Kanhaiya Lal Vs State of Rajasthan

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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1108 OF 2006

Kanhaiya Lal & Ors. ...……..Appellants

Versus

State of Rajasthan ………Respondent

WITH

CRIMINAL APPEAL NO. 1109 OF 2006

State of Rajasthan …......Appellant

Versus

Mangi Lal ………Respondent

WITH

CRIMINAL APPEAL NO. 1110 OF 2006

State of Rajasthan …......Appellant

Versus

Mohan Lal and others ……… Respondents

WITH

CRIMINAL APPEAL NO. 1111 OF 2006

State of Rajasthan …......Appellant

Versus

Babu Lal ………Respondent

WITH

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CRIMINAL APPEAL NO. 1112 OF 2006

State of Rajasthan …......Appellant

Versus

Revdi Lal and others ……… Respondents

J U D G M E N T

Dipak Misra, J.

The case of the prosecution depicts a macabre chain

of events that occurred in the intervening night of 28th and

29th June, 2001 which eventually led to the massacre of

five persons, namely, Purshottam, Ram Kumar Dhaka,

Kalu Lal Mali and Lokendra Sharma, all residents of village

Railgaon, and Heera Lal Meghwal, resident of Rampuria,

Kota. The extermination of five lives had its genesis in an

incident that had occurred sometime prior to the date of

occurrence where Kishan Chand, son of Ram Narayan,

Sarpanch of the village, was murdered and the father

nurtured deep rooted suspicion that the deceased persons

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had not only masterminded a well thought out plan but

also executed the same and the seeds of the unquenched

anger gradually got inflamed and took the shape of

revenge ultimately resulting in the extinction of the life-

spark of five persons. From the uncurtaining of the

gruesome events, it is manifest that on the date of the

occurrence, the night slowly and intensely developed into

real darkness of revenge that reigned with avenge.

Revenge, the pleasure of morbid minds, knows no bounds

and the accused persons, clinging to the fire of revenge,

possibly thinking it to be sweetest thing to relish, marched

ahead on the escalator of bitterness and the ultimate

eventuate was five deaths, trial of 29 persons and

conviction of 17 accused out of which six accused persons,

namely, Yuvraj, Hemraj, Hansraj, Radhey Shyam, Modu

Nath and Mohan were imposed death sentence and the

rest 11 accused, namely, Lal Chand, Dhanpal, Kanyaiyalal,

Naval, Revdi Lal, Ram Lal, Babu Lal, Mangi Lal,

Ghanshyam, Radhey Shyam s/0 Prahalad, and Radhey

Shyam s/o Shankar Lal, were sentenced with rigorous

imprisonment of life by the learned Additional Sessions

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Judge, Fast Track, in Sessions Case No. 27 of 2002. Be it

noted, the rest of the accused persons were acquitted of

the charges.

2. As is demonstrable, all the accused persons were

sent up for trial for offences punishable under

Sections 147, 148, 302, 342, 427, 435 and 460 read

with 149 IPC. Filtering the unnecessary details, the

facts which are necessitous to be stated for disposal

of these appeals are that on 28.6.2001, about 5.00

p.m., Purshottam, brother of the informant, Ram

Kumar Dhakad, Kalu Lal Mali, Lokendra Sharma, and

Heera Lal Meghwal had come on two motorcycles to

the house of Purshottam and no sooner had they

arrived in the village than Ram Narayan, Mohan Lal,

Yuvraj, Hansraj, Lalchand, Dhanpal, Kanhaiya Lal,

Naval, Revdi Lal, Hemraj, Radhey Shyam s/o Gopal,

Bhojraj, Ramesh Chand, Ram Singh, Babu Lal Meena,

Mangilal, Ghanshyam, Radhey Shyam s/o Prahalad,

Modulal, Radhey Shyam s/o Shankar Lal, Jagdish,

Shambhu Dayal, Amar Lal and Sita Ram along with

15-20 others came being armed with Gandasis,

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Swords, Sabals and sticks. They surrounded the

house of Purshottam who was in the house along

with children. The accused persons scaled the house

of Purshottam and started pelting stones as a

consequence of which the roof sheets and the tiles of

the house of Purshottam were broken. Purshottam

and his four other companions jumped the common

wall situate in between the houses of Purshottam and

Radhey Shyam, brother of Purshottam, and stayed in

one room of the informant. As the evening

progressed, the evil designs became more animated

and the deadly desires sprang into action and at

midnight, the accused persons took the informant,

his wife Badribai, mother Panabai and Nirmala Bai,

wife of Purshottam, and made them sit in the

thatched roof of one Prabhulal Meena. Almost after

half an hour, the relatives of Ram Narayan Gujjar,

Sarpanch of the said village, came in a jeep along

with 15-20 persons in front of the house of the

informant, broke open the door, entered the house

and, in the house itself, inflicted blows with Swords,

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Gandasis and sticks, as a result of which Kalu Lal

