STATE OF U.P. versus BABU AND ORS.

Citation: [2003] SUPP. 3 S.C.R. 1079 · Decided: 24-09-2003 · Supreme Court of India · Bench: DORAISWAMY RAJU · Disposal: Appeal(s) allowed

Judgment (excerpt)

STATE OF U.P. 
A 
V. 
BABU ANJJ ORS. 
SEPTEMBER 24, 2003 
[DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ.] 
B 
Criminal Law : 
Evidence-Appreciation of-Dacoity and murder-Accused identified 
at the spot itself with the help of torchlight and gaslight-Location of the C 
gaslight not indicated in the site plan-Evidence of eye witnesses supporting 
prosecution case-Some of the witnesses not supporting the prosecution 
version though closely related to the deceased-Conviction by trial court-
Acquittal by High Court-Tenability of-Held, merely because the location 
of the gaslight was not mentioned in the sketch, that cannot.be a suspicious D 
circumstance-Accused persons being known to the witnesses, identification 
was possible even with minimal light-Witnesses closely related to the 
deceased not supporting the prosecution version, cannot per se be a 
ground to discard the evidence of other witnesses-Judgment of the High 
Court based on surmises and conjectures, set aside and that of trial court 
restored-Penal Code, 1860-Sections 3951149 and 3021149. 
E 
Appeal against acquittal-Interference by appellate court-Principles 
of, discussed-Constitution of India, · 1950-Article 136. 
A dacoity was committed in the house of PWI by four accused F 
along with 8-9 other persons during which deceased was murdered. 
The informant was sleeping near the main gate of the house and was 
awakened by cries of the deceased and entered the house. One of the 
accused shot at PWI resulting in gunshot wounds to him. Thereafter, 
they decamped with certain properties. The four accused were identified G 
by PWI and other witnesses at the spot itself. 
On completion of the investigation, charge sheet was placed and 
accused persons were sent for trial. Nine witnesses were examined by 
the prosecution. Except for PWt and PW3, all other winesses who 
during investigation claimed themselves to be eyewitnesses, resiled H 
1079 
1080 
SUPREME COURT REPORTS [2003) SUPP. 3 S.C.R. 
A from their statement while deposing in court. All the four accused were 
sentenced by the Trial Court to undergo imprisonment for life for the 
offence punishable under Section 302 read with Section 149 l.P.C. In 
appeal by the accused persons, the High Court directed their acquittal 
on the ground that the evidence of PWI could not be relied upon; that 
B widow and daughter of the deceased had not supported the prosecution 
case; that there was no material to show as to how the prosecution 
witness could identify the accused person, as there was great doubt 
about the source of light; that in the site plan, the place where the 
gasllight was found had not been indicated though same was stated by 
C prosecution to be the source of light. Hence, the present appeal by 
State. 
On behalf of the appellant-state, it was contended that the High 
Court has proceeded on mere surmises and conjectures and has not 
considered the evidence on record; that accused persons are known to 
D the witnesses and, therefore, even with minimal light identification was 
possible. 
E 
Allowing the appeals, the Court 
HELD : I.I. A bare perusal of the High Court's judgment goes 
to show that its approach was rather casual and no effort was made 
to analyse the evidence. The High Court did not examine the evidence 
of PWs I and 3 with the required care. The r~11son indicated to discard 
PWs I and 3 is to the effect that PWs 2 and 9, though they were closely 
F related to the deceased, did not support the prosecution version. That 
cannot per se be a ground to discard the evidence of other witnesses, 
one of whom was also a relative, and the other an independent witness. 
The conclusion arrived at by High Court is without reason. Since the 
High Court has acted on surmises and conjectures, the judgment is 
indefensible. (1084-A, B, 1085-A, B( 
G 
1.2. The site plan is not substantive evidence. It is to be noted that 
the identification by torch was clearly indicated. Merely because the 
location of the gaslight was not mentioned in the sketch, that cannot 
be a suspicious circumstance since the first information report was 
H lodged without unreasonable delay. One important aspect which 
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ST ATE v. BABU 
1081 
cannot be lost sight of and which is of relevance and great significance A 
is that the accused persons are known to the witnesses. When the 
persons are known, identification is possible from the manner of 
speech, manner of walking and gesticulating and special features of a 
person like th

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