations/report of the ballistic expert, etc.
(vii) This list is intended to be illustrative, not exhaustive.
2. The appellate court must always give proper weight and
consideration to the findings of the trial court.
E
3. If two reasonable views can be reached-one that leads
to acquittal, the other to conviction-the High Courts/
appellate courts must rule in favour of the accused."
F 48. In a recently delivered judgment of this court in State
of UP. v. Banne alias Baijnath & Others (2009)4 SCC 271,
one of us (Bhandari, J.) summarized the entire legal position
and observed that this court would be justified in interfering in
the judgment of the High Court in the following circumstances
G which are illustrative and not exhaustive:
(i) The High court's decision is based on totally
erroneous view of law by ignoring the settled legal
position;
H
STATE OF U.P. v. RAM SAJIVAN & ORS. 187
[DALVEER BHANDARI, J.]
(ii) The High court's conclusions are contrary to A
evidence and documents on record.
(iii) The entire approach of the High court in dealing with
the evidence was patently illegal leading to grave
miscarriage of justice; B
(iv) The High court's judgment is manifestly unjust and
unreasonable based on erroneous law and facts on
the record of the case;
(v), This Court must always give proper weight and C
consideration to the findings of the High Court.
(vi) This court would be extremely reluctant in interfering
~ with a case when both the Sessions Court and the
High Court have recorded an order of acquittal.
D
_. 49. The following principles emerge from the
aforementioned cases.
1. The appellate court may review the evidence in appeals
against acquittal under sections 378 and 386 of the E
Criminal Procedure Code, 1973. Its power of reviewing
evidence is wide and the appellate court can reappreciate
the entire evidence on record. It can review the trial court's
conclusion with respect to both facts and law.
2. The accused is presumed to be innocent until proved F
guilty. The accused possessed this presumption when he
was before the trial court. The High court's acquittal
bolsters the presumption that he is innocent.
3. There must also be substantial and compelling reasons G
for reversing an order of acquittal.
This court would be justified in interfering with the judgment of
acquittal of the High Court only When there are very substantial
and compelling reasons to discard the High Court decision.
H
188 SUPREME COURT REPORTS [2009) 16 (ADDL.) S.C.R.
A 50. When we apply the test laid down by this court
repeatedly in large number of cases, the irresistible conclusion
is that the High Court in the impugned judgment has not
correctly followed the legal position. In the instant case, the trial
court exhaustively dealt with the entire evidence and documents
B on record and the findings of the trial Court is based on proper
marshalling and analyzing the evidence and documents on
record. The trial court has given graphic description of the entire
case of the prosecution and the detailed circumstances in
which the evidence of Kallu PW14 was recorded. To satisfy our
c conscience and to ensure that even the miscarriage of justice
should not take place, we reexamined the entire evidence and
documents on record. The trial court's view is the only possible
view in the facts and circumstances of the case. Though the
trial court convicted 18 accused but to ensure that even the
slightest miscarriage of justice should not take place, we have
0
modified the order of the trial court and given benefit of doubt
to 12 accused but as far as other six accused are concerned,
there is no iota of doubt about their participation in this ghastly
crime where seven innocent persons of lower caste were
literally butchered and were thrown in the river Ganges at a point
E where there were strong currents to wipe out the entire evidence
in this case. The High Court has neither analyzed the evidence
nor the documents on record and without any cogent evidence,
the High Court by the impugned judgment has set aside a very
well reasoned judgment of the trial court.
F
51. On consideration of the totality of the facts and
circumstances of the case, we partly all.ow the appeal filed by
the State and the acquittal of six accused namely (1) Mathura
Singh @ Vijay Bahadur Singh R/o Viii. Lohari, District Fatehpur,
G (2) Udai Bhan Singh @ Lallan Singh R/o Kasraon District.
Fatehpur, (3) Dhirendra Singh R/o Mawaiya, District Fatehpur,
(4) Munna son of Ram Lal R/o District Banda, (5) Ram Niwas
Singh alias Challa Singh R/o Siyari, District Fatehpur, and (6)
Vijay Karan Singh R/o Bhainsahi, District Fatehpur recorded
H by the High Court is set aside and their conviction as recorded
STATE OF U.P. v. RAM SAJIVAN & ORS. 189
[DALVEER BHANDARI, J.]
by the trial court is restored. However, during the pendency of A
this appeal, Ram Niwas Singh alias Challa Singh died and
consequently his appeal abates.
52. The bail bonds of the convicted accused are cancelled
and they are directed to surrender forthwith. In case they do not 8
surrender within a period of four weeks from today, the State
of UP is directed to arrest and lodge them in the prison to suffer
the life imprisonment. Other accused who were convicted by
the trial court are given benefit of doubt. They were acquitted
by the High Court in the impugned judgment. Their acquittal is C
maintained.
53. The appeal is accordingly disposed of.
N.J. Appeal disposed of.
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