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Tuesday, April 15, 2014

Acquittal basing on general diary and opinion of public not correct - Trial court did wrong - High court correctly reversed the order and convicted him - Apex court held that Perversity of the trial court’s judgment becomes apparent when one finds the undue importance given by it to the diary entries made by the investigating officer PW7-Sheomurthy Singh. PW7 stated that it was mentioned by him in the case diary that it was the opinion of general public that involvement of the accused except Umesh Chandra Rai-A6 is false. The trial court made a perverse observation that the investigating officer never tried to find out whether this rumour is true and submitted charge-sheet. Such reliance on diary entries is not permissible (Mohd Ankoos and Shamshul Kanwar). Besides, the general feeling of the society has no relevance to a criminal case. A court deciding a criminal case must go by the legal evidence adduced before it. The trial court’s order thus suffered from a gross error of law warranting the High Court’s interference.= ASHOK RAI …APPELLANT Versus STATE OF U.P. & ORS. …RESPONDENTS = 2014 (April.Part ) http://judis.nic.in/supremecourt/filename=41413

     Acquittal basing on general diary and opinion of public not correct - Trial court did wrong - High court correctly reversed the order and convicted him - Apex court held that Perversity of the trial court’s judgment becomes apparent  when  one finds the undue importance given by it to the  diary  entries  made  by  the investigating  officer  PW7-Sheomurthy  Singh.  PW7  stated  that   it   was mentioned by him in the case diary  that  it  was  the  opinion  of  general public that involvement of  the  accused  except  Umesh  Chandra  Rai-A6  is false.  The trial court made a perverse observation that  the  investigating officer never tried to find out whether this rumour is  true  and  submitted charge-sheet. Such reliance  on  diary  entries  is  not  permissible  (Mohd
Ankoos and Shamshul Kanwar). Besides, the general  feeling  of  the  society has no relevance to a criminal case.  A court deciding a criminal case  must go by the legal evidence adduced before it. The  trial  court’s  order  thus suffered  from  a  gross  error  of  law   warranting   the   High   Court’s interference.=

16.     It is contended that the appellant was  busy  with  his  thesis  for
M.Sc.(Agr.) and was most of the time not in the village, and  on  the  night
in question he was not present in the village.  There  is  no  substance  in
this submission.  As rightly observed by the High Court, the  incident  took
place in the month of June when most of the educational institutions  remain
closed for summer, hence, the appellant  may  be  present  in  the  village.
Pertinently, the appellant has not produced any evidence  to  show  that  he
was staying in a hostel.   There  is  no  evidence  to  show  what  was  the
distance between the village and the educational institution  in  which  the
appellant was studying.  Thus, the plea of alibi is not proved.

17.     It was wrong for the trial court to  suggest  that  Bashisht  Rai-A1
would not indulge in such activities because he  had  a  bright  career  and
future and indirectly apply that yardstick to the appellant.   Career  or  a
position of a man in life is irrelevant.  Crimes are also committed  by  men
holding high positions and having bright future.  Trial court grossly  erred
in relying on such  extraneous  circumstance  and  rightly  the  High  Court
dismissed this circumstance as irrelevant.

18.     Perversity of the trial court’s judgment becomes apparent  when  one
finds the undue importance given by it to the  diary  entries  made  by  the
investigating  officer  PW7-Sheomurthy  Singh.  PW7  stated  that   it   was
mentioned by him in the case diary  that  it  was  the  opinion  of  general
public that involvement of  the  accused  except  Umesh  Chandra  Rai-A6  is
false.  The trial court made a perverse observation that  the  investigating
officer never tried to find out whether this rumour is  true  and  submitted
charge-sheet. Such reliance  on  diary  entries  is  not  permissible  (Mohd
Ankoos and Shamshul Kanwar). Besides, the general  feeling  of  the  society
has no relevance to a criminal case.  A court deciding a criminal case  must
go by the legal evidence adduced before it. The  trial  court’s  order  thus
suffered  from  a  gross  error  of  law   warranting   the   High   Court’s
interference.

