No writ is maintainable when alternative remedy is available in criminal procedure code when police fail to register a case =It is seen from the discussion that the police officer in charge of a police station is obliged to register a case and then to proceed with the investigation subject to the provisions of Sections 156 and 157 of the Code. It is further seen that if the police officer in-charge of a police station refuses to exercise the jurisdiction vested in him and register the case on information of cognizable offence and violates the statutory right, the person aggrieved, can send the substance of the same to the higher authority, who, in turn, if satisfied that the information forwarded to him discloses a cognizable offence, can investigate the case himself or direct the investigation to be made by a subordinate officer. The elaborate discussion clearly shows that before registration of the FIR, an officer should be satisfied. In other words, if the facts are such which require some inquiry for the satisfaction about the charges or allegations made in the FIR or he may have entertained a reasonable belief or doubt, then he may make some inquiry. To put it clear, by virtue of the expression “reason to suspect the commission of an offence”, we are of the view that commission of cognizable offence, based on the facts mentioned has to be considered with the attending circumstances, if available. In other words, if there is a background/materials or information, it is the duty of the officer to take note of the same and proceed according to law. It is further made clear that if the facts are such which require some inquiry for the satisfaction about the charges or allegations made in the FIR then such a limited inquiry is permissible. ; With regard to the direction for investigation by the CBI, a Constitution Bench of this Court in State of West Bengal and Ors. vs. Committee for Protection of Democratic Rights, West Bengal and Ors., (2010) 3 SCC 571 clarified that despite wide powers conferred by Articles 32 and 226 of the Constitution, the Courts must bear in mind certain self- imposed limitations on the exercise of such constitutional powers. Insofar as the question of issuing a direction to CBI to conduct an investigation, the Constitution Bench has observed that “although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has leveled some allegations against the local police. This extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instill confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise, the CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations.”- Having regard to the Scheme of the Code, various provisions as to the course to be adopted and in the light of the peculiar/special facts and circumstances which we have already noted in the earlier paras, we are satisfied that the High Court was fully justified in directing the appellant to avail the recourse to the remedy as provided in the Code by filing a complaint before the Magistrate. We are also satisfied that the High Court, in order to safeguard the stand of the appellant, issued certain directions to remedy her grievance against the persons concerned. We confirm the decision of the High Court in the light of the facts relating to the background of the case, particularly, the land dispute, the complaint regarding the same and various subsequent circumstances including her silence about the non-disclosure of the alleged rape before her mother on two occasions and before the female doctors at Civil Hospital as well as Sabarmati Jail and also before the Magistrate. It is further made clear that while affirming the decision of the High Court, it cannot be presumed that we are underestimating the grievance of the appellant herein and it is for the Magistrate concerned to proceed in accordance with the provisions of the Code and arrive at an appropriate conclusion. 13) With the above observation, the appeal is dismissed.

published in http://judis.nic.in/supremecourt/filename=40485
Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 810 OF 2013
(Arising out of SLP (CRL.) No. 9256 of 2012
Doliben Kantilal Patel .... Appellant(s)
Versus
State of Gujarat & Anr. ....
Respondent(s)
J U D G M E N T
P. Sathasivam, J.
1) Leave granted.
2) This appeal is directed against the final judgment and
order dated 08.11.2012 passed by the High Court of Gujarat
at Ahmedabad in Special Criminal Application No. 2206 of
2012 whereby the High Court dismissed the petition filed by
the appellant herein.
3) Brief facts:
(a) The appellant herein is an American Citizen of Indian
origin who came to India on 09.03.2010 to see her ailing
1Page 2
father-Kantilal Ambalal Patel. 
Kantilal Ambalal Patel is
having a number of properties in the form of lands, flats and
societies in the State of Gujarat. Arvind Jani and Jayesh Dave
are very close friends of the father of the appellant. They
cheated the father of the appellant in respect of a land
dealing at Rajkot against which Civil Suit No. 186 of 2010 was
filed in the Court at Rajkot wherein the said suit was decreed
in the favour of the appellant herein. The present appeal
pertains to the land situated at Vadodra in the name of
Gayatrinagar Cooperative Housing Society Limited (group of
five societies).
(b) Since certain disputes arose with respect to the above
said land at Vadodra which, as per the appellant herein,
belongs to her father and the appellant had a joint account
with him, one Divyangbhai Jha filed an FIR being CR No.
5/2012 dated 21.05.2012 registered with Gandhinagar Police
Station under Sections 406, 409, 420, 465, 467, 468, 174,
120B and 477A of the Indian Penal Code, 1860 (in short ‘the
IPC’) against the appellant herein and 7 other accused
persons in respect of grabbing of lands of cooperative
2Page 3
societies using forged/fabricated government permission
letters.
(c) On 23/24.05.2012, the appellant herein was arrested at
about midnight. On 24.05.2012, she was produced before
the Judicial Magistrate and an application for remand was
preferred by CID Crime, Ahmedabad. On the very same day,
Judicial Magistrate granted remand for a period of 5 days.
(d) It was alleged by the appellant herein that from the
very first day of remand, she was repeatedly raped in police
custody by Jayesh Dave, Divyangbhai Jha (the complainant in
abovesaid FIR), A.A. Shaikh, the investigating officer and also
by an unknown person. However, Arvind Jani was present
throughout the period of remand. It was further alleged that
after the period of remand, she was sent to the Central Jail,
Sabarmati, Gujarat without following the procedures
prescribed under law. 
(e) On 20.06.2012, she wrote an e-mail to Ms. Deepa
Mehta, U.S Citizens Services in U.S Consulate, Mumbai
describing the entire incident of rape and the atrocities
meted out to her. It was also alleged in the said e-mail that
3Page 4
Arvind Jani and Jayesh Dave, in connivance with one Amam
Shah, owner of a vernacular daily known as Gujarat
Samachar got the complaint filed directly to the CID (Crime &
Railways) to the effect that Kantilal Ambalal Patel and others
are not the office bearers of the abovesaid cooperative
society at Vadodra. On 11.07.2012, the appellant herein was
released on bail by the High Court of Gujarat.
(f) On 14.07.2012, the appellant filed a complaint under
Section 376 read with Section 120B of the IPC to the Police
Inspector, Meghani Nagar Police Station, Ahmedabad
narrating the alleged offence cited above to have occurred
during the period of remand.
On the very same date, based
on the instructions of the Additional Commissioner of Police,
Sector II, the investigation in respect of the above offence
was transferred to the Mahila Police Station.
It was alleged by
the appellant herein that in spite of the complaint regarding
a serious offence of rape, no FIR was lodged at Mahila Police
Station.
Vide notices dated 15/16.07.2012, the Police
Inspector, Mahila Police Station called her to record her
4Page 5
statement, but she refused to give any statement on the
pretext of non-filing of FIR. 
(g) Being aggrieved by the non-filing of FIR, the appellant
herein filed Special Criminal Application No. 2206 of 2012
before the High Court praying for a direction to the
authorities concerned to register an FIR and also to refer the
matter to the CBI for investigation.
In the meantime, on
27.07.2012, Chief of the American Citizens Services in the
American Consulate, in pursuance of the e-mail dated
20.06.2012 forwarded an e-mail to gain access to the
appellant herein.
The High Court, vide order dated
08.11.2012, dismissed the petition filed by the appellant
herein. Being aggrieved by the order of the High Court, the
appellant herein has preferred this appeal by way of special
leave.
4) Heard Mr. Jaideep Gupta, learned senior counsel for the
appellant and Mr. L. Nageshwar Rao, learned senior counsel
for the respondents.
5) In order to understand the claim of the appellant, it is
useful to mention the relief prayed for in the writ petition
5Page 6
filed under Article 226 of the Constitution of India. In the said
writ petition, she prayed for appropriate direction to the
authorities concerned, viz., the Police Inspector (Respondent
No. 2 therein), Meghani Nagar Police Station, Ahmedabad,
Gujarat to register an FIR for the offence punishable under
Sections 376, 114 and 120B of the IPC in connection with the
written complaint dated 14.07.2012 given by her and,
thereafter, to transfer the investigation of the said registered
FIR to the CBI for further investigation.
6) It is not in dispute that with reference to the land
situated at Vadodra, a complaint has been filed against the
appellant and her father which was registered as FIR being
CR No.5/2012 at Gandhinagar Police Station. It is further
seen that the appellant is an NRI/foreign national of Indian
origin and she had been roped in the earlier complaint
relating to the land dispute because she had a joint account
with her father. Though it is pointed out that in order to
pressurize the appellant for certain other land disputes at
Rajkot, she has been arrested and raped, since we are
concerned about her grievance about the alleged rape in
6Page 7
police custody, there is no need to elaborate the details
regarding the FIR being CR No. 5/2012.
It is the grievance of
the appellant that the arrest was made at midnight without
the assistance of lady police personnel and during the period
of police custody, she was raped by the Investigating Officer
and other police personnel for which a complaint dated
14.07.2002 was made to Respondent No. 2 herein but no
action was taken on the said complaint. Being aggrieved by
the non-registration of the complaint, the appellant
approached the High Court, under Article 226 of the
Constitution, praying for the reliefs mentioned above. It is
also highlighted that inasmuch as the police personnel are
involved in the crime and in view of the attitude of the State
police in not registering her complaint, she prayed for
investigation by the CBI.
7) It is the specific stand of the respondent-State that the
original complaint was made by one Divyangbhai Jha which
was registered as CR No. 5/2012 under Sections 420, 406
and 120B of IPC against the father of the appellant and the
appellant herein with regard to the alleged land transaction
7Page 8
at Vadodra. It is their further claim that thereafter, she had
been arrested and at the time of her actual arrest, though
female police personnel were not present but immediately
thereafter she was taken to the nearest police station where
female police personnel were present and they remained
with the accused throughout. It is pointed out by the State
that there was no complaint by the appellant with regard to
any harassment from the place of her arrest till she was
taken to the nearest police station and there was also no
violation of the guidelines or statutory provisions.