Mali, Lokendra Sharma and Heera Lal Meghwal

breathed their last inside the house. The accused

dragged Purshottam and Ram Kumar outside and

assaulted them with Gandasis and swords on their

heads, faces, hands and feet and, eventually, those

two succumbed to their injuries. They took both the

motorcycles in the passage and burnt the same and,

after the inhumane and barbaric act, left the scene.

3. The FIR, as is perceptible from the material brought

on record, was not lodged immediately but was

lodged at 6.45 a.m. on 29.6.2001. During

investigation, the investigating agency prepared the

site plan, got the autopsy done in respect of the dead

bodies, seized the blood stained clothes, recorded

the statements of the witnesses and, on the basis of

the information furnished by the accused persons,

while they were in custody, recovered the weapons

used in the commission of the crime and, after

following the other formalities of investigation,

submitted the charge-sheets on different dates

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before the Judicial Magistrate, Digod, who, in turn,

committed the matter to the Court of Session. After

committal of the case to the Court of Session, the

learned trial Judge, on 3.4.2002, framed charges

under Sections 147, 427, 435, 148, 302, 460 and 342

IPC and in respect of 435/149 IPC against accused

numbers 1, 5-9, 11, 12, 16, 21, 23, 24 and 26. As far

as the other three sets of accused persons are

concerned, almost similar charges were framed on

21.09.2002. The accused persons denied their

involvement in the crime, pleaded innocence and

claimed to be tried.

4. In order to substantiate the offences against the

accused persons, the prosecution examined 45

witnesses, got number of documents exhibited and

various material objects marked. The accused

persons in their defence examined 15 witnesses.

5. The learned trial Judge formulated four questions,

namely, whether the accused in furtherance of the

common object caused the death of the deceased

persons and assaulted the other persons; whether all

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of them by throwing stones on the house of

Purshottam and burning the Motorcycles in

possession of the deceased persons committed

mischief; whether the accused persons with common

object to commit murder of the deceased persons

committed lurking trespass into the house of Radhey

Shyam in the night; and whether the offences were

committed by all the accused persons. The learned

trial Judge addressed the questions one to three, as

formulated by him, in a composite manner and,

appreciating the evidence on record, came to hold

that the accused Mohan Lal, Yuvraj, Hansraj, Hemraj,

Radhey Shyam s/o Gopal and Modu Nath were guilty

of the offences under Sections 148, 427, 342, 460

and 302 IPC and, accordingly, convicted them to

undergo three years rigorous imprisonment and a

fine of Rs.500/-, two years rigorous imprisonment and

a fine of Rs.500/-, one year rigorous imprisonment

and a fine of Rs.500/-, ten years rigorous

imprisonment and a fine of Rs.2000/- and death

sentence respectively with further stipulation of

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consequences in default of payment of fine

respectively. Accused Lal Chand, Revdi Lal,

Ghanshyam and Radhey Shyam, s/o Prahlad, were

convicted for offences punishable under Sections

148, 427, 342, 460 and 302/149 IPC and sentenced

to suffer rigorous imprisonment for three years and a

fine of Rs.500/-, two years rigorous imprisonment and

a fine of Rs.500/-, one year rigorous imprisonment

and a fine of Rs.500/-, ten years rigorous

imprisonment and a fine of Rs.2000/- and life

imprisonment and a fine of Rs.2000/- respectively

with the consequences enumerated in case of default

of payment of fine respectively. Accused Dhanpal,

Kanhaiya Lal, Naval, Ram Lal, Babu Lal, Mangi Lal,

Radheysham and four others were found guilty of the

same offences and imposed various sentences with a

default clause. The maximum sentence was

imprisonment for life and a fine of Rs.2000/- under

Section 302/149 IPC. The rest of the accused stood

acquitted.

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6. At this juncture, it is worth mentioning that Ram

Narayan, Sarpanch of the village Railgaon, who was

sent up for trial, expired during the pendency of the

trial and, accordingly, the trial was closed against

him.