19.     It was argued that ladies of the house who were  admittedly  present
have not been examined.  We do not think  that  this  has  had  any  adverse
impact on the prosecution case.  The ladies  were  sleeping  in  a  separate
room.  When male members of the family were available to  give  evidence  it
is unlikely that female members would step in witness box.

20.     In the ultimate analysis, we are of the opinion that the High  Court
rightly overturned the trial court’s  order  so  far  as  it  acquitted  the
appellant.  The trial court’s view is  totally  perverse  and  unreasonable.
Undoubtedly, there were compelling and  substantial  reasons  for  the  High
Court to interfere with it.  We,  therefore,  confirm  the  impugned  order.
Appeal is  dismissed.   The  appellant  is  on  bail.   He  is  directed  to
surrender forthwith.  His bail bond stands cancelled.

21.     We are informed that the appellant  is  a  senior  citizen.   He  is
suffering from ‘Endstage Renal Disease’.  It appears that he is required  to
undergo dialysis twice a week.  This information is supplied to  this  Court
by  D.I.G.,  Allahabad  range.   The  appellant’s   health   condition   is,
therefore, precarious.  While we  sympathise  with  the  appellant  on  this
aspect, law must  be  allowed  to  take  its  own  course.   The  appellant,
however,  will  be  at  liberty  to  approach  the  State   Government   for
commutation of  his  sentence  or  the  Jail  Superintendent  for  premature
release under the provisions of the U.P. Jail Manual, a deemed  appropriate.

 2014 (April.Part ) http://judis.nic.in/supremecourt/filename=41413
RANJANA PRAKASH DESAI, MADAN B. LOKUR

                                                        NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                      CRIMINAL APPEAL NO. 1508 OF 2005

ASHOK RAI                                        …APPELLANT

                                   Versus

 STATE OF U.P. & ORS.                     …RESPONDENTS


                                  JUDGMENT


(SMT.) RANJANA PRAKASH DESAI, J.


1.       There were eight accused. They were Bashisht  Rai-A1,  Jai  Prakash
Rai-A2, Ashok Rai-A3, Awadh Narain Rai-A4, Hirdaya Narain-A5, Umesh  Chandra
Rai-A6, Loknath-A7 and Ramnath Rai-A8. All of them were  tried  in  Sessions
Trial No. 215 of 1979.   Bashisht Rai–A1 was tried for  the  offences  under
Sections 148, 302 and 449 of the IPC. Ashok Rai-A3 and Umesh Chandra  Rai-A6
were charged under Sections 148, 449 and 302 read with Sections 34 & 149  of
the IPC.  They were  alternatively  charged  under  Section  302  read  with
Section 34 of the IPC.  Rest of the accused were charged under Sections  147
and 302 read with Section 149 of the IPC.

2.      According to the prosecution  deceased  Kailash  Rai,  the  material
witnesses and the appellant belong to one  family  being  descendants  of  a
common ancestor. They lived in a joint family.   Umesh  Chandra  Rai-A6  was
the son of Babu Lal brother of Ram Dutt (father of deceased  Kailash  Rai  &
PW1- Kamla Rai, the informant).  Deceased Kailash Rai and other  members  of
his family lived jointly with Babu  Lal.   Umesh  Chandra  Rai-A6  separated
from the joint family 7 to 8 months before the occurrence  because  of  oral
partition.  He wanted his share from the land in Tandwa village. His  father
Babu Lal was not agreeable to this.  There was altercation between  deceased
Kailash Rai and Umesh Chandra Rai-A6 on this  issue.  Umesh  Chandra  Rai-A6
developed friendship with Loknath-A7 who had a  personal  enmity  with  PW1-
Kamla Rai. There were civil litigations pending between Loknath –A7 and PW1-
 Kamla Rai.

