P.K. Goswami, J.
1. This appeal by special leave at the instance of the State of Uttar Pradesh is against the judgment of acquittal of the High Court of Allahabad.
2. Balram, Ram Khelawan and Khuddi are three sons of one Ram Charan. The injured Vishwanath (P.W. 1), Shankar, Kankar and deceased Channu are sons of Balram. Accused Sheo Murat, Ram Kishun, Shobha and Motilal are sons of Ram Khelawan. Accused Shyam Lal is the son of accused Ram Kishun, Shiv Nath (PW 2) and Jagan Nath are sons of Khuddi. Thus all of them have branched off from Ram Charan and all the members have got share in their ancestral house at village Bhiwanipur. In this ancestral house Viswanath, Kankar, Chhannu, Jagan Nath and accused Ram Kishun along with his mother and married younger sister Bhagwantia resided. All others along with the rest of the four accused lived in a nearby separate house.
3. On March 18. 1969, certain quarrel ensued between Bhagwantia and Kankar's wife of Patia. Vishwanath tried to pacify both the quarrelling women. Since Bhagwantia did not heed Vishwanath's words, the latter gave her one or two slaps. Ram Kishun and his brothers were not in the village on that day but learning about this incident on the following day accused Sheo Murat, Ram Kishun, Shobba, Moti Lal and Shyam Lal went to Vishwanath's place at about 7.00 or 8.00 P. M. What followed may be described in the words of the injured Vishwanath:
On the next day at 7 or 8 P.M. I was sitting at the door of my osara. My younger brothers, Kankar and Channu, were sitting at a short distance from me at the well. Sheonath, my cousin, was also sitting near Kankar and Channu. A burning lantern was hanging from a bamboo pole outside the osara; and there was sufficient light from it. Ram Kishun. Shobha, Sheo Murat, Shyam Lal, and Moti, accused present in the court, came there. Ram Kishun asked from me as to why I had slapped Bhagwantia and that I should come out and settle up. I stood up and said, 'Brother, what will you settle up.' At this Ram Kishun instigated his companions saying. 'Beat the salas'. At once Shobha caught hold of my hand and Sheo Murat dealt knife-blows to me. Channu, my younger brother, came to save me whereupon Shyam Lal and Moti caught hold of him and Sheo Murat started giving knife-blows to him. On hearing their instigation, Sohan, Phool Chand, Dukhi and others came over there and began to forbid them. Chhannu and I fell down on sustaining injuries. Then all the five accused persons ran away with the knife.
4. What has been stated above by Vishwanath has been repeated by Shiv Nath (PW 2). Hausla Prasad (PW 9), Phool Chand (PW 10) and Sohan (PW 13). The story given by these, witnesses remains absolutely unshaken in the scanty cross-examination by the defence. Indeed there was little or no cross-examination with regard to the incident itself.
5. Deceased Chhannu had the following external injuries on his person as stated by Dr. U.P. Singh who held the autopsy:
(1) Incised stab wound 3/4' x 1/3' on right side chest, 1' medial to right nipple going into the chest cavity.
(2) Incised stab wound 1/2'x 1/4 x 1' to the right of left nipple and 1' below it, going into the chest cavity.
(3) Incised stab wound 1/2'x1/4'x abdominal cavity deep, on lower part of right side abdomen.
(4) Incised stab wound 1/2'x 1/4' on lower part of abdomen, 3' above the joint of hip-bones.
(5) Incised stab wound 1/2' x 1/4' x 1 1/2' deep, on left hip.
(6) Incised stab wound 1/2' x 1/4' x chest cavity deep, on left side back, 6' below scapula.
(7) Abrasion 1/2' x 1/2' on lateral aspect of right elbow.
(8) Abrasion 1/2' x 1/2' on lateral aspect of right hand.
Internal examination revealed that the cartilage of fifth rib had been cut under injury No. (2). There were punctured wounds in the chest cavity in relation to injury Nos. (1), (2) and (6). Right ventricle of heart had a punctured wound 1/4' x 1/4' and the pericardial cavity contained blood. The upper lobe of left lung had a punctured wound 1/2' x 1/4' in relation to injury No. (2). In the opinion of the Doctor death was due to shock and haemorrhage resulting from injuries to heart and lungs.
6. Another Doctor Siddiqui (PW 5) found the following injuries on the person of Vishwanath:
(1) Incised wound 1/4' x 1/8' x 1 1/2 deep, on front side of lower part of neck, directed downwards, backwards and leftwards. The wound was in the middle of the neck and 1' above the bone. On coughing air passed through the wound.