It is further
pointed out that after her arrest on 24.05.2012, she was
produced before the Magistrate and, thereafter, her remand
was granted for 5 days, i.e., from 24.05.2012 to 29.05.2012
and on 29.05.2012, again she had been produced before the
Magistrate but at no point of time, no complaint about
harassment or alleged offence of rape has been made to the
judicial officer. It is also pointed out that during the period of
remand, she was taken to her house twice where her mother
was also present and she had occasion to inform the same to
her, but no grievance was made to anyone. Likewise, on
8Page 9
29.05.2012, when she was produced before the Magistrate
and was remanded to the judicial custody, she had not made
any statement or complaint to the Magistrate about the
alleged offence of rape during the custody. 
It is further
pointed out that she had not disclosed the same to anyone
including her mother, judicial officer or even to the doctors
who have examined her. Her medical examination was also
done by the Doctors at the Civil Hospital on 26.05.2012 and
29.05.2012.
It is further pointed out that thereafter, in
Sabarmati Jail, she was examined by female jail doctor on
29.05.2012, 01.06.2012 and 02.06.2012. 
It is further pointed
out that even in the bail application filed before the High
Court, no such grievance has been made with regard to the
alleged offence of rape while she was in custody.
Finally, it is
pointed out by the State that when the statement of the
appellant was sought to be recorded on 14.07.2012, she did
not respond and again when she was called on 16.07.2012
and a reminder was sent, she was not present at her house
on 17.07.2012 and even after further efforts, she was not
available. By pointing out all these instances, it is projected
9Page 10
by the State that if the appellant has any grievance that her
complaint has not been registered as an FIR, the Code of
Criminal Procedure, 1973 (in short ‘the Code’) provides that
an application could be made to the Magistrate having
jurisdiction who may proceed after making an inquiry or after
getting further materials. In view of the same, it is pointed
out that the High Court was fully justified in dismissing the
petition filed under Section 226 and directing the appellant
to avail the remedy provided under the Code before the
court of Magistrate.
8) It is clear that if it is a case of rape at the hands of the
police officials that too in the custody, undoubtedly, the
persons concerned are answerable for not registering her
written complaint. We have already referred to the earlier
complaint by some of the parties relating to the land dispute
which resulted in the FIR being CR No. 5/2012 for which the
appellant and her father were arrested. We also noted that
when the appellant had various opportunities of disclosing
her grievance including the alleged offence of rape to various
10Page 11
persons, viz., her mother, female medical officers and judicial
Magistrate, admittedly, such remedy was not availed by her.
9) It is the assertion of the senior counsel for the appellant
that when the information regarding a cognizable offence is
laid before the officer in-charge of a police station under
Section 154 of the Code, he is bound to register it as an FIR
without any inquiry and he has no discretion to even consider
whether the allegations made are prima facie borne out or
not. In order to answer this question, we have to examine the
background of the case which we have already adverted to
including the FIR being CR No. 5/2012 relating to the land
dispute and we have also pointed out that when the
appellant had various opportunities to disclose the alleged
offence of rape or misdeeds, it has not been disclosed
throughout the period neither to her mother when she was
taken to her home twice during the period of remand nor to
the female doctors of the Civil Hospital who examined her
nor to the doctors of the Jail authorities. We have also noted
that even at the time of production before the Magistrate
after the completion of the period of remand and
11Page 12
subsequently, when she was remanded to the judicial
custody, nothing had been disclosed about any such misdeed
or ill-treatment or harassment.
10) An elaborate discussion had been made with regard to
Section 154 of the Code in State of Haryana and Ors. vs.
Bhajan Lal and Ors., 1992 Supp (1) SCC 335.
It is seen
from the discussion that the police officer in charge of a
police station is obliged to register a case and then to
proceed with the investigation subject to the provisions of
Sections 156 and 157 of the Code. 
It is further seen that if
the police officer in-charge of a police station refuses to
exercise the jurisdiction vested in him and register the case
on information of cognizable offence and violates the
statutory right, the person aggrieved, can send the
substance of the same to the higher authority, who, in turn, if
satisfied that the information forwarded to him discloses a
cognizable offence, can investigate the case himself or direct
the investigation to be made by a subordinate officer. 
The
elaborate discussion clearly shows that before registration of
the FIR, an officer should be satisfied. 
In other words, if the
12Page 13
facts are such which require some inquiry for the satisfaction
about the charges or allegations made in the FIR or he may
have entertained a reasonable belief or doubt, then he may
make some inquiry. 
To put it clear, by virtue of the
expression “reason to suspect the commission of an
offence”, we are of the view that commission of cognizable
offence, based on the facts mentioned has to be considered
with the attending circumstances, if available. In other
words, if there is a background/materials or information, it is
the duty of the officer to take note of the same and proceed
according to law. 
It is further made clear that if the facts are
such which require some inquiry for the satisfaction about
the charges or allegations made in the FIR then such a
limited inquiry is permissible. 
11) With regard to the direction for investigation by the CBI,
a Constitution Bench of this Court 
in State of West Bengal
and Ors. vs. Committee for Protection of Democratic
Rights, West Bengal and Ors., (2010) 3 SCC 571 
clarified
that despite wide powers conferred by Articles 32 and 226 of
the Constitution, the Courts must bear in mind certain self-
13Page 14
imposed limitations on the exercise of such constitutional
powers. Insofar as the question of issuing a direction to CBI
to conduct an investigation, the Constitution Bench has
observed that 
“although no inflexible guidelines can be laid
down to decide whether or not such power should be
exercised but time and again it has been reiterated that such
an order is not to be passed as a matter of routine or merely
because a party has leveled some allegations against the
local police. 
This extraordinary power must be exercised
sparingly, cautiously and in exceptional situations where it
becomes necessary to provide credibility and instill
confidence in investigations or where the incident may have
national and international ramifications or where such an
order may be necessary for doing complete justice and
enforcing the fundamental rights. 
Otherwise, the CBI would
be flooded with a large number of cases and with limited
resources, may find it difficult to properly investigate even
serious cases and in the process lose its credibility and
purpose with unsatisfactory investigations.”
14Page 15
12) Having regard to the Scheme of the Code, various
provisions as to the course to be adopted and in the light of
the peculiar/special facts and circumstances which we have
already noted in the earlier paras, we are satisfied that the
High Court was fully justified in directing the appellant to
avail the recourse to the remedy as provided in the Code by
filing a complaint before the Magistrate. 
We are also
satisfied that the High Court, in order to safeguard the stand
of the appellant, issued certain directions to remedy her
grievance against the persons concerned. 
We confirm the
decision of the High Court in the light of the facts relating to
the background of the case, particularly, the land dispute,
the complaint regarding the same and various subsequent
circumstances including her silence about the non-disclosure
of the alleged rape before her mother on two occasions and
before the female doctors at Civil Hospital as well as
Sabarmati Jail and also before the Magistrate. 
It is further
made clear that while affirming the decision of the High
Court, it cannot be presumed that we are underestimating
the grievance of the appellant herein and it is for the
15Page 16
Magistrate concerned to proceed in accordance with the
provisions of the Code and arrive at an appropriate
conclusion.
13) With the above observation, the appeal is dismissed. 
...…………….…………………………J.
(P. SATHASIVAM)
.…....…………………………………J.
(M.Y.EQBAL)
NEW DELHI;
JULY 1, 2013.
16

NO REDUCTION OF SENTENCE ON THE GROUND OF COMPROMISE IN THE ABSENCE OF ANY CHALLENGE TO THE CONVICTION = Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence…..”= In view of the above, we reiterate that in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. We also reiterate that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The Courts must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment. Though it is stated that both the parties have amicably settled, in view of the fact that the offence charged under Section 326 is non compoundable and also in the light of serious nature of the injuries and no challenge as to conviction, we are of the view that the High Court is not justified in reducing the sentence to the period already undergone. 17) Accordingly, we set aside the order of the High Court and restore the sentence imposed on the respondents herein. Consequently, the appeal filed by the State is allowed and the respondents-accused (A-1 to A-3) are directed to surrender within a period of four weeks from today, failing which, the trial Judge is directed to take appropriate steps for sending them to prison to undergo the remaining period of sentence.

published in http://judis.nic.in/supremecourt/filename=40484
Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 809 OF 2013
(Arising out of S.L.P. (Crl.) No. 7211 of 2012)
State of M.P. .... Appellant(s)
Versus
Najab Khan & Ors. ....
Respondent(s)
J U D G M E N T
P.Sathasivam, J.
1) Leave granted.
2) This appeal is directed against the final judgment and
order dated 13.12.2011 passed by the High Court of Madhya
Pradesh, Bench at Gwalior in Criminal Appeal No. 150 of
2006 whereby the High Court partly allowed the appeal filed
by the respondents herein by maintaining the conviction and
reducing their sentence to the period already undergone (i.e.
14 days) while affirming the decision dated 08.02.2006
1Page 2
passed by the Additional Sessions Judge-I, Guna (MP) in
Sessions Trial No. 311 of 2001 with respect to the conviction
of respondents herein under Section 326 read with Section
34 of the Indian Penal Code, 1860 (in short “IPC”).
