TMI Blog1992 (1) TMI 361X X X X Extracts X X X X X X X X Extracts X X X X ..... r in the Veterinary Hospital, Budhni. He was residing in one of the quarters situated in the compound of the Veterinary Hospital. On the opposite side of the compound there are Government quarters, one of which was occupied by appellant Ram Pal Singh (Appellant HO. 2). who was serving as Gram Sevak in the Block Development office. He is married and distantly related to PW-6. The first appellant Chandra Mohan Tiwari was wielding high influence in that locality and was well known to the members of the family of PW-6. It appears that he contested the election to the Legislative Assembly from Budhni constituency. 3. The members of the family of PW-6 included PW-5 the deceased Saroj aged about 16 years, who are PW-6's wife and eldest daughter respectively. PW-6 had settled the marriage of his daughter Saroj at Dahiyapur, Etawah District (U.P.). On 24.5.1970 he along with his deceased daughter, Saroj, left Budhni for Bhopal enroute to Dahiyapur. At Bhopal he stayed with his relative by name Arjun Singh On 25.5.1970 at about 11.00 A.M. PW-6 had gone to the market leaving Saroj alone in the house. According to the prosecution, the second Appellant came to the house of PW-6 and told ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es punishable under Sections 363, 366 and 376 IPC. 4. The victim Saroj, when examined before the Magistrate on 12.7.1971 stated in her statement Ex. P/25 that she was kidnapped by both the appellants and wrongfully confined and also subjected to sexual intercourse and that she lodged the false report Ex. D/15 at the Hoshangabad police station under duress and as instructed by the second appellant herein. The Magistrate discharged the first appellant, and committed the second appellant alone to take his trial. On a revision preferred against the order of discharge of the first appellant both the appellants were put up for trial before the third Additional Sessions Judge, Bhopal in Sessions Case Nos. 66 and 95 of 1972 for offences punishable under Sections 363, 366 and 376 IPC. During the said trial both appellants were on bail. The case was fixed for recording evidence from 21.8.1972 on which date the victim Saroj was to be examined as a prosecution witness. While the matter stood thus, according to the prosecution, on 20.6.72 Saroj lodged a report Ex. P/7 at Budhni Police Station complaining that the second appellant had forcibly entered into the backyard of her house, but took ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tail through the judgment of the courts below, evidence of the prosecution as well as the defence witnesses and in particular Ex. D/15, the First Information Report dated 9.8.70 relating to the offence of kidnapping and rape registered on the basis of the complaint given by the deceased Saroj at Hoshangabad Police Station, vehemently submitted that the prosecution has miserably failed to prove the motive for the occurrence. The learned Counsel per fervidly advanced his argument inter-alia contending that the High Court has erred in reversing the judgment of the Trial Court based on well reasoned and considered findings of fact, ignoring the settled principles of law as laid down by this Court as regards the scope of interference of the High Court in an appeal preferred against an order of acquittal, that the evidence of PWs 5 and 6 who had developed rancor and were inimically disposed towards the appellants ought not to have been accepted and implicitly relied upon as their testimony is highly tainted with interestedness, that the contents of Ex. D-15 whereby the deceased had implicated Ram Nath Singh and one Indra Sen as assailants of kidnapping belie the version of PWs 5 and 6 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstitution envisages that an appeal shall lie to the Supreme Court from any judgment, final order or sentence in a criminal proceeding of a High Court in the territory of India if the High Court has on appeal reversed an order of acquittal of an accused person and sentenced him to death. To say in other words under Article 134(1)(a) the absolute right of appeal to the Supreme Court is restricted only to cases where the High Court reverses an order of acquittal passed by the Trial Court and awards the sentence of death. The right of appeal is also extended under Article 134(1)(b) to cases where the High Court has withdrawn for trial before itself any case from any court subordinate to its authority and has in such trial convicted the accused person and sentenced him to death, which type of cases are rare and infrequent occurrence. Under Clause (c) of the above said Article an appeal lies to the Supreme Court on a certificate under Article 134A by the High Court certifying that the case is a fit one for appeal to the Supreme Court but, of course, subject to the proviso to Article 134(1). 8. In this connection, it is pertinent to note that the Government of Madras (as then called) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve a right of appeal in such cases . The Law Commission, at the same time, was not in favour of extending this right of appeal in which the High Court has on appeal against acquittal sentenced a person to imprisonment for a term of 10 years or more, and proposed a new Section 417-B restricting such appeal to the Supreme Court only in cases of sentence of imprisonment for life. While so, the Joint Select Committee by its report dated 4th December, 1972 drafted Clause 379 (original Clause 389) of the CrPC Bill 1970 (page xxvi) which reads thus: The amendment has been made to bring the provision of the clause in line with the provisions of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970. 