(2) Incised wound 1' x 1/8' x 3 or more than this, abdominal cavity deep, l 1/2' above and to the left of umbilicus. Direction of wound was backwards, slightly upwards and to wards center of abdomen.
The injuries were fresh and described by the Doctor as dangerous.
7. All the five accused were charged under Section 302/149. I. P.C. for causing the death of Chhannu and also under Section 307/149, 1. P. C. for attempting to murder Vishwanath. While Sheo Murat was charged under Section 148, I.P.C. the other four accused were charged also under Section 147, I.P.C. The Sessions Judge convicted accused Sheo Murat under Sections 148, 307 and 302, I.P.C. He was sentenced to death under Section 302, I.P.C. to seven years rigorous imprisonment under Section 307, I.P.C. and to two years rigorous imprisonment under Section 148, I.P.C. Accused Ram Kishun, Shobha Moti Lal and Shyam Lal (the present respondents) were convicted under Section 302/149 I.P.C., Section 307 read with Section 149 and Section 147, I.P.C. These four accused were sentenced to one year's rigorous imprisonment under Section 147, I.P.C. to seven years' rigorous imprisonment under Section 307/149, I.P.C. and to imprisonment for life under Section 302/149, I.P.C. The sentences of all the accused were to run concurrently. The accused appealed to the High Court. There was also a reference under Section 374, Criminal Procedure Code, to the High Court for confirmation of the death sentence on Sheo Murat. Both the matters were heard together by the High Court and a common judgment was delivered on February 11, 1971. The High Court maintained conviction and sentence of the accused Sheo Murat under Section 307, I.P.C. and also maintained his conviction under Section 302, I.P.C. but reduced the sentence to imprisonment for life. The conviction and sentence of Sheo Murat under Section 148, I.P.C. were, however, set aside. The conviction and sentence of the four other accused (the present respondents) were set aside.
8. The State prayed for special leave against the rejection of the reference by reducing the death sentence to imprisonment for life but this Court rejected the same. The State's special leave application with regard to the respondent's acquittal was, however, admitted on October 13, 1971 and non bailable warrants were issued against them. We are, therefore, not concerned in this appeal with the conviction of accused Sheo Murat who was the assailant of the deceased as well as of Vishwanath.
9. We have to consider whether the High Court has committed a grave and palpable error in acquitting the respondents resulting in miscarriage of justice.
10. It is well settled that in an appeal against acquittal this Court is slow to interfere with the decision of the High Court, even though it has interfered with the conviction by the trial Court, where the same is reached after a proper appreciation of the entire evidence. The possibility that it may just be reasonably feasible for this Court to take a different view of the evidence from that of the High Court is not the test in an appeal against acquittal. Even so, we are unable in this case to sustain the order of the High Court for the reasons which will presently follow.
11. We have already quoted the evidence of Vishwanath which is unerringly corroborated by all the other eye-witnesses. Both the trial court as well as the High Court believed the evidence. Indeed the High Court has observed and, in our opinion rightly that 'there is no infirmity in the prosecution case.' We then find that the High Court has read the evidence in a rather unusual way which is at once obvious when we peruse the judgment. We are not told wherefrom the High Court could describe the evidence as follows:
After reaching the house of Vishwanath they (the accused persons) entered into a conversation which became heated and ultimately ended in exchange of abuses.
The High Court also observed that-
it is not at all clear from the prosecution evidence whether Shobha kept on holding Vishwanath till the very end i. e. till both the knife injuries had been caused to him, or whether he let go his hold as soon as Sheo Murat started the attack.
The High Court further observed that
there is nothing in the prosecution evidence to indicate in what order those injuries were caused to Chhannu, and whether or not the injuries on the back were caused first.
The High Court further gave unusual importance to the statement of PW 13 when he deposed in cross-examination to the following effect:
I cannot remember whether the two persons who had caught hold of Chhannu had held him from the front or from the back or from the side. Further, I do not remember whether they were holding him each with both his arms or whether each of them held him only with one arm. I do not recollect whether Sheo Murat had caused injuries to Chhannu from the front side or from the back side.
12. We are unable to appreciate how the evidence of PW 13, who could not remember certain details, could help the court in coming to any conclusion for the purpose of displacing the clear and unambiguous prosecution evidence.