3) Brief facts:
(a) On 11.08.2001, in the morning, when Mullo Bai, sister
of Fida Hussain-the complainant, was passing through the
field of Mohabbatdin - co-accused, at that time, Mohabbatdin
abused her and told her not to pass through his field. On
this, Mullo Bai assured him that she will not pass through his
field in future. On the same day, in the evening, at about
7.00 p.m., when Fida Hussain, along with Ahmed Hussain,
Gulabuddin and Guddu, was going to the shop of one Nawab,
on their way near the hand pump, Najab Khan and
Mohabbatdin having spade in their hands and Gani Khan
holding a danda (stick) in his hand along with Munnawar Ali
came at the spot and surrounded Fida Hussain. Fida Hussain
tried to escape but could not succeed and Mohabbatdin
attacked him with the spade due to which he sustained
injury below his left shoulder and left arm. In order to save
2Page 3
him, the other persons, viz., Guddu and Gulabuddin, who
were accompanying Fida Hussain, intervened. After beating
Fida Hussain, the accused persons fled away from the spot.
Thereafter, Fida Hussain went to the Radhogarh Police
Station and an FIR was lodged which was registered as
Crime No. 248 of 2001.
(b) During the course of investigation, on 22.08.2011,
Najab Khan was arrested and Gani Khan and Munnawar Ali
were arrested on 10.09.2001. The police also got recovered
the weapons (spades and stick) used in the commission of
the aforesaid act.
(c) After the investigation, a charge-sheet was filed against
the respondents herein under Sections 307, 341, 326 read
with 34 IPC and the case was committed to the Court of the
First Additional Sessions Judge-I, Guna (MP) which was
numbered as Sessions Trial No. 311 of 2001. Further,
besides the accused persons/respondents herein,
Mohabbatdin was also charged under Sections 341 and 307
of IPC but vide order dated 11.10.2002, passed by the High
Court in Revision No. 378 of 2002, it was directed to stay the
3Page 4
proceedings against him and to continue the trial against
rest of the persons i.e., the respondents herein.
(d) During the trial, on a compromise between the accused
persons and Fida Hussain-the complainant, the accused
persons were acquitted under Section 341 of IPC.
(e) By order dated 08.02.2006, the Additional Sessions
Judge, convicted the respondents herein for the offence
punishable under Section 326 read with Section 34 of IPC
and sentenced them to undergo rigorous imprisonment (RI)
for three years along with a fine of Rs.500/- each, in default,
to further undergo RI for 3 months.
(f) Against the said order, the respondents moved an
appeal being Criminal Appeal No. 150 of 2006 before the
High Court. The High Court, by impugned judgment dated
13.12.2011, partly allowed the appeal by maintaining the
conviction of the respondents herein and reduced their
sentence to the period already undergone.
(g) Aggrieved by the said order, the State has filed this
appeal by way of special leave.
4Page 5
4) Heard Mr. C.D. Singh, learned counsel for the appellantState and Mr. Lakhan Singh Chauhan, learned counsel for
the respondent-accused.
5) The only point for consideration in this appeal is
whether the High Court is justified in reducing the sentence
to the period already undergone, viz., 14 days, without
providing any cogent reason for the conviction under Section
326 read with Section 34 IPC.
6) In view of the fact that the respondents herein-accused
appellants before the High Court did not challenge the
conviction but only prayed for reduction of sentence
awarded by the trial Court, there is no need to traverse the
details regarding the conviction. The fact remains that these
persons were convicted by the trial Court under Section 326
read with Section 34 IPC and sentenced to RI for three years
along with a fine of Rs. 500/- each.
7) It is stated before the High Court that during the trial
they were in custody for a period of 14 days and the offence
has already been compounded by the complainant and the
appeal is pending since 2006. The High Court, taking note of
5
the above said aspects, reduced their sentence to the period
already undergone.
8) It is relevant to point out that after the registration of
the FIR, the complainant was sent for the medical
examination which was conducted by Dr. Anupam Singh
(PW-9) and after examination, the doctor found the following
two injuries on the person of the complainant:
“a. An incised wound of 15 inches long extending from left
scapula to left shoulder joint bone deep bleeding present.
b. An incised would of 1 inch long inter scapula
bleeding was present. The doctor also opined that injuries
has been caused by hard and sharp object and was of
grievous nature. The doctor also opined that the said
injuries could have supposed a threat to the life of the
complainant.”
It is further seen that on 13.08.2011, the x-ray of the chest
and shoulder of the complainant was examined by Dr.
Sitaram Raghuvanshi (PW-8) who found fracture of left
scapula divided into two pieces extending from glenoid
cavity with dislocation of left shoulder joint. Considering
such injuries, due to which the complainant remained in
hospital for 29 days, we are of the view that the High Court
is not justified in reducing the sentence to the period already
6Page 7
undergone without assigning any acceptable and special
reason for the same. The High Court also failed to take note
of the opinion of the doctor that the injuries inflicted could
have posed threat to the complainant’s life.
9) It is settled principle of law that the punishment should
meet the gravity of the offence committed by the accused
and courts should not show undue sympathy with the
accused persons. This Court has repeatedly stressed the
central role of proportionality in sentencing of offenders in
numerous cases. In Shailesh Jasvantbhai and Another
vs. State of Gujarat and others, (2006) 2 SCC 359, this
Court held that the sentence imposed is not proportionate to
the offence committed, hence not sustainable in the eyes of
law. It was further observed as under:
“7. The law regulates social interests, arbitrates conflicting
claims and demands. Security of persons and property of
the people is an essential function of the State. It could be
achieved through instrumentality of criminal law.
Undoubtedly, there is a cross-cultural conflict where living
law must find answer to the new challenges and the courts
are required to mould the sentencing system to meet the
challenges. The contagion of lawlessness would undermine
social order and lay it in ruins. Protection of society and
stamping out criminal proclivity must be the object of law,
which must be achieved by imposing appropriate sentence.
Therefore, law as a cornerstone of the edifice of “order”
7Page 8
should meet the challenges confronting the society.
Friedman in his Law in Changing Society stated that: “State
of criminal law continues to be - as it should be -a decisive
reflection of social consciousness of society.” Therefore, in
operating the sentencing system, law should adopt the
corrective machinery or deterrence based on factual matrix.
By deft modulation, sentencing process be stern where it
should be, and tempered with mercy where it warrants to
be. The facts and given circumstances in each case, the
nature of the crime, the manner in which it was planned and
committed, the motive for commission of the crime, the
conduct of the accused, the nature of weapons used and all
other attending circumstances are relevant facts which
would enter into the area of consideration.
8. Therefore, undue sympathy to impose inadequate
sentence would do more harm to the justice system to
undermine the public confidence in the efficacy of law and
society could not long endure under such serious threats. It
is, therefore, the duty of every court to award proper
sentence having regard to the nature of the offence and the
manner in which it was executed or committed etc.”
10) This position was reiterated by a three-Judge Bench
of this Court in Ahmed Hussein Vali Mohammed Saiyed
and Anr. vs. State of Gujarat, (2009) 7 SCC 254, wherein
it was observed as follows:-
“99.….The object of awarding appropriate sentence should
be to protect the society and to deter the criminal from
achieving the avowed object to law by imposing
appropriate sentence. It is expected that the courts would
operate the sentencing system so as to impose such
sentence, which reflects the conscience of the society and
the sentencing process has to be stern where it should be.
Any liberal attitude by imposing meager sentences or
taking too sympathetic view merely on account of lapse of
time in respect of such offences will be result-wise counter
productive in the long run and against the interest of
society which needs to be cared for and strengthened by
string of deterrence inbuilt in the sentencing system.
8Page 9
100. Justice demands that courts should impose
punishment befitting the crime so that the courts reflect
public abhorrence of the crime. The court must not only
keep in view the rights of the victim of the crime and the
society at large while considering the imposition of
appropriate punishment. The court will be failing in its duty
if appropriate punishment is not awarded for a crime which
has been committed not only against the individual victim
but also against the society to which both the criminal and
the victim belong.”
In this case, the court further goes to state that meager
sentence imposed solely on account of lapse of time without
considering the degree of the offence will be counter
productive in the long run and against the interest of society.
11) In Jameel vs. State of Uttar Pradesh, (2010) 12
SCC 532, this Court reiterated the principle by stating that
the punishment must be appropriate and proportional to the
gravity of the offence committed. Speaking about the
concept of sentencing, this Court observed thus: -
“15. In operating the sentencing system, law should adopt
the corrective machinery or deterrence based on factual
matrix. By deft modulation, sentencing process be stern
where it should be, and tempered with mercy where it
warrants to be. The facts and given circumstances in each
case, the nature of the crime, the manner in which it was
planned and committed, the motive for commission of the
crime, the conduct of the accused, the nature of weapons
used and all other attending circumstances are relevant
facts which would enter into the area of consideration.
16. It is the duty of every court to award proper sentence
having regard to the nature of the offence and the manner
in which it was executed or committed. The sentencing
9Page 10
courts are expected to consider all relevant facts and
circumstances bearing on the question of sentence and
proceed to impose a sentence commensurate with the
gravity of the offence.”
12) In Guru Basavaraj @ Benne Settapa vs. State of
Karnataka, (2012) 8 SCC 734, while discussing the concept
of appropriate sentence, this Court expressed that:
“It is the duty of the court to see that appropriate sentence
is imposed regard being had to the commission of the
crime and its impact on the social order. The cry of the
collective for justice, which includes adequate punishment
cannot be lightly ignored.”
13) This Court, in Gopal Singh vs. State of Uttarakhand,
JT 2013 (3) SC 444 held as under:-
“18. Just punishment is the collective cry of the society.
While the collective cry has to be kept uppermost in the
mind, simultaneously the principle of proportionality
between the crime and punishment cannot be totally
brushed aside. The principle of just punishment is the
bedrock of sentencing in respect of a criminal offence…..”