3.      The incident in question took place in the night intervening 26th  &
27th of June, 1979 between 1.00 a.m and 2.00 a.m.   PW1-Kamla  Rai,  Shriram
Rai, Gorakh Rai, Munna Lal and children were sleeping in the  Sehan  in  the
north of the Baithaka.  The ladies were sleeping inside  the  Zanana  house.
Deceased Kailash Rai and his wife PW4-Bijula Devi were  sleeping  on  a  cot
inside the Ahata.  Between 1.00 a.m.  and  2.00  a.m.  Ashok  Rai-A3,  Umesh
Chandra Rai–A6 and Bashisht Rai-A1 came in the Ahata by  climbing  over  the
roof through the window.  They came inside. Bashisht Rai-A1 was  armed  with
a dao.  Umesh Chandra Rai-A6 had a gandasa.  Ashok Rai-A3 was armed  with  a
sword.  Ashok Rai-A3 closed the mouth of PW4-Bijula Devi. She woke-up.   She
saw Umesh Chandra Rai-A6 pressing the head of her husband and Bashisht  Rai-
A1 cutting his  throat.   Deceased  Kailash  Rai  started  moving  his  body
restlessly.  He received two injuries on his  chest.   Thereafter,  all  the
three accused started  running  away.   PW4-Bijula  Devi  raised  cries  and
flashed the torch.  The accused reached the gate  and  looked  at  her.  She
continued to cry.  The accused  went  out  through  the  door  which  opened
towards the verandah of the Baithaka.   PW1-  Kamla  Rai,  Shriram  Rai  and
others who were sleeping outside in the Sehan woke-up due to  the  cries  of
PW4-Bijula Devi.  PW1-Kamla Rai and Shriram had  torches  with  them.   They
flashed the torches towards the door through  which  Umesh  Chandra  Rai-A6,
Bashisht Rai-A1 and Ashok Rai-A3 were coming out.  They saw Bashisht  Rai-A1
with a dao, Ashok Rai-A3 with a  sword  and  Umesh  Chandra  Rai-A6  with  a
gandasa.  They were  challenged  by  PW1-Kamla  Rai  and  others,  but  they
continued running towards the South. PW1-Kamla Rai came  in  the  Ahata  and
found Kailash Rai lying dead near his cot with a throat injury.   PW4-Bijula
Devi was  crying.   Her  clothes  were  blood  stained.   She  narrated  the
incident to him.  He dictated his report to Ram Babu.  He took  it  to  P.S.
Mohamadabad. It was lodged at 2.45 a.m. Entry was  made  in  General  Diary.
Investigation was started.   The  accused  were  arrested.   Post-mortem  of
deceased Kailash Rai revealed following external injuries.


           “1.  One incised wound on right  side  of  neck  in  the  middle
           measuring 15 cm x  4  cm,  horizontally  placed  extending  from
           anterior aspect of neck up to posterior  aspect  of  right  side
           with retracted skiing in the middle, clear cut margins, inverted
           all major vessels and muscles,  trachea,  ocsephegens  cut  upto
           bone, sprouting of blood present.


           2.   One incised wound on left side of chest horizontally placed
           measuring 7cm x 2 cm spindle shaped, 9 cm above the left nipple,
           clean cut margins muscle deep.


           3.   Incised wound measuring 2 cm x 5  cm  on  left  chest  wall
           horizontally placed 2 cm medial  to  injury  no.  2,  clean  cut
           margins muscle deep.”

On internal examination, inter alia, larynx and trachea were found cut.  The
doctor opined that ante-mortem injuries caused  by  sharp  weapons  produced
haemorrhage and shock resulting in death.

4.      After completion  of  the  investigation  the  accused  came  to  be
charged as aforesaid.  The important witnesses examined by  the  prosecution
are PW1- Kamla Rai, PW2-Kedar Rai  and  PW4-Bijula  Devi  the  wife  of  the
deceased.  The accused denied  the  charge  and  contended  that  they  were
falsely implicated.   Ashok Rai-A3 stated that at the time of occurrence  he
was at Allahabad preparing his thesis for M.Sc. (Agr).  He claimed  that  he
was working as Assistant Soil Conservative Inspector.