7. The accused appellants preferred seven criminal

appeals, namely, Criminal Appeal Nos. 464 of 2003,

421 of 2003, 621 of 2003, 622 of 2003, 670 of 2003,

474 of 2003 and 520 of 2003. The State represented

its case in Death Reference No. 1 of 2003, but did not

question the defensibility of the acquittal recorded

against 11 other accused persons. The accused-

appellants before the High Court assailed the

conviction in respect of all the offences and the

sentence and the State defended the judgment

passed by the court below.

8. The Division Bench of the High Court dealt with all

the appeals and disposed all of them by a singular

judgment dated 2.6.2005. The High Court,

appreciating the evidence, scrutinizing the material

on record and bestowing anxious consideration while

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dealing with the submissions canvassed by the

learned counsel for the parties, partly allowed the

appeals preferred by Mohan Lal and others, who were

convicted under Sections 302 and 460 IPC and

sentenced to death, acquitted Mohan Lal of the

charges framed against him under Sections 302 and

460 IPC and as far as the other accused persons of

the same category are concerned, the sentence of

death was converted to life sentence and,

resultantly, the death reference was declined. The

accused persons, namely, Lal Chand, Revdi,

Ghanshyam, Radhey Shyam, Mangilal and Babulal

were given benefit of doubt and acquitted of the

charges framed against them under Sections 302 and

460 IPC. As far as the other accused persons,

namely, Kanhaiyalal, Naval, Ram Lal and Radhey

Shyam, s/o Shankar Lal, are concerned, the

conviction and sentence imposed by the trial court

was maintained.

9. The High Court, on x-ray of the evidence, came to

hold that all the deaths were homicidal; that

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imposition of death sentence by the learned trial

Judge was not justified; that there was no

unexplained delay in lodging the FIR; that the

provisions enshrined under Section 149 of IPC were

clearly attracted to the case at hand; that the plea of

the defence that the prosecution had chosen only the

relatives of the deceased persons who are highly

interested witnesses and, hence, their version did not

deserve acceptance was without any merit; that the

whole crime was committed in a planned design; that

the proponement that no independent witnesses had

been examined was bereft of any substratum

because the witnesses could not have dared to

depose against the Sarpanch who, on mere

suspicion, had set himself on such a massacre and

self-preservation being the basic instinct in such a

situation had ruled supreme; that Dhanpal s/o Ram

Pratap, accused no. 5 before the High Court, having

expired, appeal at his instance abated; that the

involvement of Lalchand, Revdi Lal, Ghanshyam,

Radheyshyam s/o Prahlad, Mangi Lal, Babu Lal, and

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Mohan was doubtful and, accordingly, they deserved

to be acquitted; that the other accused-appellants

were involved in the commission of crime and,

therefore, the conviction under Section 302 could not

be interfered with. As far as the death reference is

concerned, it opined that it is not a rarest of rare

case warranting imposition of death sentence and,

accordingly, modified it to rigorous life imprisonment.

Recording such conclusions, the High Court disposed

of the bunch of appeals.

10. We have heard Mr. Sushil Kumar Jain, learned

counsel for the accused-appellants in Criminal Appeal

No. 1108 of 2006, and Mr. Imtiaz Ahmed, learned

counsel for the State in all the appeals.

11. The first submission of Mr. Jain is that the prosecution

version deserves to be thrown overboard inasmuch

there is delay in lodging of the FIR and the

explanation offered for such delay is unacceptable,

regard being had to the duration of the occurrence,

proximity of the police station and the implication of

number of accused persons which is indicative of

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embellishment. Learned counsel would further

contend that innocent persons were dragged into

trial and suffered immensely and hence, such a story

should not be given credence to.

12. It is settled in law that mere delay in lodging the First

Information Report cannot be regarded by itself as

fatal to the case of the prosecution. However, it is

obligatory on the part of the court to take notice of

the delay and examine, in the backdrop of the case,

whether any acceptable explanation has been

offered, by the prosecution and if such an

explanation has been offered whether the same

deserves acceptance being found to be satisfactory.

In this regard, we may refer with profit a passage

from State of H.P. v. Gian Chand1, wherein a

three-Judge Bench of this Court has expressed thus: -

“Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the court on its guard to search if any explanation has been offered for the delay, and if offered, whether it is

1 (2001) 6 SCC 71

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satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is a possibility of embellishment in the prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case.”

