2003(1) Crimes 461 (SC)
Supreme Court of India
(From Allahabad High Court)
M.B. Shah & D.M. Dharmadhikari, JJ.
State of Uttar Pradesh —Appellant
versus
Ram Sewak & Ors. —Respondents
Criminal Appeal No. 530 of 1994
Decided on 18-12-2002

Very Important Point
Finding of acquittal of respondent Ram Sewak is perverse but findings of acquittal of other 4 co-respondents is plausible, therefore, acquittal of Ram Sewak for causing death of deceased, is reversed but of others is maintained by Apex Court in State’s appeal against acquittal.

Headnote:(i) Indian Penal Code, 1860—Sections 302/148 and 148—Unlawful assembly of 15 persons attacking to take revenge of past enmity—Five persons noticed by deceased, two eyewitnesses taking active part in attack—Dying declaration alleging gun shot by accused Ram Sewak hitting left shoulder of deceased—FIR promptly lodged—Injury corroborated by medical evidence—High Court dismissing dying declaration on ground of non-voluntary and outcome of possible tutoring by eye witnesses who were present—Eye witnesses discarded as inimical and interested—Plea of false implication on past enmity accepted—Appeal to Supreme Court—Whether High Court was right in its conclusion to acquit Respon­dent Ram Sewak? (No)—His acquittal set aside and conviction and life sentence by Trial Court restored.

       Held : We have heard learned counsel for the parties and gone through the evidence on record with meticulous care. We are also conscious of our limitations in deciding an appeal against acquittal. It is settled legal position that if a view taken by the Court recording verdict of acquittal is reasonable, this Court would not substitute its own view and reverse the verdict of acquittal into conviction. It is by keeping these limitations in our minds we have scrutinized the evidence. We find that the High Court has on very ­unsubstantial and minor infirmities, wrongly acquitted the accused. Accused Ram Sewak was clearly named both in the promptly lodged F.I.R. by eye-witness PW1, Chandrabhan Singh and in the dying declaration of the deceased. He was identified as having fired at the deceased causing bullet injuries on his left neck and shoulder. It is rarely to be found in a criminal case that the description of the incident and injury described in the dying declaration gets full corroboration from the medical evidence contained in Injury Report and Postmortem Report. After examining the evidence on record, we find that there was no justifiable reason for the High Court to have rejected such evidence of sterling quality like the dying declaration of the deceased and the First Information Report, promptly lodged. (Paras 13 and 14)

       Held further : We find that the aforesaid reasoning of the High Court for rejecting dying declaration is highly speculative and fallacious. (Para 16)

       In such circumstances, the High Court could not have on imagination discarded the dying declaration as not voluntary and an outcome of possible tutoring. (Para 17)

       Held thereafter : From the evidence discussed above, we find that apart from oral evidence, the evidence of dying declaration was clinching so as to fully establish active involvement of accused Ram Sewak. He was identified to have fired at the deceased and caused bullet injuries to the deceased which resulted in his death. (Para 23)

       Held later : It is true that this Court should be slow in interfering with the verdict of the acquittal but as found by us, in this case, a reasoned judgment of conviction of the Trial Court has been reversed by the High Court on unsubstantial grounds and merely on conjectures, it would be unjust not to interfere. [See: State of Punjab vs. Bura Singh, (1985 1 SCC 37) and State of U.P. vs. Gokaram, (1984 Suppl. SCC 482). See also: State of U.P. vs. Suresh (1981 3 SCC 635)]. The criminal jurisprudence no doubt requires a high standard of proof for imposing punishment on an accused, but it is equally important that on hypothetical grounds and surmises prosecution evidence of a sterling character should not be brushed aside and disbelieved to give undue benefit of doubt to the accused. On the evidence, as discussed above, the High Court was not justified in rejecting the dying declaration, evidence of PW1 Chander Bhan Singh who corroborated his promptly lodged FIR and court witness Jograj Singh. We, therefore, find ourselves fully justified in upsetting the acquittal of accused Ram Sewak and confirming the judgment of conviction and sentence passed against him by the Trial Judge. (Para 26)

       (ii) Indian Penal Code, 1860—Sections 302/148 and 148—Offences under—Fifteen persons tried—Trial Court acquitted 10 but convicted 5—High Court acquitted all—In appeals, Supreme Court found Ram Sewak respondent causing death and other four accused assigned participation by an omnibus statement in FIR and dying declaration—Whether acquittal of other four respondents, apart from respon­dent Ram Sewak, needs any interference? (No)—State’s appeal against them dismissed—Ordered accordingly.

       Held : So far as other four accused are concerned, both in the F.I.R. and in the dying declaration there is an omnibus statement against them to have been members of unlawful assembly who fired at the house of the complainant. There is no other evidence of actual part played by them. There is no evidence also to infer any common intention on their part with accused Ram Sewak. For the reason aforesaid we allow this appeal only as against respondent-accused Ram Sewak and restore the judgment of conviction and sentence passed against him by the Trial Court. The appeal as against the other co-accused is hereby dismissed. The bail bond furnished by the accused Ram Sewak is hereby cancelled and he be taken into custody for his imprisonment as directed by the Trial Court. (Para 27)