5.      The trial court convicted Umesh Chandra  Rai-A6  under  Section  302
read with Sections 34 and 449 of  the  IPC  and  sentenced  him  to  undergo
imprisonment for life on both the counts.  The remaining seven accused  were
acquitted.  Umesh Chandra Rai-A6 carried an appeal  against  his  conviction
to the High Court.  During the pendency of the appeal he died and  therefore
his appeal abated. The State carried an appeal against the acquittal of  the
other accused to the High Court.  The High Court held  Bashisht  Rai-A1  and
Ashok Rai-A3 guilty and convicted them for  the  offences  punishable  under
Sections 302 and 449 of the IPC and under Section 302 read with  Section  34
and Section 449 of the IPC respectively.  Each  of  them  was  sentenced  to
life imprisonment for each of the offences.   The  acquittal  of  the  other
accused was  upheld.  The  instant  appeal  is  preferred  by  Ashok  Rai-A3
(hereinafter referred to as ‘the appellant’).

6.      Mr. Santosh Mishra, learned  counsel  for  the  appellant  submitted
that the High Court has wrongly convicted the appellant.  He submitted  that
the conviction cannot be based only on  the  evidence  of  PW-4.  Since  the
prosecution has alleged that there is strong motive,  corroboration  to  PW-
4’s evidence was a  must.   In  this  connection  he  relied  on  Pulicherla
Nagaraju @ Nagaraja Reddy v. State of A.P.[1]. He submitted  that  there  is
no corroboration to PW4’s version. Counsel  submitted  that  admittedly  the
incident occurred in the dead of night.  There were  no  lights.  PW4  is  a
pardanashin lady. Out of the three accused who  entered  the  room,  as  per
prosecution, one was Umesh Chandra  Rai-A6  who  was  PW4’s  brother-in-law.
She could have perhaps identified him.  But  the  appellant  and  the  other
accused might  not  have  been  even  seen  by  her.   She  could  not  have
identified them.  PW1-Kamla Rai must have asked her to include  their  names
as the assailants.   Counsel  submitted  that  though  several  ladies  were
present at the scene of offence none of them  is  examined.   Moreover,  Ram
Babu the person who wrote the FIR dictated to him by PW1-Kamla  Rai  is  not
examined.  Counsel submitted that deceased Kailash Rai was involved  in  two
other cases of dacoity.  It is Umesh Chandra  Rai-A6  who  had  enmity  with
deceased Kailash Rai.  The appellant had no enmity with him.  There  was  no
reason for him to kill deceased Kailash Rai.  Counsel  submitted  that  PW1-
Kamla Rai was sleeping outside.  He was an easy prey.  There  is  no  reason
why the appellant would go inside and kill  the  deceased.  Counsel  further
submitted that the prosecution witnesses are  interested  witnesses.   Their
evidence must be closely scrutinized.  In this case  there  is  also  enmity
between the two sides.  Therefore, false involvement cannot  be  ruled  out.
In this connection he relied on Raju @  Balachandran  &  Ors.  v.  State  of
Tamil Nadu[2].  Counsel submitted that the  appellate  court  can  interfere
with the order of acquittal only if there  are  compelling  and  substantial
reasons for doing so.  If the impugned  judgment  of  acquittal  is  clearly
unreasonable or perverse, the appeal court can interfere with  it.   If  the
view taken by the trial court is a reasonably possible view  it  should  not
be interfered with.  In support of  this  submission  counsel  relied  on  a
number of judgments, one of them being Bihari Nath  Goswami  v.  Shiv  Kumar
Singh & Ors.[3] .  It is not necessary to refer to all the  judgments  cited
by learned counsel as all those judgments  reiterate  the  same  principles.
Counsel submitted that the impugned judgment, so  far  as  it  convicts  the
appellant may, therefore, be set aside.