13. In Ramdas and others v. State of Maharashtra2,

this Court has observed that mere delay in lodging

the first information report is not necessarily fatal to

the case of the prosecution. However, the fact that

the report was lodged belatedly is a relevant fact of

which the court must take notice. This fact has to be

considered in the light of other facts and

circumstances of the case, and, in a given case, the

court may be satisfied that the delay in lodging the

report has been sufficiently explained. In the light of

the totality of the evidence, the court has to consider

whether the delay in lodging the report adversely

affects the case of the prosecution. That is a matter

of appreciation of evidence. There may be cases

where there is direct evidence to explain the delay.

2 (2007) 2 SCC 170

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Even in the absence of direct explanation, there may

be circumstances appearing on record which provide

a reasonable explanation for the delay. There are

cases where much time is consumed in taking the

injured to the hospital for medical aid and, therefore,

the witnesses find no time to lodge the report

promptly. There may also be cases where on account

of fear and threats, witnesses may avoid going to the

police station immediately. The time of occurrence,

the distance to the police station, mode of

conveyance available, are all factors which have a

bearing on the question of delay in lodging of the

report. It is also possible to conceive of cases where

the victim and the members of his or her family

belong to such a strata of society that they may not

even be aware of their right to report the matter to

the police and seek legal action, nor was any such

advice available to them.

14. In Meharaj Singh v. State of U.P.3, a two-Judge

Bench of this Court has observed that FIR in a

3 (1994) 5 SCC 188

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criminal case and particularly in a murder case is a

vital and valuable piece of evidence for the purpose

of appreciating the evidence led at the trial and the

object of insisting upon prompt lodging of the FIR is

to obtain the earliest information regarding the

circumstance in which the crime was committed,

including the names of the actual culprits and the

parts played by them, the weapons, if any, used, as

also the names of the eyewitnesses, if any, for delay

in lodgment of the FIR results in embellishment which

is a creation of afterthought. Emphasis was laid on

the fact that on account of delay, the FIR not only

gets bereft of the advantage of spontaneity but also

danger of introduction of a coloured version or

exaggerated story.

15. Thus, whether the delay creates a dent in the

prosecution story and ushers in suspicion has to be

gathered by scrutinizing the explanation offered for

the delay in the light of the totality of the facts and

circumstances. Greater degree of care and caution is

required on the part of the court to appreciate the

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evidence to satisfy itself relating to the explanation

of the factum of delay. In Kilakkatha Parambath

Sasi and others v. State of Kerala4, it has been

observed that when an FIR has been lodged

belatedly, an inference can rightly follow that the

prosecution story may not be true but equally on the

other side, if it is found that there is no delay in the

recording of the FIR, it does not mean that the

prosecution story stands immeasurably

strengthened.

16. The present factual scenario is to be tested on the

touchstone of the aforesaid principles. On a careful

perusal of the material on record, it is clear as crystal

that the occurrence had taken place at night. True it

is, the house of Purshottam was surrounded

sometime at 5.00 p.m. on 28.6.2001, but the real

crime, the assault and the murder took place after

midnight. The ghastly and gruesome crime must

have sent a shiver in the spine and shattered the

brains and bones of the witnesses to the crime and

4 AIR 2011 SC 1064

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shock, panic and inequilibrium would have reigned

simultaneously to leave them totally confounded. No

one could have dared to move an inch towards the

police station, for man’s basic instinct prompts him to

survive first and then think about any other action.

The informant, brother of the deceased, has clearly

deposed that he and others were in a terrible state of

trauma to proceed to the police station to lodge an

FIR. After the day broke, they mustered courage and

proceeded towards the police station and lodged the

FIR at 6.45 a.m. on 29.6.2001. The learned counsel

for the appellants would contend that they could

have lodged the FIR when the house was seized and

not after the whole episode was over. We are not

impressed by the said submission and we think that

the explanation offered, by no stretch of imagination,

can be regarded implausible. As noticed earlier, a

delayed FIR can usher in craftsmanship, manipulation

and embellishment and may make the prosecution

story vulnerable, but when the delay has been

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adequately explained, the same deserves

acceptation and, accordingly, we do so.

