PETITIONER:
RAJENDRA PRASAD
Vs.
RESPONDENT:
STATE OF BIHAR
DATE OF JUDGMENT25/02/1977
BENCH:
GOSWAMI, P.K.
CHANDRACHUD, Y.V.
SHINGAL, P.N.
CITATION:
1977 AIR 1059 1977 SCR (3) 68
1977 SCC (2) 205
ACT
Criminal Procedure Code l898--Powers of High Court to
set aside acquittal --Whether trial court judgment should be
palpably wrong--Credibility of witness --Test identification
parade--Delay in.
F.I.R.--Absence to name accused--If conviction can be
based on sole testimony of a witness.
HEADNOTE
P.W. 9 Sabir aged about 18 year went to the house of
Lala (deceased) who used to render physical training and
swimming lessons to young boys and requested Lala to accom-
pany him to the bank of a river. When Lala was cleaning
his teeth and washing his face the appellant went there with
4 or 5 persons. The prosecution case is that those 4 or 5
persons engaged Lala in talk and the appellant thrust a
dagger on the back of Lala who died within minutes after the
assault. 20 to 25 persons who were there and P.W. 9 and
others ran behind the appellant. The prosecution examined
13 witnesses out of which 4 were eye-witnesses, namely, P.W.
1, 4, 9 and 10. The Sessions Judge disbelieved all the eye
witnesses, and acquitted the appellant. The Sessions judge
while acquitting the appellant took the following facts into
consideration :--
(1) P.W. 4 who lodged the First Information
Report did not name any accused and, in fact,
he did not know the accused before the occur-
rence and could not even identify him at the
test identification parade.
(2) P. Ws 1 and 10 had opportunity to see
the accused before and therefore the test
identification parade could not be attached
much significance.
(3) P. Ws 1 and 2 are’ supposed to have
seen the accused at the time when he was
running away from the place of occurrence
and, therefore, it was highly improbable that
they would be able to retain the impression of
the accused.
(4) It is highly improbable that P.W. 9 had
seen the incident since he did not go to the
Police Station nor even stayed at the place
of occurrence till the arrival of the police.
On the other hand, he confined himself in his
house until a constable came to take him to
the police station. The police in the begin-
ning suspected him as one
of the persons who participated in the
murder of the
deceased. His conduct is very suspicious.
The High Court in appeal by the State relied on
the evidence of P.W. 9 as being corroborated ’by P. Ws. 1
and 10. The High Court therefore, set aside the acquit-
tal and convicted the, accused under s. 302 I.P.C. and
sentenced him to rigorous imprisonment for life.
Allowing the appeal under s. 2(a) of the Supreme
Court (Enlargement of Criminal Appeal Jurisdiction) Act,
1970.
HELD: (1) When a trial court, with full view of the
witnesses, acquits an accused after disbelieving direct.
testimony it will. b.e essential for the High Court in an
appeal against acquittal to clearly indicate firm and
weighty grounds from the record for discarding’ the reasons
of the trial court in order to be able to reach a contrary
conclusion of guilt of the accused. The High Court should
be able to point out in its judgment that the trial court
reasons
69
are palpably and unerringly shaky and its own reasons
are demonstrably Cogent. As a salutary rule of apprecia-
tion of evidence in an appeal against acquittal it is not
legally sufficient that it is just possible for the High
Court to take a contrary view about the credibility of
witnesses but it is absolutely imperative that the High
Court convincingly finds it well-nigh impossible for the
trial court to reject their testimony. [74 A-C]
(2) This is not a case where it can be said that the
Sessions Judge came to a palpably wrong conclusion on the
evidence or that the reasons for acquittal of the accused
are manifestly erroneous, shocking one’s sense of justice.
The High Court was not right in interfering with the acquit-
tal of the accused in this case. 174-D]
(3) Since the Sessions Court and the High Court reached
different conclusions from the same evidence this Court went
through the entire evidence carefully in order to see wheth-
er the appreciation of the evidence by the Sessions Judge
was so unreasonable and unrealistic as to entitle the High
Court to interfere with the same. [70E-F]
JUDGMENT
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 159
of 1974.
(From the Judgment and Order dated 2-1-1974 of the Patna
High Court in Govt. Appeal No. 48/68).
S. Shaukat Hussain, for the appellant.
Pramod Swarup, for the respondent.