7.      Mr. Shrish Kumar Misra, learned counsel appearing for the  State  of
U.P filed written  submissions.  He  submitted  that  the  trial  court  has
erroneously ignored the most vital evidence.  The trial  court  has  wrongly
termed PW2-Kedar Rai as a partisan witness.    Counsel  submitted  that,  in
any case, evidence of partisan witnesses also can be relied upon  if  it  is
found to be cogent.  In this case evidence of  PW1,  PW2  and  PW4  inspires
confidence and ought to have been relied upon.  PW4 being the  wife  of  the
deceased is the most natural witness.  She had an  opportunity  to  see  the
appellant.  The trial court wrongly held that being a pardanashin  lady  she
might not have seen the  appellant  and  hence  her  alleged  identification
cannot be relied upon.  The face of a pardanashin lady  cannot  be  seen  by
others, but she can see everybody.  The view taken by the trial  court  that
a person who has a bright future would not commit murder  is  unsustainable.
The suggestion that the appellant was not in the  village  at  the  relevant
time has rightly been rejected by the High Court as no defence  witness  was
examined to support it.  The trial court also erred  in relying on an  entry
in the case diary of the investigating officer to the  effect  that  it  was
generally felt that the appellant and others  except  Umesh  Chandra  Rai-A6
are falsely involved in this case.  In this connection he  relied  on   Mohd
Ankoos & Ors. v. Public Prosecutor High Court  of  A.P.,  Hyaderabad[4]  and
Shamshul Kanwar v. State of U.P.[5].  Counsel submitted that  in  this  case
the only possible view that can be taken is that the  appellant  is  guilty.
The High Court, therefore, rightly overturned the acquittal order.  In  this
connection he relied on K. Gopal Reddy v. State  of  Andhra  Pradesh[6]  and
G.C. Kanungo v. State of Orissa[7].  Counsel submitted that  the  appeal  be
therefore, dismissed.

8.      Several Judgments of this court have been cited  on  the  principles
which should guide the court while dealing with an appeal against  order  of
acquittal.  The law is so well settled that it is not necessary to refer  to
those judgments. Suffice it to say that the appellate court has to  be  very
cautious while reversing an order of acquittal because  order  of  acquittal
strengthens the presumption of innocence of the accused.  If the view  taken
by the  trial  court  is  a  reasonably  possible  view  it  should  not  be
disturbed, because the appellate court feels that some other  view  is  also
possible.  A perverse order of acquittal replete with gross errors of  facts
and law will have to  be  set  aside  to  prevent  miscarriage  of  justice,
because just as the court has to give  due  weight  to  the  presumption  of
innocence and see that innocent person is not sentenced, it is  equally  the
duty of the court to see that the guilty do not escape  punishment.   Unless
the appellate court finds the order of acquittal to be clearly  unreasonable
and is convinced that  there  are  substantial  and  compelling  reasons  to
interfere with it, it should not interfere with it.  We will  consider  this
case in light of these principles.

9.      The trial court has erroneously recorded that  the  accused  had  no
motive to kill deceased Kailash Rai.  The High Court  has  rightly  observed
that Umesh Chandra Rai-A6 was the first  cousin  of  deceased  Kailash  Rai.
The appellant and A1-Bashisht Rai belonged to the same  family  of  Loknath,
Ramnath Rai and Deonath  Rai  and  there  was  civil  as  well  as  criminal
litigation pending between their family and the family of  deceased  Kailash
Rai.  Umesh Chandra Rai-A6 was unhappy about the family partition.   He  had
a grouse against his first cousin PW1-Kamla Rai over the partition  dispute.
PW1-Kamla Rai is the brother of deceased Kailash Rai.  Umesh Chandra  Rai-A6
had developed intimacy with other accused who were as  it  is  not  on  good
terms with PW1-Kamla Rai’s family.  Thus, it is not  possible  to  say  that
motive is  absent  in  this  case.   Consequently,  the  argument  that  the
appellant had no enmity with deceased Kailash Rai; that  PW1-Kamla  Rai  was
sleeping outside the room and, therefore, the appellant  could  have  easily
killed PW1-Kamla Rai instead of taking the risk of going inside and  killing
deceased Kailash Rai must also be rejected.  The relations between  the  two
sides were undoubtedly strained.  In such a situation, it  is  difficult  to
fathom the undercurrents.  As to why the accused chose deceased Kailash  Rai
and not PW1-Kamla Rai is difficult to say.  But the fact remains that  there
was enmity between the two sides and there is reliable  evidence  on  record
to establish that the appellant was  involved  in  the  murder  of  deceased
Kailash Rai.  In any case, the prosecution  has  examined  PW4-Bijula  Devi,
who is an eye-witness.  When there is eye-witness  account  on  record,  the
absence of motive pales into insignificance.  It was submitted  that  if  it
is held that there is strong motive, then, there must  be  corroboration  to
PW4’s evidence to rule out false implication.  In this case evidence of  PW-
1 & PW-2 and other attendant circumstances provide  corroboration  to  PW4’s
evidence.