14) Recently, the above proposition is reiterated in Hazara
Singh vs. Raj Kumar & Ors., 2013 (6) Scale 142.
15) In view of the above, we reiterate that in operating the
sentencing system, law should adopt the corrective
machinery or deterrence based on factual matrix. The facts
10Page 11
and given circumstances in each case, the nature of the
crime, the manner in which it was planned and committed,
the motive for commission of the crime, the conduct of the
accused, the nature of weapons used and all other attending
circumstances are relevant facts which would enter into the
area of consideration. 
We also reiterate that undue
sympathy to impose inadequate sentence would do more
harm to the justice system to undermine the public
confidence in the efficacy of law. 
It is the duty of every court
to award proper sentence having regard to the nature of the
offence and the manner in which it was executed or
committed. The Courts must not only keep in view the
rights of the victim of the crime but also the society at large
while considering the imposition of appropriate punishment. 
16) Though it is stated that both the parties have amicably
settled, in view of the fact that the offence charged under
Section 326 is non compoundable and also in the light of
serious nature of the injuries and no challenge as to
conviction, we are of the view that the High Court is not
11Page 12
justified in reducing the sentence to the period already
undergone. 
17) Accordingly, we set aside the order of the High Court
and restore the sentence imposed on the respondents
herein. Consequently, the appeal filed by the State is
allowed and the respondents-accused (A-1 to A-3) are
directed to surrender within a period of four weeks from
today, failing which, the trial Judge is directed to take
appropriate steps for sending them to prison to undergo the
remaining period of sentence. 
………….…………………………J.
(P. SATHASIVAM)
 ………….…………………………J.
(M.Y. EQBAL)
NEW DELHI;
JULY 01, 2013.
12

sec.302 ,/sec. 323 I.P.C. = No grounds to convert the case from sec.302 to sec.323 of Indian penal code = The Trial Court appreciated the evidence and came to conclusion that the respondents-accused were the aggressive party and they were five in numbers and all of them were armed.= Non- explanation of injuries on accused not fatal to the prosecution always = Before the non-explanation of the injuries on the person of the accused, by the prosecution witnesses, may be held to affect the prosecution case, the Court has to be satisfied of the existence of two conditions: (i) that the injuries on the person of the accused were also of a serious nature; and (ii) that such injuries must have been caused at the time of the occurrence in question. Where the evidence is clear, cogent and creditworthy; and where the court can distinguish the truth from falsehood, the mere fact that the injuries on the person of the accused are not explained by the prosecution cannot, by itself, be the sole basis to reject the testimony of the prosecution witnesses and consequently, the whole case of the prosecution.

PUBLISHED IN http://judis.nic.in/supremecourt/filename=40483
Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOs.1425-1426 of 2007
State of Rajasthan …Appellant
Versus
Shiv Charan & Ors. …Respondents
J U D G M E N T
Dr. B.S. CHAUHAN, J.
1. These appeals have been preferred against the impugned
judgment and order dated 20.9.2005, passed by the High Court
of Judicature of Rajasthan at Jodhpur (Jaipur Bench) in D.B.
Criminal Appeal Nos.1454 and 1458 of 2002, by way of which,
the High Court has converted the conviction of the respondents
herein, from one under Sections 302/149 of Indian Penal Code,
1860 (hereinafter referred to as `the IPC’) and Section 148 IPC
to another under Section 323 IPC, and the sentence awarded by
Page 2
the Sessions Court to life imprisonment with fine, has also been
substituted by a sentence of one year.
2. Facts and circumstances giving rise to these appeals are that:
A. A complaint was submitted by Batti Lal (PW.1) in the Police
Station, Bamanwas on 28.8.2000 at about 9 a.m., that on the said day,
his brother Prahlad (since deceased), had been grazing buffaloes. The
respondents herein alongwith one Mahesh, absconder, had attacked
Prahlad and inflicted injuries on his person. Mahesh had hit Prahlad
on the head with a rod, whereas the respondents had inflicted injuries
with lathis. Kedar-accused had tried to push Prahlad to crush him
under the tractor driven by the accused, but could not succeed.
Prahlad had then been taken to the local hospital, from where he was
referred to Jaipur Hospital, but he succumbed to his injuries while in
transit.
B. On the basis of the said report, a case under Sections 147, 148,
149 and 302 IPC was registered against the respondents and Mahesh,
absconder, and investigation commenced. Autopsy on the dead body
of Prahlad was performed. The respondents were arrested. All
necessary memos were drawn up, and upon completion of the
2Page 3
investigation, a charge sheet was filed against the respondents.
However, the investigation against Mahesh remained pending, as he
had been absconding.
C. The trial commenced. The prosecution examined 15 witnesses
in support of its case. The respondents were examined under Section
313 of the Code of Criminal Procedure, 1973 (hereinafter referred to
as `the Cr.P.C.’). They not only pleaded innocence but also examined
one witness in defence. Upon completion of the trial, the learned
Trial Court convicted and sentenced the respondents as has been
referred to hereinabove.
D. Aggrieved, the respondents preferred criminal appeals before
the High Court, which were allowed vide impugned judgment and
order.
 Hence, these appeals.
3. Shri Ajay Veer Singh, learned counsel appearing for the State,
has submitted, that in light of the grievous injuries found on the body
of Prahlad (deceased), which are undeniably homicidal in nature, the
case certainly did not warrant the conversion of the conviction of the
respondents from under Sections 302/149/148 IPC, to one under
3Page 4
Section 323 IPC. There was sufficient evidence on record to show
that the respondents were the aggressors, and the mere pendency of
the cross case before the Trial Court should not give leverage to the
High Court to take such a lenient view. Therefore, the appeals
deserve to be allowed.
4. Per contra, Shri G.K. Bansal, learned counsel appearing for the
respondents has submitted, that the High Court has appreciated the
entire evidence in correct perspective, and upon realising that it was a
free fight, has held that it was not possible to determine, who were the
actual aggressors? The view taken by the High Court does not require
any interference whatsoever. Thus, the appeals lack merit and are
liable to be dismissed.
5. We have considered the rival submissions made by learned
counsel for the parties and perused the record.
6. Post-mortem on the body of Prahlad, deceased, was conducted
by the team/Board consisting of Dr. N.K. Meena and Dr. Ramesh
Chand Gupta (PW.9). The report (Ex.P-14), revealed the following
ante-mortem injuries:
 (1) “Lacerated wound 3” x ½” x bone deep - Mid of scalp.
4Page 5
(2) Contusion 2” x ½” (Rt.) wrist joint of both bones.
 (3) Abrasion ½ x ½ on front of Rt. ear.
 (4) Multiple linear abrasion on the left lower limb.
 In the opinion of the Doctors, the cause of death was shock due
to injury on scalp leading to brain hemorrhage.
7. The injuries found on the person of respondent Shiv Charan
were as follows:
(1) Abrasion with swelling on Lt. Hand dorsal aspect of palms at
1 cm below junction of little finger.
(2) Abrasion with swelling of Rt. Side parietal region at skull.
(3) Complaint of pain whole back with injury.
8. The injuries found on the person of respondent Kedar were as
follows:
(1) Lacerated wound on Rt. Parietal region on skull. Scalp deep
soft clotted blood, 5 cm x ½ cm.
(2) Lacerated wound on center of skull soft clotted blood 4 cm x
½ cm scalp deep.
(3) Complaint of Pain Lt. Parietal region with swelling 2 cm x 2
cm.
(4) Complaint of pain Rt. Arm.
5Page 6
9. Ramdhan Meena (PW.2) has deposed that while Prahlad had
been grazing the buffaloes in the morning, Mahesh, armed with an
iron rod, alongwith the co-accused – respondents, who were armed
with lathis, had come there. They all started abusing Prahlad. Mahesh
had inflicted a blow on the head of Prahlad with an iron rod, and Shiv
Charan had hit him with a lathi on the left side of the face. Nehru had
then pushed Prahlad in front of the tractor driven by the accusedrespondents, to crush him under it, but could not succeed. Prahlad,
injured, had then been taken to a hospital in Jaipur, but died on the
way.
This witness was declared hostile, as he did not support the case
of the prosecution.
10. Khushi Chand (PW.5), deposed that Prahlad (deceased), had
been grazing buffaloes. The respondents, alongwith Mahesh had come
there on a tractor. They had started quarrelling with Prahlad.
Mahesh had first assaulted Prahlad on the head with an iron rod, and
thereafter, the respondents herein had assaulted Prahlad with lathis.
The witnesses had tried to save Prahlad, but the accused had fled in
their tractor by road after beating him. Prahlad had then been taken to
6
the Gangapur Hospital in a cart, after which he had been referred to
Jaipur Hospital. He died on the way.
11. Gopal (PW.4) and Phool Chand (PW.7), had given the same
version of events, as they had also been grazing their buffaloes/cattles
alongwith Prahlad (deceased).
12. Dr. Shiv Singh Meena (PW.15), who had examined Prahlad in
his injured condition, has proved the injuries on his person.
Dr. Ramesh Chand Gupta (PW.9), who was the member of the
board, which conducted the postmortem, deposed that the layer
around the brain had been fractured. There was fracture in his right
parietal bone, and fractures on the right radius and alina bone. In his
opinion, the cause of death was hemorrhage inside the brain. The
injury found on the head of the deceased was sufficient to cause death
in the normal course of nature.
13. Jitendra Jain (PW.12), the Investigating Officer, proved all the
recoveries, and answered all questions relating to the investigation.
He also admitted that a cross case had been registered by the
respondents in regard to the very same incident, against the
7Page 8
complainant party, as accused Kedar and Shiv Charan had also
sustained injuries in the said incident.
