Khem Karan and Others v. the State of U.P. and Another
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KRISHNA IYER, J.-This appeal by special leave, by three out of
twenty three, who alone were convicted by the High Court in .reversal
of a total aoquittal by the trial court, turns on the propriety of the
Court of _Appeal convicting accused persons whose initial advantage
of a presumption of innocence has been strengthened by a judicial
affir.mation at the first level.
The !ew facts are these. Two groups-the complainants' and the
accused's-have been on terms of bitter hostility-a background mate·
rial ,\~hich has kgitimately induced both the courts to be very scepti
cal about the veracity of the prosecution witnesses in the absence
of unlying corroborat10n. As found by both the courts, a confron"
talion and· exchange of violence occurred on June 22, 1964 each
party caliing the other aggressor. Anyway, ·several on the prose
cution side. dia receive gunshot wounds, although luckily not fatal,
and three among the accused bunch had on their person lathi blow
injuries. The trial Judge disbelieved the version of the defence but
found the P.Ws. too partisan to pin his faith on, and in consequence
acquitted everyone. The High Court agreed that unless the infirmity
of interested testimony was cur,d by other credible evidence the fate
of the case would be the· same and on that basis dismissed the State's
appeal against ali but the three appellants befor-e us. Was this ex
ceptional treatment justified (a) by the evid_ence, and (bl in the light
cf first court's acquittal ?
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.An encounter did take place and a case and counter-case ensued.
The accused-except a few· who pleaded alibi in vain-daimed that
faey were attacked. Even the trial court has rejected this contention
1nd the High Court has held that, having regard to the number and
nature of injuries an:d the number of persons who bave been hit by
fire power, the accused were the attackers. We see no reason to
disturb this conclusion. Even so, how could you hand-pick three out
cf twentr three for · punishment? The complainant's plea is that
when attacked by guns he and his men went at them, disarmed them
and boat them with lathis. The convkted three have injnries which
·fit in with this version. The appellate Court has taken these injuries
:is corroborative of participation in the rioting and attempt to murder
(reod with s. 149, J.P.C.) charged against all the accused. The
short question is whether these wound bring home the guilt so .strongly
as to warrant upsetting of an earlier acquittal. : .
· · The principle of law is well-settled that merely because a dif
fereni view of the evidence is possible--minds differ as rivers differ
you cannot cancel a finding against guilt. But the appellate Court
is untrammelled in its power to re-evaluate the evidence bearing in
mind · the seriousness of overthrowing an acquittal once recorded.
In that view we cannot find any error of law in the High Court
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KllEM KARAN v. ·u. P. STATE (Krishna Iyer, J.) ' 865
A rec:onsidering the probative value of the oral and circumstantial evi
dence in the case. Nor are we persuaded to think that the appellate
Court has failed to observe the bui!Hn restraints on exercise ol power
while l!psdting an acquittal. On the other lund. the Cour< has made
the correct approach that only those accused against whom there was
additional probative reinforcement could· be convicted. So, it found.
that the injuries on the persons of the three appellants and the fact
B . that Si ya Ram, appellant No. 2, had a gun in his hands at the time of
the occurrence were sufficient, together with the other evidence, to
hole the appellants guility.
We cannot part with this case without mentioning the serious
error sonie subordinate courts commit in. the application of the rule
of benefit of reasonable doubt. For instance, in the preocnt case
the learned Sessions· Judge has misguided himself by chasing bare pos
sibilities 6l' doubt and exalting them into sufficiently militating factors
justifying acquittal. The following passage illustrates the grievous
mistake of the learned Judge :
"I must concede that probabilities for such a situation
are remote but possibilities cannot be ruled out. We hav~
to see whether the incident took place in the manner as
alleged by the prosecution or not. To inspire confidence of _
the Court the prosecution has to establish each link in its
version beyond all doubts. When other links in the prose
cution, as discussed above; have failed to inspire confidence,
I think in such a case the benefit of doubt prevailing around
the remaining links in the version must go to the accus
ed."
Neither mere possibilities. nor remote probabilitie~ nor mere doubts
which are not reasonable can, without danger to the admhllstration of
justice, be the foundation · cif the acquittal of art accused person, if
there js other}Yise fairly credible testimony. If a trial court's judg
ment verges on the perverse, the .appellate court_ has a duty to set
the evaluation right and that is about all that has happened in this
case. The High Court has given a large margin for reasonable donbt
and confirmed the acquittal of a considerable number of the accus-
ed. --
--~
Although the surviving accused who have been convicted are only
three, s. 149, and in any case s. 34, I.P.C., will rope in the appel
ants by way of constructive liability. This Court has, in Sukh Ram
v. State of U.P.,( 1) held that the acquittal of two ·out of three named
accused does not bar the conviction of the third under s. 302, read
with s. 34, if he is shown to have . committed the offence with un
known companions. As in that case, here also no possible prejudice
can be claimed by the accused-appellants by the invocation of s.34,
LP.C., even if tw~n!y out of twentv three have been acquitted. More
over, this Court has in Bharwad Mena Dana v. State of, Bombay(2)
(I) A.T.R. 1974 S.C. 323. (21 (1962] 2 SCR J72. . ·
866 SUPREME COURT REPORTS (1974] 3 S.C.R.
taken the view that nothing in .law prevents the .court from fin.cling A
that the unlawful assembly consisted of less than five convicted per-
sons and some unidentified persons together numbering more than
!iv,.._ In: our ·view, the fact that a large number of accused have
been acquitted and the remaining who have been convicted are less
than five cannot vitiate the conviction under s. 149 read with the
substantive offence if-as in this case the Court has taken care to
find- there are other persons who might not· have be-on identified or B
convicted but were party to the crime and together cc/nstituted the
statu'.ory number. On this basis, the conviction under s. 307, read
with s. 149, has to be sustained.
What remains is the Question of sentence. It is true that those
assailants who did not receive injuries have escaped punishment aed
conviction has been clamped down on those who have sustained inju·
ries in the course of the clash. It is equally true that those who have
allegedly committed the substantive offences have jumped the gaunt-
let of the law and the appellants have been held guility only con,._
trUctively. We also notice that the case has been pending for around
ten years and the accused must have been in jail for some time, a
circumstance which is relevant under the new Criminal Procedure
Code rhou~ it has come iriJ.i.i operation only from April 1, 1974.
Taking a conspectus of the 'Various circumstances in the case, some
of which are indicated above, we are satisfied that the ends of justice
would bo met by reducinii· the sentence to three years rigorous impri
sonment under s. 307, read with s. 149, and one yeacrigorous im
pri<onment under s. 147, I.P.C., the two terms running concurrently.
\ViL'i this modification regarding sentence, we dismiss the appeal.
S.B.W. Appeal dismissed.
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