11. Vide the 14th Report of the Law Commission (at page 52) and the 41st Report of the Law Commission (paragraphs 31.65 to 31.69 at pages 281-283). 12. Section 2 of the Act of 1970 reads thus: 2. Enlarged appellate jurisdiction of Supreme Court in regard to criminal matters. Without prejudice to the powers conferred on the Supreme Court by Clause (1) of Article 134 of the Constitution, an appeal shall lie to the Supreme Court from any judgment, final order of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itself any case from any court subordinate to its authority and has in such trial convicted the accused person and sentenced him to imprisonment for life or imprisonment for a period of not less than 10 years. (5) Under Section 379 of the Code, which is now newly introduced in line with the Constitutional provisions of Article 134(1)(a) and (b) and with Section 2 of the Act of 1970, an appeal lies as of right to the Supreme Court in a case where the High Court has on appeal reversed an order of acquittal of an accused person and convicted and sentenced him either to death or to imprisonment for life or imprisonment for a term of 10 years or more. (6) In cases not covered by Article 134(1)(a) and (b) or Section 2(a) and (b) of the Act of 1970 or by Section 379 of the CrPC an appeal will lie only either on a certificate granted by the High Court under Article 134(1)(c) or by grant of special leave to appeal by the Supreme Court under Article 136. 15. The right of appeal given under Section 379 of the Code is in line/ with Article 134(1)(a) and (b) and Section 2(a) and (b) of the Act of 1970. 16. this Court in Podda Narayana and Ors. v. State of Andhra Pradesh, AIR 1975 SC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt is not reasonably sustainable, on the evidence on record, the Appellate Court will interfere with an acquittal. If the Appellate Court sets aside an acquittal and convicts, we have to be satisfied, after examining the prosecution and defence cases and the crucial points emerging for decision from the facts of the case, that the view taken by the Trial Court, on evidence on record, is at least as acceptable as the one taken by the High Court, before we could interfere with the High Court's judgment. 21. Kailasam, J. speaking for the Bench in Bhajan Singh and Ors. v. State of Punjab, 1979 CriLJ 7 dealing with the scope of the appeal before the Supreme Court filed under Section 2(a) of the Act of 1970 observed thus: As a court of appeal this Court has got to go into all the questions of fact and law and decide the case on its merit. After a right of appeal has been provided under the said section, the question, whether the High Court interfered on sufficient ground or not, will not be material, as this Court has to decide the case on its own merits. The decisions, regarding the scope of appeal against an acquittal, the powers of the High Court to interfere in an appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the murder: There is overwhelming evidence both oral and documentary in clearly establishing a strong motive for the appellants/accused to put an end to the life of the deceased Saroj, who when examined before the Magistrate on 12.7.1991 had deposed under Ex. P/25 that she was kidnapped by both the appellants, wrongfully confined and subjected to sexual intercourse, though she initially lodged a report under Ex. D-15 on 9.8.70 at the Hoshangabad police station against some other persons exculpating these two appellants. Earlier to her examination before the Magistrate the deceased lodged a report Ex. P-7 on 20.6.1972 at Budhni police station complaining that the second appellant had forcibly entered into the backyard of her house and on her raising a cry he took to his heels. The trial of the case against both the appellants before the Additional Sessions Judge, Bhopal in Sessions Case Nos. 66 and 95 of 1972 under Sections 363, 366 and 376 IPC was fixed for recording the evidence of the victim in that case, namely, the deceased herein from 21.8.1972. Both the appellants were on bail in the case of kidnapping and rape during the period of the occurrence in question which occurr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ased Saroj were the inmates. According to these two witnesses by about 12 or . 