KHEM KARAN AND OTHERS versus THE STATE OF U.P. AND ANOTHER

J.-This appeal by special leave, by three out of twenty three, who alone were convicted by the High Court in .reversal of a total aoquittal by the trial court, turns on the propriety of the Court of _Appeal convicting accused persons whose initial advantage of a presumption of innocence has been strengthened by a judicial affir.mation at the first level.

p. 864, margin A

The !ew facts are these. Two groups-the complainants' and the accused's-have been on terms of bitter hostility-a background mate· rial ,\~hich has kgitimately induced both the courts to be very sceptical about the veracity of the prosecution witnesses in the absence of unlying corroborat10n. As found by both the courts, a confron" talion and· exchange of violence occurred on June 22, 1964 each party caliing the other aggressor. Anyway, ·several on the prosecution side. dia receive gunshot wounds, although luckily not fatal, and three among the accused bunch had on their person lathi blow injuries. The trial Judge disbelieved the version of the defence but found the P.Ws. too partisan to pin his faith on, and in consequence acquitted everyone. The High Court agreed that unless the infirmity of interested testimony was cur,d by other credible evidence the fate of the case would be the· same and on that basis dismissed the State's appeal against ali but the three appellants befor-e us. Was this exceptional treatment justified (a) by the evid_ence, and (bl in the light cf first court's acquittal ?

p. 864, margin B

.An encounter did take place and a case and counter-case ensued. The accused-except a few· who pleaded alibi in vain-daimed that faey were attacked. Even the trial court has rejected this contention 1nd the High Court has held that, having regard to the number and nature of injuries an:d the number of persons who bave been hit by fire power, the accused were the attackers. We see no reason to disturb this conclusion. Even so, how could you hand-pick three out cf twentr three for · punishment? The complainant's plea is that when attacked by guns he and his men went at them, disarmed them and boat them with lathis. The convkted three have injnries which ·fit in with this version. The appellate Court has taken these injuries :is corroborative of participation in the rioting and attempt to murder (reod with s. 149, J.P.C.) charged against all the accused. The short question is whether these wound bring home the guilt so .strongly as to warrant upsetting of an earlier acquittal. : . · · The principle of law is well-settled that merely because a differeni view of the evidence is possible--minds differ as rivers differyou cannot cancel a finding against guilt. But the appellate Court is untrammelled in its power to re-evaluate the evidence bearing in mind · the seriousness of overthrowing an acquittal once recorded. In that view we cannot find any error of law in the High Court rec:onsidering the probative value of the oral and circumstantial evidence in the case. Nor are we persuaded to think that the appellate Court has failed to observe the bui!Hn restraints on exercise ol power while l!psdting an acquittal. On the other lund. the Cour< has made the correct approach that only those accused against whom there was additional probative reinforcement could· be convicted. So, it found.

pp. 864–865, margin E

that the injuries on the persons of the three appellants and the fact . that Si ya Ram, appellant No. 2, had a gun in his hands at the time of the occurrence were sufficient, together with the other evidence, to hole the appellants guility.

p. 865, margin A

We cannot part with this case without mentioning the serious error sonie subordinate courts commit in. the application of the rule of benefit of reasonable doubt. For instance, in the preocnt case the learned Sessions· Judge has misguided himself by chasing bare possibilities 6l' doubt and exalting them into sufficiently militating factors justifying acquittal. The following passage illustrates the grievous mistake of the learned Judge :

p. 865, margin B

"I must concede that probabilities for such a situation are remote but possibilities cannot be ruled out. We hav~ to see whether the incident took place in the manner as alleged by the prosecution or not. To inspire confidence of _ the Court the prosecution has to establish each link in its version beyond all doubts. When other links in the prosecution, as discussed above; have failed to inspire confidence, I think in such a case the benefit of doubt prevailing around the remaining links in the version must go to the accus-

p. 865, margin C

ed." Neither mere possibilities. nor remote probabilitie~ nor mere doubts which are not reasonable can, without danger to the admhllstration of justice, be the foundation · cif the acquittal of art accused person, if there js other}Yise fairly credible testimony. If a trial court's judgment verges on the perverse, the .appellate court_ has a duty to set the evaluation right and that is about all that has happened in this case. The High Court has given a large margin for reasonable donbt and confirmed the acquittal of a considerable number of the accused. -- --~

p. 865, margin E

Although the surviving accused who have been convicted are only three, s. 149, and in any case s. 34, I.P.C., will rope in the appelants by way of constructive liability. This Court has, in Sukh Ram v. State of U.P.,( held that the acquittal of two ·out of three named accused does not bar the conviction of the third under s. 302, read with s. 34, if he is shown to have . committed the offence with unknown companions. As in that case, here also no possible prejudice can be claimed by the accused-appellants by the invocation of s.34, LP.C., even if tw~n!y out of twentv three have been acquitted. Moreover, this Court has in Bharwad Mena Dana v. State of, Bombay(2)

p. 865, margin F

(I) (1962] 2 SCR J72. . · taken the view that nothing in .law prevents the .court from fin.cling that the unlawful assembly consisted of less than five convicted persons and some unidentified persons together numbering more than !iv,.._ In: our ·view, the fact that a large number of accused have been acquitted and the remaining who have been convicted are less than five cannot vitiate the conviction under s. 149 read with the substantive offence if-as in this case the Court has taken care to find- there are other persons who might not· have be-on identified or convicted but were party to the crime and together cc/nstituted the statu'.ory number. On this basis, the conviction under s. 307, read with s. 149, has to be sustained.

pp. 865–866, margin H

What remains is the Question of sentence. It is true that those assailants who did not receive injuries have escaped punishment aed conviction has been clamped down on those who have sustained inju· ries in the course of the clash. It is equally true that those who have allegedly committed the substantive offences have jumped the gauntlet of the law and the appellants have been held guility only con,._ trUctively. We also notice that the case has been pending for around ten years and the accused must have been in jail for some time, a circumstance which is relevant under the new Criminal Procedure Code rhou~ it has come iriJ.i.i operation only from April 1, 1974. Taking a conspectus of the 'Various circumstances in the case, some of which are indicated above, we are satisfied that the ends of justice would bo met by reducinii· the sentence to three years rigorous imprisonment under s. 307, read with s. 149, and one yeacrigorous impri<onment under s. 147, I.P.C., the two terms running concurrently. \ViL'i this modification regarding sentence, we dismiss the appeal. S.B.W. Appeal dismissed.

p. 866, margin B