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TMI Blog2003 (9) TMI 805X X X X Extracts X X X X X X X X Extracts X X X X ..... sed respondents Sachidanand, Rasbehari and Janardan u/s 440 IPC, for which two years imprisonment was imposed, is concerned the High Court's judgment is reversed. The respondents Sachidanand, Rasbehari and Janardan were rightly convicted by the Trial Court u/s 440 IPC along with accused Madan Rai. The sentence of two years rigorous imprisonment and a fine of ₹ 500/- as imposed can be in no way termed to be excessive to warrant a different sentence. In the ultimate result, the judgment of the Trial Court is restored and that of the High Court is set aside. The respondents shall surrender to custody to serve the remainder of the sentence, if any, to be served. The appeals are allowed. - Doraiswamy Raju and Dr. Arijit Pasayat, JJ. For the Appellant : Ajai Bhalla, Rahul Agarwal, Abha R. Sharma, C.D. Singh, Pramod Swarup and A.S. Pundir (N.P.), Advs For the Respondents : S.B. Sanyal, Ashok Kumar Singh, Punam Kumari and S. Biswajit, Advs. JUDGMENT Arijit Pasayat, J. 1. One Jairam (hereinafter referred to as the 'deceased') was in his early teens when he lost his life in an unfortunate dispute where his relatives were the warring parties. There were originally 4 accuse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bourers. As the condition of the deceased deteriorated, he was taken in a tractor to the hospital at Mohammadbad, information was lodged at the police station, and investigation was undertaken. On completion of the investigation, charge sheet was placed. 3. Considering the evidence on record the Trial Court found Accused-Modan Rai guilty and sentenced him to imprisonment for life for the offence relatable to under Section 302 IPC and for the offence punishable under Section 440 IPC imprisonment for term of two years with a fine of ₹ 500/- was imposed. Other three accused were acquitted of charges under Section 302 read with Section 34 IPC. However, they were held guilty in relation to Section 440 IPC. The convicted accused persons filed an appeal before the Allahabad High Court which by the impugned judgment found the prosecution version to be wanting incredibility and adequacy and directed acquittal. State's appeal against acquittal of three was rejected. 4. According to the High Court, there was manipulation so far as the time of occurrence In the FIR is concerned. Originally, the same appears to have been written at 7.30 p.m. and subsequently corrected to 6.30 p.m., ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the clear and cogent evidence was to the effect that one shot was fired first and after some time the second shot was fired which proved to be fatal. The High Court has attached unnecessary importance to the correction made in the FIR about the time of occurrence. There was no material and no finding has been recorded that initially some timing was given which was subsequently changed. It is not the case of the defence that at first 7.30 p.m. which was written in the FIR was subsequently changed to 6.30 p.m. in another document. As has been explained by the informant the correction was made before the first FIR was handed over. To say that the timing was changed after deliberation would not be a proper approach. According to the informant by tremor of hand it was so written and immediately corrected and to discard the prosecution case on the conjectures and surmises that the timing was changed after deliberation is indefensible. Even if it is conceded that there was a correction made that was obviously made before the FIR was handed over and mere correction cannot be viewed with suspicion as has been done by the High Court. 7. Dr. Sudhakar Dube (PW-3) has clarified as to why he ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stify the conclusions and the correctness thereof. 11. Learned counsel for the State of U.P. submitted that though the State has not specifically challenged the acquittal of Madan Rai, on a bare reading of the High Court's judgment it is clear that the same cannot be maintained. Additionally, it is submitted that both the trial Court and the High Court have erroneously concluded that Section 440 IPC was not made out against accused 2, 3 and 4. 12. A doubt has been raised about the competence of a private party as distinguished from the State, to invoke the jurisdiction of this Court under Article 136 of the Constitution of India, 1950 (in short the Constitution ) against a judgment of acquittal by the High Court. We do not see any substance in the doubt. Appellate power vested in this Court under Article 136 of the Constitution is not to be confused with ordinary appellate power exercised by appellate courts and appellate tribunals under specific statutes. It is a plenary power, exercisable outside the purview of ordinary law' to meet the pressing demands of justice (See Durga Shankar Mehta v. Thakur Raghuraj Singh [1955]1SCR267 ). Article 136 of the Constitution neither co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cle 136 is a special jurisdiction. It is residuary power; it is extraordinary in its amplitude, its limits, when it chases injustice, is the sky itself. This Court functionally fulfils itself by reaching out to injustice wherever it is and this power is largely derived in the common run of cases from Article 136. Is it merely a power in the court to be exercised in any manner it fancies? Is there no procedural limitation in the manner of exercise and the occasion for exercise? Is there no duty to act fairly while hearing a case under Article 136, either in the matter of grant of leave or, after such grant, in the final disposal of the appeal? There cannot be even a shadow of doubt that there is a procedure necessarily implicit in the power vested in this Court. The founding fathers unarguably intended in the very terms of Article 136 that it shall be exercised by the judges of the highest Court of the land with scrupulous adherence to settled judicial principles, well established by precedents in our jurisprudence. Judicial discretion is canalized authority not arbitrary eccentricity. Cardozo, with elegant accuracy, has observed: The judge, even when he is free, is still not wholly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The evidence of PWs 2 and 5 have been lightly brushed aside with presumptuous conclusion that they could not probably have come from their houses and since there was only one gunshot. On that score alone the High Court's conclusions suffer from vulnerability. The High Court also proceeded as if the change in timing indicated in the FIR was subsequently done. There is no material to support this conclusion. Here again, High Court acted without any material to support its conclusions. The Investigating officer (PW-6) was also not even asked as to when the change was made. On the contrary, reading of PW-1's evidence shows that it was done before the report was handed over to the police. 20. The High Court also came to erroneous conclusion that there was variance between the evidence of PWs 3 and 4. It clearly overlooked the explanation offered by PW-3 as to why he had mentioned about blackening. He has stated that examination at the first instance was done in inadequate light with the help of lantern. Therefore, he accepted that there was a possibility of mistake in what he recorded about the blackening. When one compares his evidence with that of PW-4 the position is clear. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent. Two events are dependent when they tend to occur together, and the evidence of such events may also be said to be dependent. In a criminal case, different pieces of evidence directed to establishing that the defendant did the prohibit act with the specified state of mind are generally dependent. A juror may feel doubt whether to credit an alleged confession, and doubt whether to infer guilt from the fact that the defendant fled from justice. But since it is generally guilty rather than innocent people who make confessions, and guilty rather than innocent people who run away, the two doubts are not to be multiplied together. The one piece of evidence may confirm the other . 24. Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an over emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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