12.30 mid-night PW-5 went out of the house by opening the main door to answer call of nature within the compound. Besides moon-light there was electric light within the compound. Added to that there was also electric light burning in the residential quarter of Doctor Sahib shedding light inside the compound of the scene house. PW-5 sighting the two appellants yelled out. She found the appellant Chandra Mohan Tiwari having a small gun and the second appellant Rampal Singh being armed with a farsa. On hearing the cry of PW-5, Saroj woke up. PW-6 who had earlier been awakened by his wife (PW-5) saw both the appellants entering into his house with their respective weapons. The deceased Saroj on seeing the two appellants hardly uttered 'Babaji'. Suddenly the first appellant fired a shot which hit Saroj. On receipt of the injury Saroj fell down on her cot. Thereafter both the appellants fled away. PW-5 witnessed both the appellants entering into the room and heard the sound of a gun shot and the appellants thereafter running out of the house. While PW-5 yelled out, PW-6 ran after the appellants up to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the victim and that they had animus towards the appellants. As dexterously emphasised by the Supreme Court on many occasions that interested witnesses are not necessarily false witnesses though the fact that those witnesses have personal interest or stake in the matter must put the Court on its guard, that the evidence of such witnesses must be subjected to close scrutiny and the Court must assess the testimony of each important witness and indicate the reasons for accepting or rejecting it and that no evidence should be at once disregarded simply because it came from interested parties. Vide Siya Ram Rai v. State of Bihar, 1973 CriLJ 155; Sarwan Singh v. State of Punjab., 1976 CriLJ 1757; Birbal v. Kedar [1977] 2 SCR 1; Gopal Singh v. State of U.P., 1980 CriLJ 832; Han Obulla Reddy and Ors. v. State of Andhra Pradesh 1980 CriLJ 1330; and Anvamddin and Ors. v. Shakoor and Ors. 1990 CriLJ 1269. 33. After carefully scanning the evidence of PWs 5 and 6, we unreservedly come to the conclusion that their evidence cannot be thrown overboard simply on the ground that their evidence is of the interested party because when the occurrence had taken place inside the house, that too at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rated by various other circumstances would in our opinion suffice to record a conviction against the appellants. The Trial Court appears to have gone wrong in jettisoning the entire evidence in a very scanty and unsatisfactory manner with unsound reasoning. The non-recovery of 'lota' (a small vessel for taking water) and the non-marking of the place where the said vessel was kept in the site plan are too tenuous and they do not in any way belittle the veracity of the prosecution case. The recovery of the pellets below the dead body and the cork, usually fixed on cartridges from the chest of the girl under the Memo Ex. P-4 as spoken by PWs 1 and 18 amply corroborate the evidence of PW-6 and support the prosecution case that the girl was shot dead in close range while she was on her bed. 37. Being the parents of the victim, they would be the least disposed to falsely implicate the appellants or substitute them in place of the real culprits. In our considered opinion, whilst the conclusion arrived at by the Trial Court abjuring the unimpeachable and reliable evidence of PWs 5 . and 6 on speculative reasons and unreasonable grounds, the contrary conclusion of the High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rejecting not only the plea of alibi but also the defence that these appellants were implicated on account of political rivalry. Medical Evidence: PW-17 who conducted autopsy on the dead body of the deceased found a lacerated wound on the chest just left to the mid-line at the level of nipple over the third, fourth and fifth inter-costal space. The wound was slightly oval shaped measuring 1-1/2 x 2 deep and opening into thoracic cavity. The surrounding skin was ecchymosis, but no tattooing of gun powder was noticed. The wound as described by the Doctor is a slit like small lacerated wound on the medial end of clavicle. On internal examination PW-17 he found comminuted fracture of sternum and second, third ribs of left side chest. There was a punctured wound on the medial border of left lung near its apex. He found one rounded pellet (which has been recorded as bullet, but has been clarified in the further chief examination as pellet which receives support from the evidence of PW-19, the ballistic expert) in the left cavity of the chest, embedded in the posterior wall of chest at scapular region at the level of second and third ribs. The Medical Officer is of the opinion tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shooting at her chest. No father, however grave be the provocation at the hands of his daughter would resort, in the normal course to kill his daughter or participate in any conspiracy to murder her. Moreover, there is no circumstance in the present case even feebly or remotely indicating that the inmates of the house were responsible for the cause of the death of the deceased. 45. In the spite of our best efforts and great deal of pondering over the matter, we find absolutely no reason, much less compelling reason to disagree with the conclusion of the High Court since the organic synthesis of the events, circumstances and facts of the case lead only to one conclusion, namely, that the prosecution has established that this preplanned and cold blooded murder, executed in very cowardly and dastardly manner at a helpless and defenceless young girl was perpetrated by the appellants. 46. We, quite apart from the reason of the High Court, even on our independent assessment and evaluations of the evidence hold that the finding of the Trial Court is not reasonably sustainable and that the prosecution has satisfactorily proved the guilt of the accused beyond any shadow of doubt and c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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