The Judgment of the Court was delivered by
GOSWAMI, J. The day, April 4, 1966, broke ominously for
Lala Barhi (deceased) who used to render physical training
and swimming ;lessons to young boys. One such boy, Sabir
Hanfi (PW 9), aged about ’l8 years, went to the house of
Lala Barhi (hereinafter, Lala) at Purani Bazar, in the
town of Muzaffarpur. Lala was then asleep. Sabir Hanfi woke
him up and they both went to the Ashram Ghat (known also as
Balu Ghat) on the bank of the Gandak river. There when Lala
was cleansing his teeth and washing his face., the appellant
Rajendra Prasad (hereinafter to be described as the accused)
came there with four or five persons. It is said that the
accused had some ’differences with Lala over some money
which he had given to him to assault somebody which Lala
failed to accomplish. As his companions were keeping Lala
engaged in talk, the accused thrust a dagger on the back of
Lala who then called Sabir Hanfi. lala himself a robust
young man. rushed towards the accused who took to his beels
with his companions. Lala fell down rushing forward a
space. of about forty yards and breathed his last. Sabir
Hanfi and others also ran ’behind Lala to his aid.
Although thirteen witnesses were examined by the prose-
cution only four of them were eye-witnesses to the occur-
rence. They are Ram Pukar Sah (PW 1), Parmeshwar Prasad (PW
4), Lachman Prasad (PW 10) and Sabir Hanfi (PW 9). The
Sessions Judge disbelieved all the eye-witnesses and acquit-
ted the accused. On the other hand the High Court relied on
the evidence of PW 9 as being corroborated by PWs 1 and 10.
The High Court, therefore, set aside the acquittal
70
and convicted the accused under section 302, Indian Penal
Code, and sentenced him to rigorous imprisonment for life.
Hence this appeal under section 2(a) of the Supreme Court
(Enlargement of Criminal Appellate Jurisdiction) Act, 1970.
PW 4 who lodged the first information report without
naming any accused and who did not know the accused before
the occurrence could not even identify him at the Test
Identification Parade which was held on September 29, 1966.
The evidence of PW 4 is, therefore, of no significance. The
case, therefore, depended upon the evidence of recognition
of the accused while running from the place of occurrence by
PWs 1, 10 and the direct testimony of PW 9 who knew the
accused from before. The accused was known only to Sabir
Hanfi (PW 9) by name. The other two witnesses did not know
the accused from before and saw him only while running away
followed by twenty or twenty five other persons.
The evidence of PWs 1 and 10, which we have carefully
perused, go to show that they did not know the accused from
before. They however,.. identified the accused in the Test
Identification Parade held on September 29, 1966, nearly six
months after the occurrence. There is no reason why the Test
Parade was delayed so long when the accused had surren-
dered on June 17, 1966. As stated earlier, the trial court
which had opportunity to see these witnesses disbelieved
them by giving certain reasons. For example, according to
the Sessions Judge, these two witnesses had the opportunity
to know the accused from before and,. therefore, their
identification in the Test Identification Parade was not
considered of such significance. He further observed that
these witnesses saw the accused at the time when he was
running away from the place of occurrence and, therefore,
"it is highly improbable that they would be able to retain
the impression of the assailant of Lala Barhi in their mind
for so many months". The High Court, on the other hand,
held that identification by PWs 1 and 10 was reliable. Thus
when two courts have come to a different conclusion on the
same evidence, we had ourselves to go through the entire
evidence carefully in order to see whether the appreciation
of the evidence by the Sessions Judge was so unreasonable
anti unrealistic as to entitle the High Court to interfere
with the same.
PW 1 is the father of PW 10. His uncle died on the
previous night and both he and his son (PW 10) went for his
cremation at Chandwara Ghat. The cremation was over at
about 6.16 A.M. on the morning of the day of occurrence.
They then went to Balu Ghat for a bath. They saw Lala
Barhi doing physical exercise on the bank of the river and
they went to take their bath in the river. After about ten
minutes they heard a huIIa ‘pakro’ ‘pakro’. On hearing the
hulla they came up to the Bank from the river and saw Lala
Barhi running away towards the East and four persons were
chasing him and raising a huIIa ‘pakro’ ‘pakro’. They fur-
ther stated that about twenty or ’twenty-five persons fol-
lowed to catch two or three persons who were chasing the
Lala. They had come out of the water at that time. PW 10
stated that he could not identify the other companions of
Lala because he "saw their back only and not their face".