14. The Trial Court has appreciated the entire evidence on record
and has thereafter, rejected the version of Shiv Charan and Kedar,
that they had received injuries as referred to in the cross case, while
acting in self-defence. The court has also rejected the theory of grave
and sudden provocation, and also that the quarrel had taken place
suddenly, and that maar-peet had started without any previous
intention or planning. In the instant case, the previous enmity
between the parties on mortgaging the land also stood established.
Considering the gravity of the injuries and the evidence on record, the
Trial Court has convicted and sentenced the respondents as has been
referred to hereinabove.
15. The High Court while deciding the appeals, has taken the
following circumstances into consideration:
(i) The fatal injury on the head of Prahlad (deceased), has been
attributed to Mahesh, the absconding accused;
(ii) The informant Batti Lal, was not an eye witness to the
incident, and who got the FIR registered on the basis of
hearsay information;
8Page 9
(iii) The injuries sustained by the accused, particularly by
accused Kedar, suggest that the complainant party had in
fact been aggressors; and
(iv) A cross case was registered against the complainant party
and the same was pending.
 The High Court came to the conclusion after taking into
consideration the number of injuries suffered by the accused Kedar
and Shiv Charan, that an inference could easily be drawn to the effect
that there had been some soft pedaling in the investigation, and that
the prosecution had not revealed the genesis of the incident. The High
Court, thus, very abruptly reached the conclusion that as there had
been no meeting of minds just prior to the incident, or even at the time
of incident, the respondents were responsible for their individual acts.
Since a fatal injury had been found on the head of the deceased, which
had been attributed to be caused by co-accused Mahesh, an absconder,
the conviction and sentences were altered as referred to hereinabove.
16. The pivotal question of applicability of Section 149 IPC has its
foundation on constructive liability which is the sine qua non for its
application. It contains essentially only two ingredients, namely, (I)
offence committed by any member of any unlawful assembly
9Page 10
consisting five or more members and; (II) such offence must be
committed in prosecution of the common object (Section 141 IPC) of
the assembly or members of that assembly knew to be likely to be
committed in prosecution of the common object. It is not necessary
that for common object there should be a prior concert as the common
object may be formed on spur of the moment. Common object would
mean the purpose or design shared by all members of such assembly
and it may be formed at any stage. Even if the offence committed is
not in direct prosecution of the common object of the unlawful
assembly, it may yet fall under second part of Section 149 IPC if it is
established that the offence was such, as the members knew, was
likely to be committed. For instance, if a body of persons go armed to
take forcible possession of the land, it may be presumed that someone
is likely to be killed, and all the members of the unlawful assembly
must be aware of that likelihood and, thus, each of them can be held
guilty of the offence punishable under Section 149 IPC. The court
must keep in mind the distinction between the two parts of Section
149 IPC, and, once it is established that unlawful assembly had a
common object, it is not necessary that all persons forming the
unlawful assembly must be shown to have committed some overt act,
10Page 11
rather they can be convicted for vicarious liability. However, it may
be relevant to determine whether the assembly consist of some
persons which were merely passive witnesses and had joined the
assembly as a matter of ideal curiosity without intending to entertain
the common object of the assembly. However, it is only the rule of
caution and not the rule of law. Thus, a mere presence or association
with other members alone does not per se be sufficient to hold
everyone of them criminally liable for the offence committed by the
others unless there is sufficient evidence on record to show that each
intended to or knew the likelihood of commission of such an
offending act, being a member of unlawful assembly as provided for
under Section 142 IPC. It may also not be a case of group rivalry or
sudden or free fight or an act of the member of unlawful assembly
beyond the common object. (Vide: Baladin & Ors. v. State of U.P.,
AIR 1956 SC 181; Masalti v. State of U.P., AIR 1965 SC 202;
Chandra Bihari Gautam & Ors. v. State of Bihar, AIR 2002 SC
1836; Ramesh & Ors. v. State of Haryana, AIR 2011 SC 169;
Ramachandran & Ors. Etc. v. State of Kerala, AIR 2011 SC 3581;
Onkar & Anr. v. State of Uttar Pradesh, (2012) 2 SCC 273; Roy
11Page 12
Farnandez v. State of Goa & Ors., AIR 2012 SC 1030; and
Krishnappa & Ors. v. State of Karnataka, AIR 2012 SC 2946).
17. Thus, for resorting to the provisions of Section 149 IPC, the
prosecution has to establish that (i) there was an assembly of five
persons; (ii) the assembly had a common object; and (iii) the said
common object was to consist one or more of the five illegal objects
specified in Section 141 IPC.
There is evidence on record to show that all the respondents
had, in fact, come together on a tractor. They had started abusing
Prahlad (deceased). Mahesh, absconding accused, had hit Prahlad
(deceased), with an iron rod, on his head, and the respondentsaccused had also hit him with lathis. Even after inflicting first injury
on the head by Mahesh, beating by the present respondents went on
and thereafter, the accused ran away. Therefore, in light of such a
fact-situation, it is clear that 5 persons had come fully armed, in a
vehicle and all of them caused injuries to Prahlad, who succumbed to
such injuries. Here, it is actually a case where common object of
unlawful assembly stood translated into action and members of the
assembly succeeded in their mission. Thus, the view taken by the
High Court that the respondents are liable for the acts attributed to
12
them individually and not collectively, being perverse is not worth
acceptance.
18. The High Court has committed an error in presuming that the
case was one where a free fight had occurred, and therefore, the
provisions of Sections 148 and 149 IPC were not attracted; the
complainant party were aggressors; and there had been some soft
pedaling in the investigation. Such findings are based on no evidence
whatsoever, and hence, are held to be perverse.
19. So far as the injuries found on the person of accused Shiv
Charan and Kedar are concerned, the injuries of Shiv Charan are
merely abrasions. Dr. M.K. Meena (DW.1) opined that as injuries
found on the person of Kedar could be caused by fall on stone and
some of his injuries were of superficial nature. The Trial Court dealt
with issue of injuries suffered by the said accused by making
reference to the statement of Mohanlal (DW.2), who had stated that
all the accused persons were going on a tractor to attend a claim case.
The said witness was also with them and when they reached near
Bandawal, 6-7 persons surrounded the tractor and stopped it. They
started beating Kedar and Shiv Charan and caused injuries to them.
13Page 14
In fact, this has been a consistent case of all the accused persons
while their statements were recorded under Section 313 Cr.P.C. None
of the accused has explained how the injuries were caused to Prahlad
(deceased).
The Trial Court appreciated the evidence and came to
conclusion that the respondents-accused were the aggressive party and they were five in numbers and all of them were armed. Thus, the High
Court could not be justified in reversing the findings of fact recorded
by the Trial Court without making reference to any evidence.
20. Non-explanation of serious injuries on the person of accused
may be fatal to the prosecution case. But where the injuries sustained
by the accused are minor in nature, even in absence of proper
explanation of prosecution, story of the prosecution cannot be
disbelieved. (Vide: Laxman v. State of Maharashtra, (2012) 11
SCC 158)
21. This Court considered the issue in Mano Dutt & Anr. v. State
of Uttar Pradesh, (2012) 4 SCC 79 and held as under:
“38. The question, raised before this Court for its
consideration, is with respect to the effect of non explanation of injuries sustained by the accused persons.
In this regard, this Court has taken a consistent view that
the normal rule is that whenever the accused sustains
injury in the same occurrence in which the complainant
14
suffered the injury, the prosecution should explain the
injury upon the accused. But, it is not a rule without
exception that if the prosecution fails to give explanation,
the prosecution case must fail.
39. Before the non-explanation of the injuries on the
person of the accused, by the prosecution witnesses, may
be held to affect the prosecution case, the Court has to
be satisfied of the existence of two conditions:
(i) that the injuries on the person of the accused were
also of a serious nature; and
(ii) that such injuries must have been caused at the
time of the occurrence in question.
40. Where the evidence is clear, cogent and
creditworthy; and where the court can distinguish the
truth from falsehood, the mere fact that the injuries on
the person of the accused are not explained by the
prosecution cannot, by itself, be the sole basis to reject
the testimony of the prosecution witnesses and
consequently, the whole case of the prosecution.
Reference in this regard can be made to Rajender Singh
v. State of Bihar, (2000) 4 SCC 298, Ram Sunder Yadav
v. State of Bihar, (1998) 7 SCC 365 and Vijayee Singh v.
State of U.P., (1990) 3 SCC 190.”
In view of the above, we are of the opinion that the High Court
has not considered the issue of non-explanation of injuries on the
person of accused in correct perspective.
22. In view of above, the appeals succeed and are allowed. The
judgment and order impugned before us is set aside and the judgment
and order of the Trial Court is restored. The respondents are directed
to surrender within a period of 4 weeks from today, failing which, the
15Page 16
learned Additional Sessions Judge (Fast Track), Gangapur City, is
directed to take them into custody and send them to jail to serve the
remaining part of the sentence. A copy of the order be sent to the
learned Additional Sessions Judge (Fast Track), Gangapur City, for
information and compliance. 
……………………………...J.
 [DR. B.S. CHAUHAN]
 ...…….…….......................... J.