17. The next limb of argument of Mr. Jain, learned

counsel for the appellants, is that all the alleged eye

witnesses are closely related to the deceased

Purshottam and the prosecution has chosen not to

examine any independent witness despite number of

houses situate in the close vicinity of the house of

Purshottam and that itself creates a dent in the

version of the prosecution. When relatives, who are

alleged to be interested witnesses, are cited by the

prosecution, it is the obligation of the court to

scrutinize their evidence with care, caution and

circumspection. In the case at hand, the entire

occurrence took place in and around the house of

Purshottam. Five people had been done to death. In

such a circumstance, it is totally unexpected that

other villagers would come forward to give their

statements and depose in the court. It is to be borne

in mind that Ram Narayan, Sarpanch of the village,

solely on the basis of suspicion, had seen to it that

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five persons meet their end. Such a situation

compels one not to get oneself involved and common

sense give consent to such an attitude. Thus, no

exception can be taken to the fact that no

independent witness was examined. As far as the

relatives are concerned, Radhey Shyam, PW-1, is the

brother of the deceased, Ram Lal, PW-2, is the

brother of Radhey Shyam, Panna Bai, PW-3, is the

mother of Purshottam and Nirmala Bai, PW-5, is his

wife, and Anita, PW-5, Badribai, PW-8, Manisha, PW-9

and Kaushalya, PW-10, are also close relatives and

these witnesses have been cited as eye witnesses.

18. In Hari Obula Reddy and others v. The State of

Andhra Pradesh5, a three-Judge Bench has opined

that it cannot be laid down as an invariable rule that

interested evidence can never form the basis of

conviction unless corroborated to a material extent in

material particulars by independent evidence. All

that is necessary is that the evidence of the

interested witnesses should be subjected to careful

5 (1981) 3 SCC 675

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scrutiny and accepted with caution. If on such

scrutiny, the interested testimony is found to be

intrinsically reliable or inherently probable, it may, by

itself, be sufficient, in the circumstances of the

particular case, to base a conviction thereon.

19. In Kartik Malhar v. State of Bihar6, this Court has

stated that a close relative who is a natural witness

cannot be regarded as an interested witness, for the

term “interested” postulates that the witness must

have some interest in having the accused, somehow

or the other, convicted for some animus or for some

other reason.

20. In the case at hand, the witnesses have lost their

father, husband and a relative. There is no earthly

reason to categorise them as interested witnesses

who would nurture an animus to see that the accused

persons are convicted, though they are not involved

in the crime. On the contrary, they would like that

the real culprits are prosecuted and convicted. That

is the normal phenomena of human nature and that

6 (1996) 1 SCC 614

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is the expected human conduct and we do not

perceive that these witnesses harboured any ill

motive against the accused persons, but have

deposed as witnesses to the brutal incident. We may

proceed to add, as stated earlier, that this court shall

be careful and cautious while scanning their

testimony and we proceed to do so.

21. Radhey Shyam, the informant, has deposed with

regard to the threat, climbing of some of the accused

on the roof, surrounding of the house, pelting of

stones, carrying of lethal weapons like swords,

gandhasis, sabals and sticks, the assault inside the

house, dragging of the two deceased persons and the

ultimate death of the deceased. The plea that he

could not have witnessed the incident as it was night

and he was inside a thatched house (chhappar), has

been disbelieved by the learned trial Judge as well as

by the High Court. Mr. Jain, learned counsel for the

appellants, made a fragile attempt to highlight that

he could not have seen the assault, but on a scrutiny

of the evidence, it is manifest that there was not

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complete darkness, as an electric bulb was burning

at that time and he had the occasion to see the

incident. Similar is the evidence of the other

prosecution witnesses, which has been analysed with

great anxiety by the High Court. On a careful perusal

of the same, we do not find any reason to differ with

the said evaluation solely on the ground that they are

related to the deceased persons or that they could

not have seen the occurrence. In a case of this

nature, it is the relatives who would come forward to

depose against the real culprits and would not like to

falsely implicate others. They have witnessed the

brutish crime committed and there is nothing on

record to discard their testimony as untrustworthy.

We find that their evidence is reliable and credible

and it would not be inapposite not to act upon the

same. Nothing has been elicited in the cross-

examination to record a finding that the evidence is

improbable or suspicious and deserves to be

rejected. They have no motive to falsely implicate

the accused and, that apart, their testimony have

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withstood the rigorous cross-examination in material

particulars and received corroboration from the

evidence of the doctor. That apart, the weapons

seized lends credence to the prosecution story.

Quite apart from the above, it is almost well nigh

impossible to perceive that they have any animosity

for some reason to see that the accused persons are

convicted. Their family members have been done to

death in ghastly manner, and in these circumstances,

it cannot be thought of that they would leave the real

culprits and implicate the accused persons.