Since both the
71
witnesses came out of the water on hearing the hulla which
was raised only after the assault, it was not possible for
these two witnesses to see the stabbing. Even if they
recognised the persons running away, they would not be able
to say who, amongst them, had stabbed the deceased. PW
10 has candidly admitted that he could not recognise the
companions of the deceased as they were running ahead and he
was watching from behind, If this be the position with
regard to the companions of the deceased it is difficult to
see how these two witnesses were able to recognise the
accused who was running away. Apart from that there were
twenty to twenty five others following the accused with two
or three persons thus obstructing a clear view of the ac-
cused. In this state of evidence it is impossible to hold,
on their evidence, that the learned Sessions Judge did not
reach a correct conclusion that identification by these two
witnesses was futile for the purpose of establishing the
charge against the accused. We are unable to appreciate how
the High Court in this state of evidence could reasonably
come to a contrary conclusion with regard to the testimony
of these two witnesses.
This leaves PW 9 for consideration. Although PW 9 knew the
assailant by name, there is no mention of the accused’s name
in. the first information report lodged the same day. at
12.00 noon, five hours after the occurrence, the Thana being
only one and a half miles from the place of occurrence. The
accused is described in the first information report as "a
dark complexioned healthy young man, about the age of 24/25
years". It may be that PW 9 is the only witness who had
seen the stabbing. He may be the witness from the beginning
of the occurrence till the end and who described the inci-
dent in detail. According to him while the deceased was
cleansing his teeth the accused came near him with four
or five persons and that while some of then kept the de-
ceased engaged in some conversation the accused stabbed the
deceased on his back with a dagger. The whole case will,
therefore, rest on the evidence of this witness who knows
the accused from before. The Sessions Judge has considered
him as unreliable for the following reasons :--
(1) It is highly improbable that if he had
seen the incident he would not have rushed to
the police station or even stayed at the place
of occurrence till the arrival of the po-
lice.
(2) That on the other hand PW 9 confined
himself in his
house from 4th April till the evening of the
following day
when a constable went t6 his house to take him
to the police station.
(3) The police at first suspected that he
might have a hand in the murder of the de-
ceased and suspected him and kept him in the
police lock-up.
(4) The conduct of the witness is very
suspicious and no reliance can be placed on
his evidence.
6--240SCI/77
72
The High Court has considered the first two grounds as
insufficient for holding the witness as unreliable. It
observed that "it is of common knowledge that generally
people try to avoid becoming an informant and to be an eye-
witness of the occurrence for various reason". With regard
to the third and fourth grounds the High Court referred to
the station diary entry (Ex. 4) and to the evidence of PW 12
and held as follows :--
"... it was ’by mistake that PW 9 was
arrested by a constable. P.W. 12 has stated
that in fact he was a prosecution witness. I
do not find any valid reason for discrediting
the evidence of P.W. 9".
From the evidence of PW 9 and PW 12 and in the context
of the station diary entry (Ex. 4), the position emerges as
follows :--
A police officer went to the house of PW 9 in the
evening of April 5, 1966, to bring him to the Thana. He was
found by the Officer-incharge of the Thana (PW 12) sitting
at the police station at 7.30 P.M.. Now let us read the
station diary entry (Ex. 4). Before we quote the. same we
should state that this exhibit has not been correctly trans-
lated at page 56 Of the Paper Book. We, therefore, our-
selves examined the original station diary entry and we will
set out the same as correctly translated as under :--
"XVIII. Entered in Thana Daily S. 186
186. That this time, Shri G.S. Chaturvedi,
Town Inspector, came to Thana and took with
him Mohd. Sabir Hanfi alias Funna r/o Saraiya-
ganj Thana Town---the accused (Abhiyukta) in
connection with S. No. 5(4)66, Sec. 302 IPC.
On search nothing was found on his person
except clothes he was wearing. After all the
rules of Hajat were observed he was kept in
Hajat".
Some uncertainty was felt by counsel regarding the
meaning of the word "hajat". We have no doubt that the
word "hajat" means custody in this context. Bhargava’s
Standard Illustrated Dictionary, Hindi Language, gives the
meaning of Hajat, inter alia, as custody, and states thus:
"Hajat mein rakhna" means "to keep a culprit in custody".
The High Court, we are afraid, does not appear to have
examined the original station diary entry (Ex. 4) with care
otherwise it would not have come to the conclusion that it
was by mistake that PW 9 was arrested by a constable simply,
from the self-serving statement of PW 12. The High Court
does not even refer to the fact that a very important recit-
al in the original entry (Ex. 4), namely, the word
"abhivukta" (accused) has been scored out and in its place
the word "gavah" (witness) was substituted. The interpola-
tion of the word "gavah" (witness) for "abhiyukta" (accused)
appeared to be of a different writer from the original
writings in the entry. This is serious tampering with an
official record in a criminal case when a man’s life is in
jeopardy in a trial for murder under section 302 IPC. We
have also grave suspicion about the date of correction of
the entry in Ex. 4.