 [DIPAK MISRA]
NEW DELHI;
July 1, 2013
1

M.V. ACT = whether compensation in a motor vehicle accident case is payable to a claimant for both heads, viz., loss of earning/earning capacity as well as permanent disability. = The Tribunal, after holding that the accident was caused due to the negligence of the driver of the bus belonging to the Transport Corporation, by order dated 30.11.2000, awarded a sum of Rs. 9,42,822/- as total compensation by adopting the multiplier of 13 in terms of the second schedule to the Motor Vehicles Act, 1988 (hereinafter referred to as “the Act”). (c) Dis-satisfied with the award of the Tribunal, the appellant preferred an appeal being CMA No. 150 of 2001 before the High Court praying for higher compensation, on the other hand, the Transport Corporation also preferred an appeal being CMA No. 82 of 2001 for reduction of the compensation. (d) The High Court, by impugned common judgment dated 29.01.2007, reduced the compensation from Rs. 9,42,822/- to Rs. 6,72,822/-. Aggrieved by the reduction in the compensation amount, the appellant has preferred the present appeals by way of special leave for enhancement of the compensation. = In the light of the above discussion, the appellant is entitled to the following additional amount: a) Towards 85% permanent disability … Rs. 1,00,000/- b) Towards loss of earning/earning capacity by applying the multiplier 13 … Rs. 80,000/- (in addition to the amount of Rs. 3,20,000/- fixed by the High Court) Accordingly, in addition to the amount awarded by the High Court, the claimant/the appellant herein is entitled to an additional amount of Rs. 1,80,000/-. Further, we make it clear that altogether the appellant is entitled to a total compensation of Rs. 8,52,822/- with interest at the rate of 9% from the date of claim petition till the date of deposit. 19) The appeals filed by the claimant/appellant are allowed in part to the extent mentioned above with no order as to costs.

published in http://judis.nic.in/supremecourt/imgs1.aspx?filename=40482
Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 4816-4817 OF 2013
(Arising out of SLP (C) Nos. 15531-15532 of 2007)
S. Manickam .... Appellant (s)
Versus
Metropolitan Transport Corp. Ltd. .... Respondent(s)
J U D G M E N T
P. Sathasivam, J.
1) Leave granted.
2) The important question which arise for consideration in
these appeals is
whether compensation in a motor vehicle
accident case is payable to a claimant for both heads, viz.,
loss of earning/earning capacity as well as permanent
disability. 
3) These appeals are directed against the common
judgment and order dated 29.01.2007 passed by the High
Court of Judicature at Madras in C.M.A. Nos. 82 and 150 of
1Page 2
2001 whereby the High Court partly allowed the appeal filed
by the respondent-herein and dismissed the appeal preferred
by the appellant-herein.
4) Brief facts:
(a) On 27.01.1997, when the claimant/the appellant herein
was alighting from the bus owned by the Metropolitan
Transport Corporation Limited (in short “the Transport
Corporation”) – respondent herein, the conductor of the bus
blown the whistle without noticing him.
Due to the sudden
movement of the bus, the appellant fell down and the rear
wheel of the bus rammed over on his right leg and he
sustained severe injuries on his head, right hand and chest.
After treatment, his right leg below the knee was amputated.
At the time of accident, he was 45 years of age. He made a
claim before the Motor Accidents Claims Tribunal (“the
Tribunal” for short), Chennai in O.P. No. 1667 of 1997
claiming a sum of Rs. 21,00,000/- as compensation. 
(b) The Tribunal, after holding that the accident was caused
due to the negligence of the driver of the bus belonging to
the Transport Corporation, by order dated 30.11.2000,
2Page 3
awarded a sum of Rs. 9,42,822/- as total compensation by
adopting the multiplier of 13 in terms of the second schedule
to the Motor Vehicles Act, 1988 (hereinafter referred to as
“the Act”). 
(c) Dis-satisfied with the award of the Tribunal, the
appellant preferred an appeal being CMA No. 150 of 2001
before the High Court praying for higher compensation, on
the other hand, the Transport Corporation also preferred an
appeal being CMA No. 82 of 2001 for reduction of the
compensation. 
(d) The High Court, by impugned common judgment dated
29.01.2007, reduced the compensation from Rs. 9,42,822/-
to Rs. 6,72,822/-. Aggrieved by the reduction in the
compensation amount, the appellant has preferred the
present appeals by way of special leave for enhancement of
the compensation. 
5) Heard Mr. P.B. Suresh, learned counsel for the
claimant/appellant and Mr. B. Balaji, learned counsel for the
Respondent-Transport Corporation.
Discussion:
3Page 4
6) As posed at the first instance, mainly, we have to
consider whether the High Court is justified in disallowing the
claim under the head permanent disability when the
appellant had sustained 85% permanent disability by way of
amputation of his right leg below the knee. Incidentally, this
Court has to consider whether the High Court is equally
justified in reducing the multiplier from 13, as adopted by the
Tribunal, to 10.
7) Inasmuch as the present appeals are preferred by the
victim/claimant for enhancement of the compensation, there
is no need to traverse the facts leading to the accident. In
other words, the finding that the accident occurred due to
the negligent driving of the driver of the bus belonging to the
Transport Corporation has become final.
8) It is also not in dispute that based on the evidence of
the claimant (PW-1), the evidence with regard to permanent
disability of 85%, amputation of the right leg below the knee,
his age and avocation, the Tribunal has awarded a sum of Rs.
9,42,822/- as compensation with interest @ 12% p.a. on the
said amount. The High Court, while considering the appeals
4Page 5
of the Transport Corporation as well as the claimant, placed
reliance on a Full Bench decision of the same Court in
Cholan Roadways Corporation Limited, Kumbakonam
vs. Ahmed Thambi and Others, 2006 (4) CTC 433 wherein
it was held that if the injured is compensated for loss of
earning and loss of earning capacity, compensation need not
be awarded separately for permanent disability. Based on
the said principle laid down in the Full Bench decision,
learned Single Judge directed a reduction of Rs. 1,00,000/-,
fixed under the head ‘permanent disability’, from the total
award.
9) This Court, in Ramesh Chandra vs. Randhir Singh
and Others, 1990 (3) SCC 723, has categorically held that
compensation can be payable both for loss of earning as well
as disability suffered by the claimant.
10) In addition to the same, in B. Kothandapani vs. Tamil
Nadu State Transport Corporation Limited, (2011) 6
SCC 420, this Court (speaking through one of us) after
considering the Full Bench decision of the Madras High Court
in Cholan Roadways (supra), disagreed with the said view
5Page 6
and granted separate compensation under the head
permanent disability even after grant of compensation under
loss of earning/earning capacity. The following conclusion is
relevant:
“14. In Ramesh Chandra v. Randhir Singh while
considering award of compensation for permanent
disability (right foot amputated) caused by the accident
under Section 110-B of the Motor Vehicles Act, 1939 which
is similar to Section 168(1) of the Motor Vehicles Act,
1988, this Court upheld the award of compensation under
the separate head of pain, suffering and loss of enjoyment
of life, apart from the head of loss of earnings. The
discussion and ultimate conclusion are relevant which read
as under:
“7. With regard to Ground 19 covering the question
that the sum awarded for pain, suffering and loss of
enjoyment of life, etc. termed as general damages
should be taken to be covered by damages granted for
loss of earnings is concerned that too is misplaced and
without any basis. The pain and suffering and loss of
enjoyment of life which is a resultant and permanent
fact occasioned by the nature of injuries received by
the claimant and the ordeal he had to undergo. If
money be any solace, the grant of Rs. 20,000 to the
claimant represents that solace. Money solace is the
answer discovered by the law of torts. No substitute has
yet been found to replace the element of money. This,
on the face of it appeals to us as a distinct head, quite
apart from the inability to earn livelihood on the basis
of incapacity or disability which is quite different. The
incapacity or disability to earn a livelihood would have
to be viewed not only in praesenti but in futuro on
reasonable expectancies and taking into account
deprival of earnings of a conceivable period. This head
being totally different cannot in our view overlap the
grant of compensation under the head of pain, suffering
and loss of enjoyment of life. One head relates to the
impairment of person’s capacity to earn, the other
relates to the pain and suffering and loss of enjoyment
of life by the person himself. For these reasons, we are
6Page 7
of the considered view that the contentions raised by
the truck owner appellant in that behalf must be
negatived and we hereby negative them.”
15. It is true that the compensation for loss of earning
power/capacity has to be determined based on various
aspects including permanent injury/disability. At the same
time, it cannot be construed that compensation cannot be
granted for permanent disability of any nature. For
example, take the case of a non-earning member of a
family who has been injured in an accident and sustained
permanent disability due to amputation of leg or hand, it
cannot be construed that no amount needs to be granted
for permanent disability. It cannot be disputed that apart
from the fact that the permanent disability affects the
earning capacity of the person concerned, undoubtedly,
one has to forego other personal comforts and even for
normal avocation they have to depend on others.
After laying down the above ratio regarding merits of that
case, it was concluded:
“16. In the case on hand, two doctors had explained the
nature of injuries, treatment received and the disability
suffered due to partial loss of eyesight and amputation of
middle finger of the right hand and we have already
adverted to the avocation, namely, at the time of accident,
he was working as foreman in M/s Armstrong Hydraulics
Ltd. Taking note of his nature of work, partial loss in
eyesight and loss of middle finger of the right hand, not
only affect his earning capacity but also affect normal
avocation and day-to-day work. In such circumstance, we
are of the view that the Tribunal was fully justified in
granting a sum of Rs. 1,50,000 towards permanent
disability.”
The above decision makes it clear that the ratio laid down by
the Full Bench of the Madras High Court in Cholan
Roadways (supra) has not been accepted by this Court.
7Page 8
11) Following the ratio in B. Kothandapani (supra) in the
subsequent decision, viz., K. Suresh vs. New India
Assurance Co. Ltd. and Another, 2012 (10) JT 484,
another Bench of this Court, awarded separate amount for
permanent disability apart from fixing compensation under
the head ‘loss of earning’ or ‘earning capacity’.