22. It is next contended by Mr. Jain that the witnesses

have not specifically stated about the exact role

played by each of the accused persons inasmuch as

they have not mentioned who assaulted on which

part of the body and with what weapon. On a perusal

of the evidence, it transpires that the witnesses have

mentioned about the weapons used, the assault

made and the parts of the body where injuries were

inflicted. True it is, there are some discrepancies but

they are absolutely minor. That apart, they had

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formed an unlawful assembly with a common object

to put an end to the lives of the deceased persons.

Their common object is writ large because they had

the knowledge and they shared the common object

from the beginning to the end. Applying the

principles laid down in Masalti and others v. The

State of Uttar Pradesh7, Lalji and others v.

State of U.P.8 and Ramachandran and others v.

State of Kerala9, we conclude that all the accused

persons were a part of the unlawful assembly with

the knowledge of the common object and,

accordingly, we unhesitatingly repel the contention of

the learned counsel for the appellants.

23. Presently, we shall advert to the appeals wherein the

High Court has acquitted the accused persons. It is

apt to mention here that the State had not preferred

any appeal before the High Court assailing the

judgment of acquittal by the learned trial Judge. As

is seen, the High Court has acquitted seven accused,

namely, Mohan, Lal Chand, Revdilal, Babulal, 7 AIR 1965 SC 202 8 (1989) 1 SCC 437 9 (2011) 9 SCC 257

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Mangilal, Ghanshyam and Radhey Shyam, in various

criminal appeals. Before we advert to the

correctness of the view taken by the High Court, we

would like to state the role of the court while dealing

with a judgment of acquittal.

24. In Jadunath Singh and others v. State of U.P.10,

a three-Judge Bench, while dealing with an appeal

against acquittal, has held thus: -

“22. This Court has consistently taken the view that an appeal against acquittal the High Court has full power to review at large all the evidence and to reach the conclusion that upon that evidence the order of acquittal should be reversed. This power of the appellate court in an appeal against acquittal was formulated by the Judicial Committee of the Privy Council in Sheo Swarup v. King Emperor, 61 Ind App 398 = (AIR 1934 PC 227 (2)) and Nur Mohammad v. Emperor, AIR 1945 PC 151. These two decisions have been consistently referred to in judgments of this Court as laying down the true scope of the power of an appellate court in hearing criminal appeals: see Surajpal Singh v. State, 1952 SCR 193 = (AIR 1952 SC 52) and Sanwat Singh v. State of Rajasthan, (1961) 3 SCR 120 = (AIR 1961 SC 715).”

10 AIR 1972 SC 116

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25. In Sohrab and another v. The State of Madhya

Pradesh11, this Court opined that under the Code of

Criminal Procedure, the High Court has full power to

review at large the evidence upon which the order of

acquittal is founded and to reach the conclusion that

on proper appreciation of the evidence, the order of

acquittal should be reversed. No limitation should be

placed upon that power unless it is expressly stated

in the Code. After so stating, the two-Judge Bench

expressed thus: -

“But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court, should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses.”

26. In State of M.P. v. Bacchudas alias Balram and

others12, after referring to Bhagwan Singh v. 11 AIR 1972 SC 2020 12 (2007) 9 SCC 135

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State of M.P.13 and other pronouncements, it has

been stated that the principle to be followed by the

appellate court considering the appeal against the

judgment of acquittal is to interfere only when there

are compelling and substantial reasons for doing so.

If the impugned judgment is clearly unreasonable

and relevant and convincing materials have been

unjustifiably eliminated in the process, it is a

compelling reason for interference.

27. In State of Rajasthan through Secretary, Home

Department v. Abdul Mannan14, this Court has

stated that when an accused is acquitted of a

criminal charge, a right vests in him to be a free

citizen and this Court is very cautious in taking away

that right. The presumption of innocence of the

accused is further strengthened by the fact of

acquittal of the accused under our criminal

jurisprudence. The courts have held that if two views

are possible on the evidence adduced in the case,

then the one favourable to the accused, may be

13 (2003) 3 SCC 21 14 (2011) 8 SCC 65

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adopted by the court. However, this principle must

be applied keeping in view the facts and

circumstances of the case and the thumb rule is

whether the prosecution has proved its case beyond

reasonable doubt. If the prosecution has succeeded

in discharging its onus, and the error in appreciation

of the evidence is apparent on the face of the record,

then the court can interfere in the judgment of

acquittal to ensure that the ends of justice are met.