10.     It is  argued  that  the  prosecution  case  rests  on  evidence  of
interested witnesses.  No independent witnesses are examined.  Unless  there
is corroboration to the evidence of  interested  witnesses,  their  evidence
cannot  be  accepted.  We  cannot  accept  this  submission.   Evidence   of
interested witnesses is not infirm.  It would be good to have  corroboration
to their evidence as a matter of prudence.  But corroboration is not  always
a must.  If the evidence of interested witnesses is intrinsically  good,  it
can be accepted without corroboration. However, as held  by  this  Court  in
Raju@Balachandran, the evidence of interested witnesses must be  scrutinized
carefully. So scrutinized, the evidence of PW1, PW2 and PW4  appears  to  be
acceptable.

11.     The most important witness is PW4-Bijula Devi, the wife of  deceased
Kailash Rai.  She was sleeping in the Ahata in the courtyard,  on  the  same
cot along with her husband deceased Kailash Rai in the  night  in  question.
She is the most natural witness.  Her  clothes  were  found  blood  stained.
According to the serologist’s report the blood group of the blood  found  on
her clothes matched the blood group of the  blood  found  on  her  husband’s
clothes.  Her presence in the house at the dead of night cannot be  doubted.


12.      Evidence  of  PW4-Bijula  Devi  is   forthright   and   convincing.
According to her, she woke-up when the appellant pressed her mouth. She  saw
Umesh Chandra Rai-A6 pressing his husband’s head  hard.   She  saw  Bashisht
Rai-A1 cut her husband’s neck with a dao.  She  stated  that  Umesh  Chandra
Rai-A6 had a gandasa in his hand and the appellant had a sword in his  hand.
 She further stated that when her husband tried  to  move  he  received  two
more injuries on his chest.  We have reproduced the  injuries  sustained  by
the deceased.  They are consistent with this evidence.  PW4  further  stated
that after assaulting deceased  Kailash  Rai,  the  accused  ran  away.  She
started shouting. She lit her torch  before  the  accused  could  reach  the
door.  They turned at her; looked at her and ran away.  Hearing  her  cries,
PW1-Kamla Rai and others came there.  She narrated  the  incident  to  them.
Thus, PW4 had ample opportunity to see the  accused.   They  were  in  close
proximity with her and she had  seen  them  in  torch  light.  It  would  be
difficult for her to forget the faces of her husband’s  assailants.   It  is
stated that PW4 is a pardanashin lady.  The trial court  has  observed  that
being a pardanashin lady she would not know the accused.  It is argued  that
she may identify Umesh Chandra Rai-A6, he being her brother-in-law, but  she
could not have identified others.  This submission does not impress us.   As
rightly contended by the State counsel,  the  face  of  a  pardanashin  lady
cannot be seen by general public, but she can see  them.   The  accused  and
PW1-Kamla Rai’s family  reside  in  the  same  village.   Their  houses  are
situated in the same  area  and  in  close  vicinity.   Besides,  there  are
disputes between the two sides.  As rightly observed by the High Court,  the
appellant belonged to the clan  of  PW4’s  in-laws.   It  is  not  possible,
therefore, to hold that PW4 would not know the appellant and could not  have
seen him before, merely because she  stated  that  she  did  not  know  some
persons from the village.