12) In matters of determination of compensation,
particularly, under the Motor Vehicles Act, both the tribunals
and the High Courts are statutorily charged with a
responsibility of fixing a “just compensation”. It is true that
determination of “just compensation” cannot be equated to a
bonanza. On the other hand, the concept of “just
compensation” suggests application of fair and equitable
principles and a reasonable approach on the part of the
tribunals and the courts. We hold that the determination of
quantum in motor accidents cases and compensation under
the Workmen’s Compensation Act, 1923 must be liberal
since the law values life and limb in free country in generous
scales. The adjudicating authority, while determining the
8Page 9
quantum of compensation, has to take note of the sufferings
of the injured person which would include his inability to lead
a full life, his incapacity to enjoy the normal amenities which
he would have enjoyed but for the injuries and his ability to
earn as much as he used to earn or could have earned.
While computing compensation, the approach of the tribunal
or a court has to be broad based and sometimes it would
involve some guesswork as there cannot be any precise
formula to determine the quantum of compensation.
13) Keeping the above principles in mind, there is no
difficulty in holding that the High Court has committed an
error in setting aside the award amount of Rs. 1,00,000/-
under the head ‘permanent disability’ on the ground that
substantial amount had been fixed under the head ‘loss of
earning’ and ‘loss of earning capacity’. It is not in dispute
that at the time of the accident, the appellant was aged
about 45 years and he was the proprietor of Parvathy
Furniture Mart and 15 persons were working under him.
Based on the evidence, the Tribunal has determined his
income as Rs. 8,000/- per month.
9Page 10
14) It is borne out from the records that the claimant was
treated as an inpatient in Pavithra Hospital from 27.01.1997
to 26.02.1997, and thereafter, he was treated as an
outpatient vide Exh. P-1, which is the Discharge Summary.
Further, it is seen from his evidence that he lost his earnings
during the period of treatment from 28.01.1997 to
31.12.1997, and because of severe injuries, his right leg
below the knee was amputated. Considering his age,
avocation and the fact that he cannot do the same work as
he was doing prior to the accident due to amputation of his
right leg, we are of the view that the Tribunal is fully justified
in fixing a sum of Rs. 1,00,000/- towards 85% permanent
disability. The order of the High Court setting aside the
compensation under the said head cannot be sustained.
Accordingly, in addition to the amount determined by the
High Court, we grant a sum of Rs. 1,00,000/-, as awarded by
the Tribunal, towards 85% permanent disability.
15) According to the counsel for the appellant, while
determining future loss of earning/earning capacity, the
Tribunal rightly applied the multiplier of 13 as provided in the
10Page 11
second Schedule to the Act. On the other hand, without any
acceptable reason/basis, the High Court reduced the
multiplier from 13 to 10.
16) In para 16 of the impugned judgment, the High Court,
while computing the loss of earning capacity, without any
acceptable reason, applied the multiplier of 10 and fixed a
sum of Rs. 3,20,000 (Rs. 8000/- x 10x12x1/3 ) as against Rs.
4,00,000/- determined by the Tribunal. Learned counsel
appearing for the appellant submitted that even for
determining just and fair compensation in the case of
injury/permanent disablement, the tribunal/courts are free to
apply multiplier method for which he relied on a decision of
the Madras High Court in United India Insurance Co. Ltd.
vs. Veluchamy and Anr. 2005 (1) CTC 38. While agreeing
with the said decision, though multiplier method cannot be
mechanically applied to ascertain the future loss of income
or earning power, depending on various factors such as
nature and extent of disablement, avocation of the injured
whether it would affect his or her employment or earning
power, we are of the view that the loss of income or earnings
11Page 12
may be ascertained by applying the same as provided under
the second Schedule to the Act. Inasmuch as in the case on
hand, the age of the claimant, i.e., 45 years, on the date of
the incident has not been disputed by the Transport
Corporation, we are of the view that the proper multiplier in
terms of the second Schedule is 13 which was rightly applied
by the Tribunal.
Accordingly, while modifying the quantum
under the loss of earning capacity, namely, Rs. 3,20,000/- as
fixed by the High Court, we restore the amount to Rs.
4,00,000/- as determined by the Tribunal. 
17) Though, learned counsel for the appellant prayed for
interest @ 12%, we are not inclined to accept the same, on
the other hand, the rate of interest, namely, 9%, as fixed by
the High Court, is reasonable and acceptable.
18) In the light of the above discussion, the appellant is
entitled to the following additional amount:
a) Towards 85% permanent disability … Rs. 1,00,000/-
b) Towards loss of earning/earning capacity
by applying the multiplier 13 … Rs. 80,000/-
(in addition to the amount of 
Rs. 3,20,000/- fixed by the High Court)
12Page 13
Accordingly, in addition to the amount awarded by the High
Court, the claimant/the appellant herein is entitled to an
additional amount of Rs. 1,80,000/-. 
Further, we make it
clear that altogether the appellant is entitled to a total
compensation of Rs. 8,52,822/- with interest at the rate of
9% from the date of claim petition till the date of deposit. 
19) The appeals filed by the claimant/appellant are allowed
in part to the extent mentioned above with no order as to
costs. 
...…………….…………………………J.
(P. SATHASIVAM)
.…....…………………………………J.
(M. Y. EQBAL)
NEW DELHI;
JULY 01, 2013.
13

Section 302, read with Section 34 of the Indian Penal Code, 1860 High court acquitted, apex court confirmed the same = (I) The first information report has not been registered at the time and in the manner as it ought to have been written. (II) The counter FIR lodged by the respondents herein was written by Munshi (dead) on the dictation given by the Inspector of Police and not in accordance with the version given by the informant-respondent. (III) The report (Ex.P-13), which ought to have been lodged at the behest of the respondents herein, revealed that the respondents herein had used the lathis and a country-made pistol in selfdefence. (IV) There had been material discrepancies/contradictions/ inconsistencies in regard to the lodging of FIR and investigation so far as the statements of Pratap Singh, Head Constable and R.D. Yadav, S.O., and the entries made in the Rojnamcha. The cumulative effect of all the same creates a doubt in the prosecution story. (V) The FIR in the instant case against the respondents herein had been lodged by Pyare Chowkidar as directed by one Bilal Miyan who had informed him that Jagan had been killed by the party of Munshi and others. The said Bilal Miyan was neither an eye-witness, nor has been examined by the prosecution. (VI) Bilal Miyan had been informed by Ram Bharose about the murder of Jagan but who had not disclosed as who had killed Jagan. Thus, it was not clear as who had killed Jagan and the prosecution could not get any support whatsoever from the FIR. (VII) The evidence led by the prosecution shows that the offence was committed inside the house. Ram Bharose, witness, had seen it from Gallery. No such Gallery had been shown in the site plan. (VIII) The evidence had been that the rifle which was allegedly used in the murder was a single barrel gun but the empty cartridges used in the shooting were not recovered from the spot. No explanation had been furnished as what had happened to those empty cartridges. (IX) As per the prosecution, 3 live cartridges and one country-made pistol were found at the spot, though as per Ram Bharose, witness, the shot was fired from a single barrel gun. (X) The aforesaid contradictions led to the inference that Jagan had been murdered at some other place and in some other manner which was not brought on record by the prosecution. 10Page 11 (XI) It was nobody’s case that Collector Singh had fired two shots upon Jagan and even according to the postmortem report, there was no injury caused by the country-made pistol. (XII) There had been material contradictions regarding locking of the place where Jagan was detained and no explanation was there as who had opened that lock. (XIII) Ram Bharose and Rameshwar had been interested witnesses and their statements were full of discrepancies and contrary to the prosecution case. In view of the fact that no eye-witness was examined, the said material contradictions become most material. (XIV)The prosecution failed to explain the grievous injuries found on the person of Gobardhan and Munshi – accused herein. = This Court has laid down sufficient guidelines for interference by the superior court against the order of acquittal. In exceptional cases where there are compelling circumstances to interfere and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial Court’s acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference.

published in http://judis.nic.in/supremecourt/filename=40481
Page 1
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.824 of 2007
State of U.P. …Appellant
Versus
Gobardhan & Ors. …Respondent
J U D G M E N T
Dr. B.S. CHAUHAN, J.
1. This appeal has been filed by the State of U.P. against the
judgment and order dated 29.8.2003, passed by the High Court of
Allahabad in Criminal Appeal No. 1919 of 1981, reversing the
judgment dated 24.8.1981, passed by the Additional Sessions Judge,
Badaun, in Sessions Trial No. 251 of 1979 (Crime Case No. 10 of
Police Station: Binawar, District: Badaun), whereby the trial court had
convicted and sentenced the respondents to life imprisonment under
Section 302, read with Section 34 of the Indian Penal Code, 1860
(hereinafter referred to as the ‘IPC’).Page 2
2. Facts and circumstances giving rise to this appeal are that:
A. On 7.1.1979 at about 8.45 P.M., respondents Munshi and
Gobardhan had created a small drainage through the fields belonging
to Rameshwar and Kandhari of their village. Rameshwar and
Kandhari had come there and objected to the same. A scuffle broke
out between them, and at that time, Jagan (since deceased) happened
to pass through the said area, riding on the back of a horse. He had
then intervened in the matter and asked both the parties not to fight.
All of them had then proceeded towards the village. The accused
Munshi and Gobardhan had also gone to the village hurriedly, abusing
Rameshwar and Kandhari all along the way. Thereafter, it was in
front of the house of one Phool Singh, situated in the village, that all
the four accused had started beating up Jagan with lathis and Kanta
(Farsa). The accused Munshi and Gobardhan had possessed lathis, the
accused Collector Singh had been in possession of a gun, and the
accused Afsar Singh had been in possession of the Kanta (Farsa).