This is the linchpin around which the administration

of criminal justice revolves.

28. In State of Rajasthan v. Shera Ram alias Vishnu

Dutta15, after survey of the earlier pronouncements,

it has been observed that there is a very thin but a

fine distinction between an appeal against conviction

on the one hand and acquittal on the other. The

preponderance of judicial opinion of this Court is that

there is no substantial difference between an appeal

against conviction and an appeal against acquittal

except that while dealing with an appeal against

15 (2012) 1 SCC 602

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acquittal, the Court keeps in view the position that

the presumption of innocence in favour of the

accused has been fortified by his acquittal and if the

view adopted by the High Court is a reasonable one

and the conclusion reached by it had its grounds well

set out on the materials on record, the acquittal may

not be interfered with. Thus, this fine distinction has

to be kept in mind by the Court while exercising its

appellate jurisdiction. The golden rule is that the

Court is obliged and it will not abjure its duty to

prevent miscarriage of justice where interference is

imperative and the ends of justice so require and it is

essential to appease the judicial conscience.

29. Keeping in view the aforesaid principles, we proceed

to analyse the reasons ascribed by the High Court

while recording the acquittal. In the case of Lal

Chand @ Ram Niwas, the High Court has opined that

though he was named along with other persons who

constituted a group of 25-26 persons and had

surrounded the house of Purshottam, yet none of the

witnesses had mentioned that he had gone on the

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roof of the house or damaged the roof and, therefore,

his participation in the crime appears to be doubtful.

While addressing the conviction relating to Revdi Lal,

the High Court has noticed that the only evidence

against him is that he had gone to the house of

Purshottam and thrown stones, but no other witnesse

has named him barring Ramlal, PW-2. The High

Court has found that in all possibility, there was

exaggeration or embellishment and, accordingly,

given him benefit of doubt. Dwelling upon the

conviction of Ghanshyam, the Division Bench has

observed that the allegations against him are

omnibus in nature and do not inspire confidence and,

accordingly extended benefit of doubt. On similar

analysis, Radhey Shyam s/o Prahlad, Mangi Lal and

Babu Lal S/o Dev Lal have been extended the benefit

of doubt. As far as Mohan Lal is concerned, the High

Court perceived that there are material

contradictions in the evidence of the witnesses

pertaining to the involvement of Mohan Lal and,

hence, felt that it was not safe to convict him and,

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accordingly, on proper scrutiny of the evidence, gave

him the benefit of doubt. Applying the principles laid

down by this Court in the aforesaid authorities, it is

very difficult to hold that there are ‘substantial and

compelling reasons’, ‘good and sufficient grounds’,

‘very strong circumstances’, ‘distorted conclusions’

or ‘glaring mistakes’, and the prosecution has

discharged the onus and, therefore, we are of the

considered opinion that the view expressed by the

High Court does not suffer from any such infirmity.

We are inclined to think that the approach of the

High Court cannot be said to be totally implausible.

It has taken note of the involvement of number of

persons and, after filtering the grain from the chaff

and on due consideration of the material on record,

has extended the benefit of doubt to the accused

persons who have been acquitted. Thus, we are not

disposed to dislodge the conclusions arrived at by

the High Court in recording the acquittal.

30. The next issue that emerges for consideration is

whether the High Court has fallen into error by

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commuting the death sentence to that of life

imprisonment. The High Court, while dealing with

the Death Reference, has opined that when specific

overt acts have not been attributed and similarly

placed accused persons have been given life

sentence and Ram Narayan, who had engineered the

incident, has breathed his last, it would not be

appropriate to impose death sentence. The High

Court has observed that the three sons of Ram

Narayan had been awarded death sentence and the

other two are villagers and in the backdrop of the

situation, there were mitigating factors for

commutation of the sentence.

31. Apart from the reasons ascribed by the High Court,

we think it apposite to consider the circumstances

whether in the present case, death sentence is

warranted. In Bachan Singh v. State of Punjab16,

the Constitution Bench has held as follows: -

“A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the

16 (1980) 2 SCC 684

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rarest of rare cases when the alternative option is unquestionably foreclosed.”

32. In Machhi Singh and Others v. State of

Punjab17, the Court, after stating the feeling of the

community and its desire for self preservation,

expressed that in every case, the community does

not desire to withdraw the protection of self

preservation by sanctioning the death penalty. It

may do so in “rarest of rare cases” when its

collective conscience is so shocked that it would

expect the holders of the judicial power centre to

inflict death penalty irrespective of their personal

opinion as regards the desirability or otherwise of

retaining death penalty. After so stating, the three-

Judge Bench culled out the propositions envisaged

from Bachan Singh’s case which are as follows: -

“(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.

