STATE OF U.P. versus ASHOK KUMAR & ANOTHER

Citation: [1979] 3 S.C.R. 1 · Decided: 02-02-1979 · Supreme Court of India · Bench: S. MURTAZA FAZAL ALI · Disposal: Dismissed

Judgment (excerpt)

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-·. 
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STATE OF U.P. 
v. 
ASHOK KUMAR & ANOTHER 
February 2, 1979 
[S. MVRTAZA FAZAL ALI AND A. D. KosHAL JJ.] 
1 
Penal Code-s. 302-Supreme Court-When would' interfere 
with 
order 
of acquittal in special leave-Witnesses claimed they 
identified the assailant 
from a distance of 150 yards on a moonlight night-If could be believed. 
The respondents were charged with an offence under s. 302, I.P.C. The 
prosecution case was thh,t on the night of occurrence (which was a moonlight 
'night) the deceased and the prosecution witnesses attended a drama in 
the 
Ramlila Grounds of the village and when the deceased, 
after taking two 
1amosas and tea, was returning home some time past midnight, the respondents 
shot him dead and that this was seen by them from a distance of 150 yards 
from the scene of occurrence. 
The trial court, believing the prosecution version, convicted the respondents. 
A 
B 
c 
On appeal the High Court rejected the prosecution story and acquitted both 
D 
the respondents. The State came in appeal to this Court by special leave. 
Dismissing the appeal, 
HELD : It is well-settled that this Court, 
in special leave, 
would. not 
normally interlere with an order of acquittal unless there are cogent reasons 
for doing so or unless there is a gross violation of any procedure of law 
which results in serious miscarriage of justice. [2H] 
E 
Having regard to the glaring defects in the prosecution story this is not a 
case in which this Court should interefere with the order of acquittal. [3B] 
In the present case, 
though it was a moon-lit night according to the 
almanac the moon would have covered three-fourths distance on the night of 
occurrence. Even in the moonlight it would have been 
difficult 
for 
the 
witn°"'"' to identify the as.m!ants; even if they did, the possibility of mistake 
in identification could not be completely excluded. According to an autho-
rity, when the moon is at the quarter, it is possible to recognise persons at 
a distance of from 21 ft; in bright moonlight at from a distance of 23 to 
33 ft. and at the very brightest period of the full moon at a distance of from 
33 to 36 ft. In tropical countries the distance for moonlight nID·y be increas-
ed. Therefore, it would not have been possible for the 
eye 
witnesses to 
identify the assailants from a distance of 150 yards. 
[3F,G] 
After the assailants had given a call and fired at the deceased the witnesses 
would not have flashed the torch light, as suggested by the prosecution, and 
exposed themselves to the risk of being shot at. Even ·if the 
torches 
were 
lighted, in view of the distance, it would not have been Possible for the wit-
nesses to identify the assailants with certainty. [ 4 B] 
Secondly, the medical evidence had shown that the stomach of the deceased 
was empty and the large intestines too were empty. Therefore, the evidence 
F 
G 
H 
A 
B 
c 
D 
E 
G 
H 
2 
SUPREME COURT REPORTS 
[1979] 3 s.c.R. 
of the witnesses that the deceased took two samo!ils after the 
drama 
at 
midnight and before the attack 
i~ completely falsified by medical evidence. 
Another prosecution witness stated that the deceased having 
had 
stomach 
ulcers never took any food at night. .Apparently until the dcpoaition of the 
first witness was complete the prosecution did not realise -the grtwvity of tho 
statement made by him and deliberately introduced a change on a vital i!sue 
which by itself is ·an importE.nt circumstance throwing doubt on the pr08ecu~ 
tion case. 
While witnesses may lie, circumstances would never. The evidence 
of the doctor, based on conclusive evidence cannot be belied, [4F-Hl 
• 
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 166 
of 1976. 
• 
Appeal by Special Leave from the Judgment and Order 
dated :=Ji\ 
21-4-75 of the Allahabad High Court in Criminal Appeal No. 27761 
.. 
74 and Referred No. 76/74. 
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D. P. Uniyal, and M. V. Goswami for the Appellant. 
D. Mookherjee, 0. P. Tewari, S. S. Srivastava and K. C. Jain, 
for Respondent No. 1. 
R. K. Garg, V. J. Francis and D. K. Garg for Respondent No. 2. 
The Judgment of the Court was delivered by 
FAZAL ALI J.-The respondents had been convicted by the Addi-
tional Sessions Judge, Banda under section 302 of Indian Penal Code 
and senienced to imprisonment for life. 
The respondents thereafter 
filed an appeal to the High Court of Allahabad which after a fnll and 
complete consideration of the evidence came to a finding of fact that 
the prosec

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