B. Jagan (deceased), in order to save himself, had run inside the
house of Phool Singh. All the accused had followed him and
continued to beat him up inside the said house. The accused had then
carried Jagan from the house of Phool Singh to the Baithak of the
2Page 3
accused Munshi and Gobardhan, which was located alongside their
house. They had kept Jagan inside the Baithak. The accused Collector
Singh had then fired at Jagan twice and killed him. They had
thereafter, bolted the Baithak from the outside before going away.
C. The village Chowkidar had furnished information pertaining to
the said incident to the police, on the basis of which, a case had then
been registered, and investigation had commenced in relation to the
murder of Jagan by the accused, i.e. by Munshi, Gobardhan, etc.
D. During the course of the investigation, the dead body of Jagan
was recovered from the house belonging to Munshi and Gobardhan.
A 12 bore country made pistol, 3 live cartridges, and 2 paper tiklies of
a 12 bore pistol were also recovered from there. A seizure memo was
then prepared for the same. Samples of blood stained earth were also
taken from the spot. The dead body of Jagan was sealed and was
thereafter, sent for postmortem examination.
E. After the completion of the investigation, a chargesheet was
submitted against all the accused persons. The case was then
committed to the Sessions Court for trial vide order dated 10.2.1979.
3Page 4
All the accused denied the charges levelled against them, and pleaded
not guilty.
F. After the conclusion of the trial, the learned Sessions Judge
vide judgment and order dated 24.8.1981, held the accused Munshi,
Gobardhan, Collector Singh and Afsar Singh guilty for offences under
Sections 302/34 IPC, and sentenced them to undergo life
imprisonment.
G. Aggrieved, the said convicts filed an appeal before the High
Court, which was allowed by it, vide its impugned judgment and
order.
Hence, this appeal.
3. Shri Amit Singh, learned standing counsel appearing on behalf
of the State, has submitted that respondent no. 1 Munshi has died, and
that thus, the appeal against him stands abated. His name may be
deleted from the array of respondents, and the same is accordingly,
deleted. Hence, the appeal is limited to respondent nos. 2, 3 and 4.
It has further been submitted that there is sufficient evidence on
record to show that the three respondents had, in fact, committed the
offence punishable under Sections 302/34 IPC, and had alongwith
4Page 5
Munshi (since dead), committed the murder of Jagan, intentionally in
furtherance of their common intention. The trial court has rejected
their contention that they had falsely been implicated in the case. The
accused Gobardhan is the real brother of the accused Munshi (since
dead). Accused Collector Singh and Afsar Singh are also real
brothers. Even otherwise, all the said accused belong to the same
family. Thus, their participation in the crime is most certainly, not
unintentional. A large number of injuries were found on the body of
Jagan (deceased) which support the case of the prosecution to the
extent that all the accused had, in fact, been involved in the incident.
The High Court has not decided the case in correct perspective. The
appeal, thus, deserves to be allowed.
4. Per contra, Shri Pradeep Gupta, learned counsel appearing on
behalf of the respondents, has opposed the appeal contending that the
High Court has rightly acquitted the respondents. A cross case has
been filed and is pending as regards the large number of injuries were
found on the person of the accused. The said injuries have all been
examined and proved. The injuries suffered by the accused were of a
grievous nature. Even otherwise, the case put up by the respondents in
defence, is highly probable, that there had been a dispute between
5Page 6
Rameshwar and Kandhari on one hand, and the accused on the other
hand. There was no motive whatsoever, to cause any kind of injuries
to the deceased. Jagan (deceased), had only intervened at the time of
scuffle between the parties, which was related to taking water to their
own fields, through the land of the accused. Thus, the appeal is liable
to be dismissed.
5. We have considered the rival submissions made by the learned
counsel for the parties, and perused the record.
6. The dead body of Jagan was subjected to postmortem, and the
following injuries were found on his person:
[1]. An oblique incised wound 7Cm x 3Cm x brain deep on the
right side of forehead just above the right eye brow. Fracture of
right frontal bone seen.
[2]. An incised wound 2Cm x l/2Cm x bone deep on the right
side of the forehead 1 Cm above the injury no. 1. Bone has been
cut.
[3]. A lacerated wound 3Cm x l-l/2Cm x bone deep on the right
side of forehead lateral side 4 Cm. Above the lateral edge of the
right eye.
6Page 7
[4]. Four gun shot wound of entry on the right side of mandible
including upper part of neck in the area of 14Cm x 4Cm. There
is blackening of skin around the wound involving right side
neck in the area of 18Cm x 12Cm. Hair near the right of neck is
burnt. One wound on the neck is measuring 1¼ x l Cm. And
remaining 3 wounds are 1 Cm x 3/4Cm in size.
[5]. An incised wound 13Cm x 4Cm x bone deep on the post
aspect of left forearm 3 Cm, below the left elbow joint.
[6]. A Contusion 4 Cm x l/2 Cm on the ulna border left
forearm 2 Cm., above the left wrist joint.
[7]. An incised wound 1 ½ Cm x ½ Cm x muscle deep on the
medial aspect of the right leg 6 Cm, below the right knee joint.
[8]. A gunshot wound of entry 2 Cm x 1 ½ Cm on the back in
the midline 1 Cm. Right to midline at the level of T-10.
Blackening present around the wound in the area of 5 Cm x 4
Cm. Fracture of the left ulna in lower part seen.
7. The accused Gobardhan was also medically examined on
8.1.1979 at 11 A.M., and the following injuries were found on his
body:
[1]. Contusion 6 Cm x 1 Cm on the back of left forearm
starting just below left elbow to downwards vertically, on the
forearm.
7Page 8
[2]. Abraded contusion on outer aspect of left thigh 3 Cm x 2
Cm., in size and 4 Cm. Above and to the left from upper border
of Lt. Patella reddish in colour blood scab present in the
abraded area of the injury.
[3]. Tenderness present on the dorsum of Lt. foot near
metatarsus phalangeal joint of Jt. Big toe and 2 Lt. toe.
8. The accused Munshi (dead), was also medically examined on
the same day at 11.15 A.M., and the following injuries were found on
his body:
[1]. Contusion on posterior lateral surface of left leg 7 Cm x l
Cm in size. Transversely present 25 Cm above it.
[2]. Tenderness present in the area of Lt. lateral malleolus of
Lt. ankle.
[3]. Complaint of pain in the right side of the head.
9. The High Court has re-appreciated the entire evidence and
recorded the following findings of fact:
(I) The first information report has not been registered at the time
and in the manner as it ought to have been written. 
8Page 9
(II) The counter FIR lodged by the respondents herein was written
by Munshi (dead) on the dictation given by the Inspector of
Police and not in accordance with the version given by the
informant-respondent. 
(III) The report (Ex.P-13), which ought to have been lodged at the
behest of the respondents herein, revealed that the respondents
herein had used the lathis and a country-made pistol in selfdefence. 
(IV) There had been material discrepancies/contradictions/
inconsistencies in regard to the lodging of FIR and investigation
so far as the statements of Pratap Singh, Head Constable and
R.D. Yadav, S.O., and the entries made in the Rojnamcha. The
cumulative effect of all the same creates a doubt in the
prosecution story. 
(V) The FIR in the instant case against the respondents herein had
been lodged by Pyare Chowkidar as directed by one Bilal
Miyan who had informed him that Jagan had been killed by the
party of Munshi and others. The said Bilal Miyan was neither
an eye-witness, nor has been examined by the prosecution.
9

(VI) Bilal Miyan had been informed by Ram Bharose about the
murder of Jagan but who had not disclosed as who had killed
Jagan. Thus, it was not clear as who had killed Jagan and the
prosecution could not get any support whatsoever from the FIR.
(VII) The evidence led by the prosecution shows that the offence was
committed inside the house. Ram Bharose, witness, had seen it
from Gallery. No such Gallery had been shown in the site plan.
(VIII) The evidence had been that the rifle which was allegedly used
in the murder was a single barrel gun but the empty cartridges
used in the shooting were not recovered from the spot. No
explanation had been furnished as what had happened to those
empty cartridges. 
(IX) As per the prosecution, 3 live cartridges and one country-made
pistol were found at the spot, though as per Ram Bharose,
witness, the shot was fired from a single barrel gun. 
(X) The aforesaid contradictions led to the inference that Jagan had
been murdered at some other place and in some other manner
which was not brought on record by the prosecution. 
10Page 11
(XI) It was nobody’s case that Collector Singh had fired two shots
upon Jagan and even according to the postmortem report, there
was no injury caused by the country-made pistol. 
(XII) There had been material contradictions regarding locking of the
place where Jagan was detained and no explanation was there
as who had opened that lock. 
(XIII) Ram Bharose and Rameshwar had been interested witnesses
and their statements were full of discrepancies and contrary to
the prosecution case. In view of the fact that no eye-witness
was examined, the said material contradictions become most
material. 
(XIV)The prosecution failed to explain the grievous injuries found on
the person of Gobardhan and Munshi – accused herein. 
10. This Court has laid down sufficient guidelines for interference
by the superior court against the order of acquittal. In exceptional
cases where there are compelling circumstances to interfere and the
judgment under appeal is found to be perverse, the appellate court can
interfere with the order of acquittal. The appellate court should bear in
mind the presumption of innocence of the accused and further that the
trial Court’s acquittal bolsters the presumption of his innocence.
11Page 12
Interference in a routine manner where the other view is possible
should be avoided, unless there are good reasons for interference.
11. We have considered and examined the matter most minutely.
Applying the parameters of interference against the order of acquittal,
we are of the considered opinion that no interference is called for.
This appeal lacks merit and is, accordingly, dismissed. 
……………………………...J.
 [DR. B.S. CHAUHAN]
 ...…….…….......................... J.
 [DIPAK MISRA]
NEW DELHI;
July 1, 2013