13.     We are also not prepared to accept the submission that PW4 gave  the
name of the appellant because PW1 asked her to do so.   There  was  no  need
for anyone to prompt her, because she  had  seen  the  incident  from  close
quarters.  From the tenor of her evidence she appears to be a very  truthful
witness. When she was asked whether her husband was assaulted  on  the  neck
by a gandasa, she firmly stated, no not by a gandasa, but by a  dao.   There
is no reason to disbelieve her so far as  complicity  of  the  appellant  is
concerned.

14.     PW1-Kamla Rai provides corroboration to the evidence of PW4. He  has
given a general outline of the strained relationship between the two  sides.
He has then stated that at about 2.00 a.m when PW4 raised cries  he  got  up
from his sleep.  He and Ram Rai lit their torch and flashed it  towards  the
door of the meeting room which is a path for exit and which leads to  Ahata.
 In the torch light they  saw  the  appellant,  Bashisht  Rai-A1  and  Umesh
Chandra Rai -A6 coming out of the door.  The appellant had a  sword  in  his
hand.  Bashisht Rai-A1 had a weapon in his hand. Umesh Chandra Rai-A6 had  a
gandasa in his hand.  They challenged the  accused.   But  the  accused  ran
away.  They went to the Ahata.  They found Kailash Rai lying dead.  PW4  who
was crying narrated the incident to him.  He then  dictated  the  report  to
Ram Babu. Ram Babu read out the report  to  him.   Thereafter,  he  put  his
signature on the same.  Then he went to  Police  Station,  Mohammadabad  and
lodged it.  He stated that the police station is about 3 furlong  away  from
his house.  He has been cross-examined but he has stood firm in  the  cross-
examination.  This witness is  also  a  natural  witness.   Admittedly,  the
deceased and  this  witness  used  to  stay  together.  He  was,  therefore,
expected to be present in the house.  He has truthfully stated  the  events.
His claim that he saw the appellant  and  the  other  accused  running  with
weapons cannot be doubted.  He has truthfully stated that  he  dictated  the
FIR to Ram Babu.  It is true that Ram Babu is not examined.  But  that  does
not affect the veracity of the evidence of this  witness.   Pertinently,  he
has stated that Ram Babu read out the report and then he signed  it.   Thus,
he verified whether what he stated was correctly recorded or not.   Besides,
the FIR is promptly recorded at 2.45 a.m.    This witness has  rightly  been
believed by the High Court.

15.     PW2-Kedar Rai is a neighbour of Kamla Rai.  He stated  that  on  the
day of incident he was sleeping at the gate of his  house.   At  about  2.00
a.m. he woke-up from his sleep upon hearing the screams  of  PW1-Kamla  Rai.
He stated that he ran towards Kamla Rai’s house.  When he went 2 to 3  steps
from the  north-west  corner  of  his  house  he  saw  people  running.   He
identified them in the light of torch.  Bashist  Rai-A1  and  Umesh  Chandra
Rai-A6 had weapons in their hands.  The appellant had a sword in  his  hand.
From west-side Ram Babu and Chandrima Rai came with  torches.   The  accused
ran towards the South.  They ran after the accused for a while and  stopped.
 They went in the house of PW1-Kamla Rai.   They  found  Kailash  Rai  lying
dead.  According to PW2, PW4-Bijula Devi told them that  the  appellant  and
the other two accused had come to  their  courtyard  and  attacked  deceased
Kailash Rai.  This  witness  has  not  seen  the  actual  incident,  but  he
corroborates PW4 and PW1 to the extent that the appellant and the other  two
accused had weapons in their hands and they were seen running away from  the
house of PW1-Kamla Rai.  He has categorically denied the suggestion that  he
was giving false evidence due to enmity.  His house is  near  the  house  of
deceased Kailash Rai.  His presence at the  scene  of  offence  is  natural.
The trial court unnecessarily discarded his evidence holding that he  is  an
interested witness.