(ii) Before opting for the death penalty the circumstances of the ‘offender’ also require to be taken into consideration along with the circumstances of the ‘crime’.

17 (1983) 3 SCC 470

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(iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.

(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.”

33. In Haresh Mohandas Rajput v State of

Maharshtra18, the Bench referred to the principles

in Bachan Singh (supra) and Machhi Singh (supra)

and proceeded to state as follows:-

“ “The rarest of the rare case” comes when a convict would be a menace and threat to the harmonious and peaceful coexistence of the society. The crime may be heinous or brutal but may not be in the category of “the rarest of the rare case”. There must be no reason to believe that the accused cannot be reformed or rehabilitated and that he is likely to continue criminal acts of violence as would

18 (2011) 12 SCC 56

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constitute a continuing threat to the society. The accused may be a menace to the society and would continue to be so, threatening its peaceful and harmonious coexistence. The manner in which the crime is committed must be such that it may result in intense and extreme indignation of the community and shock the collective conscience of the society. Where an accused does not act on any spur-of-the-moment provocation and indulges himself in a deliberately planned crime and meticulously executes it, the death sentence may be the most appropriate punishment for such a ghastly crime. The death sentence may be warranted where the victims are innocent children and helpless women. Thus, in case the crime is committed in a most cruel and inhuman manner which is an extremely brutal, grotesque, diabolical, revolting and dastardly manner, where his act affects the entire moral fibre of the society e.g. crime committed for power or political ambition or indulging in organised criminal activities, death sentence should be awarded. (See C. Muniappan v. State of T.N.19, Dara Singh v. Republic of India20, Surendra Koli v. State of U.P.21, Mohd. Mannan v. State of Bihar22 and Sudam v. State of Maharashtra23.)”

34. In Ram Pal v. State of U.P.24, a two-Judge Bench

took note of the fact that there has been termination

of life of number of people and opined that the

19 (2010) 9 SCC 567 20 (2011) 2 SCC 490 21 (2011) 4 SCC 80 22 (2011) 5 SCC 509 23 (2011) 7 SCC 125 24 (2003) 7 SCC 141

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number of deaths cannot be the sole criterion for

awarding the maximum punishment of death. It

further ruled that while in a given case, death penalty

may be the appropriate sentence even for a single

murder, it would not necessarily mean that in every

case of multiple murders, death penalty has to be the

normal rule. The Court took note of the guidelines

stated by the Constitution Bench in the case of

Bachan Singh (supra), the aggravating

circumstances and the mitigating circumstances

postulated therein and opined that the incident had

taken place as a sequel to the murder of close

relative of the appellant and the other principal

accused which was suspected to have been

committed by the members of the victims’ family.

The two-Judge Bench expressed the view that the

circumstance could be treated as a circumstance

which amounted to a provocation from the victim

side. That apart, the two-Judge Bench observed that

the appellant therein was similarly placed with the

other accused persons who had been imposed

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sentence for life imprisonment and further, they had

spent nearly seventeen years in custody.

35. In the present case, as we notice from the factual

matrix, the crime had taken place because Ram

Narayan had suspected that the accused persons

were responsible for extinguishing the life spark of

his son. It is also seen that similarly placed persons

have been imposed life sentence. Quite apart from

that, all the accused persons have almost spent

thirteen years in custody. Regard being had to the

totality of the circumstances, it cannot be said that

imprisonment for life is inadequate and the

circumstances are so grave that it calls for a death

sentence. When we adjudge the whole scenario in

proper perspective, we are inclined to think that it is

not a case which can be treated to be a case of

extreme culpability and there is no other option but

to impose death penalty. Thus, we do not find any

error in the decision of the High Court by which it has

commuted the death sentence to life imprisonment.

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36. Consequently, the appeal filed by the accused-

appellants and the appeals filed by the State for

enhancement of penalty and reversal of the

judgment of acquittal rendered in favour of the

accused persons are dismissed.

……………………………….J. [K. S. Radhakrishnan]

….………………………….J. [Dipak Misra]

New Delhi; April 22, 2013.

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KANHAIYA LAL Vs STATE OF RAJASTHAN

KANHAIYA LAL Vs STATE OF RAJASTHAN