13. The injuries on the two victims are res ipsa loquitur and tell-tale. Accused Shobha caught hold of Vishwanath's hands and Sheo Murat gave him two stab blows, one on the neck and the other on the abdomen. When deceased Chhannu advanced in order to save Vishwanath he was caught by accused Shyamlal and Moti Lal and Sheo Murat gave as many as six stab injuries in quick succession. None of these stab wounds are on any part of the hands or arms which would have necessarily been caused if the victims were not caught hold of by a person or persons while they were attacked with a knife. It would be unnatural to expect that the victims would not have exercised their natural instinct of self preservation by trying to stave off the stab injuries by raising their hands. And in that process if they were not caught hold of by some person or persons there would have been one or two injuries on the hands or arms. This would clearly go to show that the story that Vishwanath was caught by Shobha and Chhannu was caught by Moti Lal and Shyam Lal as deposed to by the PWs, stands corroborated by the medical evidence. The High Court completely ignored this most relevant and important aspect in the prosecution case but felt satisfied to acquit the accused on the sole ground that there was no evidence to show whether Shobha caught Vishwanath all the time when the two blows were given and also whether Moti Lal and Shyam Lal were catching hold of deceased Chhannu during the entire period of the assault. The High Court particularly felt in that direction because PW 13 being an independent witness could not recollect certain things to which we have already referred to above. The injuries would clearly show that the victims were caught hold of by a person or persons when these were inflicted upon them.
14. We are clearly of opinion that this is a completely erroneous view of the prosecution evidence adduced in this case resulting in failure of justice. We are further satisfied that if the High Court had not read the evidence by introducing an extraneous gloss for the purpose of its conclusion it could not have acquitted the accused.
15. It is also evident that the accused came in a body to challenge Vishwanath for the previous day's incident. Although the four respondents were unarmed, Sheo Murat had a knife with him. There is nothing to show from the evidence that Vishwanath gave any provocation to the accused persons. He only replied to the challenge by saying 'brother, what will you settle up'? At this Ram Kishun instigated the other accused persons saying 'beat the salas.' At once accused Shobha caught hold of Vishwanath's hands and Sheo Murat stabbed him twice with his knife. Assuming the respondents had no earlier knowledge about Sheo Murat's carrying a knife, from this moment they came to know that Sheo Murat had a knife with which he had already stabbed Vishwanath. What did they then do when deceased Chhannu came to the aid of Vishwanath to save him from further assault? Now Motilal and Shyam Lal caught hold of Chhannu and Sheo Murat inflicted several stab blows in quick succession. It is, therefore, clear that Moti Lal and Shyam Lal shared the common intention with Sheo Murat in inflicting stab injuries to Chhannu by participating in the assault.
16. Sheo Murat has been convicted under Section 302. I.P.C. We may only give these two accused Moti Lal and Shyam Lal benefit of doubt with regard to participation with Sheo Murat in the common intention to cause death of Chhannu. It is, however, absolutely impossible to relieve them of any liability whatsoever in connection with the stab injuries which were facilitated by their catching hold of Chhannu when Sheo Murat was inflicting the stab wounds. There is no escape from the conclusion on this evidence that Moti Lal and Shyam Lal shared at least the common intention with Sheo Murat to cause grievous hurt under Section 326, I.P.C. A clear case has been established against both the accused persons under Section 326/34, I.P.C. They are, therefore, convicted under Section 326/34, I.P.C. and sentenced to four years' rigorous imprisonment.
17. With regard to accused Ram Kishun he merely instigated by saving 'beat the salas.' He is the person who started the affair by challenging Vishwanath and also instigating the other accused persons to beat. From this alone it is not possible to attribute to him any common intention to cause more than simple assault. He is, therefore found guilty only under Section 323/ 109, I.P.C. He is, therefore, convicted under Section 323/109, I.P.C. and sentenced to rigorous imprisonment for one year.
18. Accused Shobha, who caught hold of Vishwanath to facilitate the two stab injuries on him by Sheo Murat, is also guilty under Section 326/34 I.P.C. We are prepared to give him the benefit of doubt only with regard to Section 307 I.P.C. but the evidence clearly establishes the case under Section 326/34, I.P.C. He is accordingly convicted under Section 326/34. I.P.C. and sentenced to four years' rigorous imprisonment.
19. We should observe that no prejudice is caused to the accused by alteration of the conviction to Section 326/34 although they had been originally charged under Section 302/149 and Section 307/149, I.P.C. on the particular facts of the prosecution case which clearly pointed to participation by the respective accused in the two attacks and which they had to meet in the trial.
20. Since the respondents are detained in jail in pursuance of the non-bailable warrants issued by this Court on October 13, 1971, at the time of granting special leave, they will be entitled to the benefit of Section 428, Criminal Procedure Code and that period shall be set off against the sentences which we have passed in this appeal.
21. In the result the judgment of the High Court is set aside, the appeal is allowed and the four accused stand convicted and sentenced as aforesaid subject to the observations mentioned above.