73
Although the above entry shows that PW 9 was brought
to the Thana by the Town Inspector, G.S. Chaturvedi, he was
not even examined in the case to show why and under what
circumstances PW 9 was brought by him. This entry in the
official record clearly shows that PW 9 was at that stage
considered as an accused in connection with this murder case
and his person was searched before confining him in the
Hajat. If he was only a witness there was no reason why his
person would be searched. and why he would be kept in the
lockup "after all the rules of Hajat were observed". The
High Court completely lost sight of these serious infirmi-
ties in the prosecution evidence and it was absolutely
impermissible to accept the statement of PW l 2 when he
stated that PW 9 "had not been arrested" and that "he was
only a prosecution witness.
There are some other disquieting features with
regard to the evidence of PW 9. It is not understood why he
should have said that a constable brought him to the Thana
whereas the entry (Ex. 4) shows that the Town Inspector,
Chaturvedi, brought him to the Thana. If, as the entry
shows, he was brought by the Town Inspector, Chaturvedi, and
he was kept confined in the lock-up as an accused in the
murder case, it is difficult to comprehend how at that very
stage Ex. 4 could be considered by PW 12 as containing a
wrong recital without reference to the Town Inspector.
Besides, PW 12, as he says, had taken charge of the investi-
gation from Sub Inspector, Gupteshwar Dayal (PW 13) at 11.00
A.M. on April 5, 1966, inspected the place of occurrence,
unsuccessfully searched for the suspects Rajendra Prasad,
Ram Bilas Sahani and Mohan Jha at their houses,. examined
some witnesses and then reported to the Thana at 7.30 P.M.
to find PW 9, the principal witness, sitting there. Even
then he would not record the statement of PW 9. He admitted
during the course of cross-.examination that when he first
interrogated PW 9 at the Thana he had not recorded his
statement. He did not even record his statement when he
came to the Thana from his house at 11.00 P.M. that night,
These are very suspicious ’circumstances. PW 12, however,
admitted that he recorded the statement of PW 9 on the
following day (6-4-1966) at 12.05 A.N., after having pro-
duced him before the Superintendent of Police. PW 9
admits that he was interrogated by the Superintendent of
Po1ice for twenty to twenty five minutes. PW 12 stated in
his examination-in-chief that he allowed PW 9 to go to his
house after he had recorded his statement on April 6, 1966,
at 12.05 A.N. From the evidence of PW 12 read with the
entry (Ex. ’4) it does not appear that PW 9 was freed from
police custody at least till his statement was recorded on
April 6, 1966. Again, the statement of PW 9 was recorded by
the Magistrate under section 164, Criminal Procedure Code,
on April 12, 1966, when perhaps the police had finally
decided to treat him as a prosecution witness instead. of
an accused. This conclusion is irresistible on the state of
evidence to which we have referred above. If under these
circumstances the Sessions Judge held that the conduct of
this witness was such as would seriously affect his credi-
bility, the High Court was not at all justified in taking a
contrary view even without a proper analysis of the oral and
documentary evidence. When the evidence of recognition of
the
74
accused by PWs 1, 10 and 4 is unreliable, no conviction can
be based on the sole testimony of a witness like PW 9, on
whom the first suspicion fell, without any corroboration..
When a trial court, with full view of the witnesses,
acquits an accused after disbelieving direct testimony, it
will be essential for the High court, in an appeal against
acquittal, to clearly indicate firm and weighty grounds,
from the record, for discarding the reasons of the trial
court in order to be able to reach a contrary conclusion of
guilt of the accused. The High Court should be able to
point out in its judgment that the trial court’s reasons are
palpably and unerringly shaky and its own reasons are
demonstrably cogent. As a salutary rule of appreciation of
evidence, in an. appeal against acquittal, it is not legally
sufficient that it is just possible for the High Court to
take a contrary view about the credibility of witnesses but
it is absolutely imperative that the High Court convincingly
finds it well-nigh impossible for the trial court to reject
their testimony. This is the quintessence of the jurispru-
dential aspect of criminal justice.
This is not a case where it can be said that the
Sessions Judge came to a palpably wrong conclusion on the
evidence or that the reasons for acquittal of the accused
are manifestly erroneous, shocking one’s sense of justice.
The High Court was not right in interfering with the acquit-
tal of the accused in this case. The appeal is, therefore,
allowed. The judgment of the High Court is set aside. The
accused shall be released from detention immediately.
P.H.P. Appeal
allowed.
75