Case Note & Summary
The Supreme Court heard four criminal appeals by special leave arising from a political rivalry murder in Dataganj, District Budaun, Uttar Pradesh. The incident occurred on May 27, 1971, during election campaigning for the Town Area Committee. Tribeni Sahai, a sitting Member of the U.P. Legislative Assembly elected on Congress (R) ticket, and Radhey, his bodyguard, were shot dead. The accused belonged to rival political parties: Balak Ram, Nathoo and Banney Khan were from Congress (O), while Dr. R.P. Kohli was local President of Jan Sangh. Balak Ram was contesting for Chairmanship of the Committee as Congress (O) nominee against Dharam Pal of Congress (R). The District Magistrate had promulgated an order under Section 144 CrPC prohibiting assembly of more than five persons and carrying arms, but Balak Ram led a procession defying this order. The prosecution alleged that at about 9:15 p.m., the accused and followers confronted Tribeni Sahai and Radhey, raised offensive slogans, and on exhortation by Dr. Kohli, Banney Khan and Pearey Mian, Balak Ram fired a shot at Tribeni Sahai. When Radhey ran to protect him, Balak Ram, Nathoo and Dr. Kohli fired further shots, killing Radhey and injuring Jhilmili and Ram Prakash. Balak Ram was carrying a licensed pistol, Nathoo a pistol, and Dr. Kohli a licensed revolver. The Sessions Judge, Budaun, convicted Balak Ram under Section 302 IPC and sentenced him to death, also convicting him under Section 337 read with Section 149 IPC for injuries and under Section 148 IPC. The other five accused were acquitted. The High Court of Allahabad by judgment dated December 22, 1972, confirmed Balak Ram's conviction and death sentence, altered his conviction under Section 337/149 to Section 307/149 IPC, and in the State appeal against acquittal, convicted Nathoo, Dr. R.P. Kohli and Mohd. Sayeed Khan @ Banney Khan under Sections 302/149 and 307/149 IPC, with further convictions under Sections 148 and 147 IPC. Kailash's acquittal was confirmed; Pearey Mian died during pendency. The convicted accused filed four separate appeals by special leave to the Supreme Court. The appellants contended that the High Court had no sufficient reasons for interfering with the order of acquittal and that the High Court erred in upholding Balak Ram's conviction and death sentence. The Supreme Court allowed the appeals of Nathoo, Dr. R.P. Kohli and Banney Khan, holding that the High Court had failed to apply correctly the principles governing appeals against acquittal. The Court reiterated that if two views of the evidence are reasonably possible, the High Court ought not to interfere with the trial court's acquittal. The Court also highlighted the prosecution's duty to examine material witnesses, noting that the F.I.R. mentioned Loki, Ganga Ram and Aryendra as eyewitnesses but Loki and Ganga Ram were not examined, and the public prosecutor's uncorroborated assertion that Loki had been won over was insufficient. The Court further held that evidence of witnesses whose statements were recorded under Section 164 CrPC must be approached with caution because such witnesses feel tied to their previous statements. On Balak Ram's appeal, the Court dismissed it, holding that under Article 136, the Supreme Court does not interfere with concurrent findings of fact in criminal appeals save in exceptional circumstances. The Court noted that the High Court in a reference for confirmation of death sentence under Section 374 CrPC must examine the entire evidence independently, including alibi evidence, but the alibi evidence of D.W. 7 and D.W. 9 was rightly rejected by the trial court. Accordingly, the Supreme Court upheld Balak Ram's conviction and death sentence, restored the Sessions Court's acquittal of the other three appellants, and set aside their convictions and sentences.
Headnote
A) Criminal Appeal - Appeal Against Acquittal - Two Views Reasonable - Code of Criminal Procedure, 1898, Section 378 - High Court ought not to interfere with trial court's acquittal if two views of evidence are reasonably possible - High Court's powers in appeal against acquittal are as full and wide as in appeals against conviction, but such interference is impermissible when the Sessions Court's conclusion is reasonable - Held that the High Court erred in convicting Nathoo, Dr. R.P. Kohli and Banney Khan because two views were reasonably possible on their participation B) Criminal Trial - Examination of Material Witnesses - Duty of Prosecution - Indian Evidence Act, 1872 - Prosecution has duty to examine witnesses necessary for unfolding its case - The F.I.R. mentioned Loki, Ganga Ram and Aryendra as eyewitnesses, but Loki and Ganga Ram were not examined; the public prosecutor's assertion that Loki was won over by defence was unsupported by any data and insufficient to absolve the prosecution - Held that non-examination of material witnesses affected prosecution case C) Criminal Trial - Appreciation of Evidence - Witnesses Recorded Under Section 164 CrPC - Code of Criminal Procedure, 1898, Section 164 - Evidence of witnesses whose statements are recorded under Section 164 must be approached with caution - Such witnesses feel tied to their previous statements given on oath and have only theoretical freedom to depart from earlier version - Held that the High Court overlooked this caution while accepting prosecution witnesses whose statements were recorded under Section 164 D) Constitution of India - Special Leave Jurisdiction - Concurrent Findings of Fact - Constitution of India, 1950, Article 136 - Supreme Court does not interfere with concurrent findings of fact in criminal appeals save in exceptional circumstances - Normally High Court is final court of appeal and Supreme Court is only a court of special jurisdiction - Held that reappraisal of evidence is not permissible unless forms of legal process are disregarded or principles of natural justice violated or substantial injustice resulted E) Code of Criminal Procedure - Death Sentence Confirmation - Duty of High Court - Code of Criminal Procedure, 1898, Section 374 - In reference for confirmation of death sentence, High Court must examine entire evidence for itself, independent of Sessions Court - The High Court ought to have considered the alibi evidence led by Balak Ram for what it was worth - Held that High Court's independent examination requires consideration of all evidence, including alibi witnesses
Issue of Consideration
Whether High Court was justified in setting aside acquittal of three accused when two views reasonably possible; whether prosecution's non-examination of material witnesses was fatal; whether evidence of witnesses recorded under Section 164 CrPC was properly appreciated; whether Supreme Court should interfere with concurrent findings; whether High Court properly examined entire evidence in death sentence confirmation reference
Final Decision
Appeal of Balak Ram dismissed, upholding his conviction under Section 302 IPC, death sentence, and modified conviction under Section 307/149 IPC. Appeals of Nathoo, Dr. R.P. Kohli, and Mohd. Sayeed Khan @ Banney Khan allowed, setting aside their convictions and sentences and restoring the Sessions Court's order of acquittal.
Law Points
- High Court should not interfere with acquittal when two views reasonably possible
- prosecution must examine material witnesses
- evidence of witnesses under Section 164 CrPC to be approached with caution
- Supreme Court under Article 136 does not reappraise concurrent findings except in exceptional circumstances
- High Court in death sentence reference must independently examine entire evidence