16.     It is contended that the appellant was  busy  with  his  thesis  for
M.Sc.(Agr.) and was most of the time not in the village, and  on  the  night
in question he was not present in the village.  There  is  no  substance  in
this submission.  As rightly observed by the High Court, the  incident  took
place in the month of June when most of the educational institutions  remain
closed for summer, hence, the appellant  may  be  present  in  the  village.
Pertinently, the appellant has not produced any evidence  to  show  that  he
was staying in a hostel.   There  is  no  evidence  to  show  what  was  the
distance between the village and the educational institution  in  which  the
appellant was studying.  Thus, the plea of alibi is not proved.

17.     It was wrong for the trial court to  suggest  that  Bashisht  Rai-A1
would not indulge in such activities because he  had  a  bright  career  and
future and indirectly apply that yardstick to the appellant.   Career  or  a
position of a man in life is irrelevant.  Crimes are also committed  by  men
holding high positions and having bright future.  Trial court grossly  erred
in relying on such  extraneous  circumstance  and  rightly  the  High  Court
dismissed this circumstance as irrelevant.

18.     Perversity of the trial court’s judgment becomes apparent  when  one
finds the undue importance given by it to the  diary  entries  made  by  the
investigating  officer  PW7-Sheomurthy  Singh.  PW7  stated  that   it   was
mentioned by him in the case diary  that  it  was  the  opinion  of  general
public that involvement of  the  accused  except  Umesh  Chandra  Rai-A6  is
false.  The trial court made a perverse observation that  the  investigating
officer never tried to find out whether this rumour is  true  and  submitted
charge-sheet. Such reliance  on  diary  entries  is  not  permissible  (Mohd
Ankoos and Shamshul Kanwar). Besides, the general  feeling  of  the  society
has no relevance to a criminal case.  A court deciding a criminal case  must
go by the legal evidence adduced before it. The  trial  court’s  order  thus
suffered  from  a  gross  error  of  law   warranting   the   High   Court’s
interference.

19.     It was argued that ladies of the house who were  admittedly  present
have not been examined.  We do not think  that  this  has  had  any  adverse
impact on the prosecution case.  The ladies  were  sleeping  in  a  separate
room.  When male members of the family were available to  give  evidence  it
is unlikely that female members would step in witness box.

20.     In the ultimate analysis, we are of the opinion that the High  Court
rightly overturned the trial court’s  order  so  far  as  it  acquitted  the
appellant.  The trial court’s view is  totally  perverse  and  unreasonable.
Undoubtedly, there were compelling and  substantial  reasons  for  the  High
Court to interfere with it.  We,  therefore,  confirm  the  impugned  order.
Appeal is  dismissed.   The  appellant  is  on  bail.   He  is  directed  to
surrender forthwith.  His bail bond stands cancelled.

21.     We are informed that the appellant  is  a  senior  citizen.   He  is
suffering from ‘Endstage Renal Disease’.  It appears that he is required  to
undergo dialysis twice a week.  This information is supplied to  this  Court
by  D.I.G.,  Allahabad  range.   The  appellant’s   health   condition   is,
therefore, precarious.  While we  sympathise  with  the  appellant  on  this
aspect, law must  be  allowed  to  take  its  own  course.   The  appellant,
however,  will  be  at  liberty  to  approach  the  State   Government   for
commutation of  his  sentence  or  the  Jail  Superintendent  for  premature
release under the provisions of the U.P. Jail Manual, a deemed  appropriate.


                                                           …………………………………..J.
                                                     (RANJANA PRAKASH DESAI)


                                                            ……………………………………J.
                                                            (MADAN B. LOKUR)
NEW DELHI;
APRIL 15, 2014.
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[1]      2006(11) SCC 444
[2]      2012(12) SCC 701
[3]      2004 (9) SCC 186
[4]      2010(1) SCC94
[5]      1995(4) SCC 430
[6]      1979(1) SCC 355
[7]      1995(5) SCC 96

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