STATE OF UTTAR PRADESH versus RAM KISHAN & OTHERS

Citation: [1976] 3 S.C.R. 379 · Decided: 13-02-1976 · Supreme Court of India · Bench: P.N. BHAGWATI · Disposal: Appeal(s) allowed

Judgment (excerpt)

/ 
STATE OF UTTAR PRADESH 
v. 
RAM KISHAN & OTHERS 
February 13, 1976 
37~ 
[P. N. BHAGWATI AND P. K. GOSWAMI, JJ.] 
Appeal by State against acquittal-I11terference with the 
de~isio_n of the 
High Court by the Supreme Court under Art. 136 of the Constltullon-lf the 
High Court reads the prosecution evidence by introducing an extraneous gloss 
for the purpose of its conclusion, resulting in failure of justice. this Court should 
interfere. 
"Material prejudice'' to the acc11.~·ed-Alteratio11 of the conviction to section 
326/34 in appeal when the original charge and conviction were under s. 302/149 
is not a "nwterial preiudicl'"-Criminal Procedure Code (Act V of 1898-
Sections 222, 223 and 225) 
The accused and the deceased are close relatives. as. per the following 
pedigree:-
Ram Khelawan (2) 
Vishwanath Shankar 
(PW)SI 
S2 
Sheo Murat 
(Acd) SI 
Shyam Lal 
(Acd) 
Ram Kishan 
(Acd) S2 
Ramcharan (1) 
Bairam (3) 
Kanker 
S3 
Shobha 
(Acd) S3 
Khuddi (4) 
Shivnath Jagannath 
(PW2) 
MotiLal 
(Acd) S4 
Bhagwantia 
(Sister) DI 
A 
B 
c 
D 
Vishwanath, Kanker, deceased Channu, Jagannath, accused Ram 
Kishan 
E 
along with his mother and sister Bhagwantia were living in the ancestral house 
at village Bhiwanipur, while the rest lived in a nearby separate house. 
On 
March 18, 1969, Vishwanath tried to pacify the quarrel between his brother 
Kankar's wife and Bhagwantia his cousin-sister and when she refused to heed 
to his words, he gave one or two slaps to Bhagwantia. The real brothers of 
Bhagwantia viz.. Ram Kishan, Shobha. Moti Lal and Shyamlal s /o 
Ram 
Krishan-all accused, went the next day to Vishwanath's house and demanJed 
an explanation for beating Bhagwantia and wanted a settlement. Since Vishwa-
nath said there was nothing in fact to be settled, Rani. Kishan :nstigated the 
F 
rest to beat Vishwanath. Shobha caught hold of Vishwanath while 
Sheo 
Murat dealt knife blows which resulted in two grievous incised injuries. Channu 
who came to the rescue was caught hold of by Shyam Lal and Moti and Sheo 
Murat dealt knife blows causing five fatal incised wounds and h\'O abrasions 
to which he succumbed. On the above version of the incident by the injured 
Vishwanath, PW I in the complaint and in evidence at the trial, which was 
unerringly corroborated by PWs 9, 10. 13 and unshaken in the cross-examina-
tion, the Sessions Court convicted Sheo Murat under s. 302/149 I.P.C. for 
G 
causin?: the death of Channu and under s. 307 /149 I.P.C. for attemnting to 
murder Vishwanath, though the charges were under s. 302, 307 and 148-, I.P.C., 
and sentenced him to death under s. 302, I.P .C .. seven years' rigorous impri-
sonment under s. 307 I.P .C. and to two years' rigorous imprisonment under 
s. 148. l.P.C. 
Accused Ram Kishan. Shobha. Moti Lal and Shyamlal, the 
respondents in this Court were convicted under s. 302/149 I.P.C., under s. 307 
read with s. 149 I.P.C. and s. 147 l.P.C. They were sentenced to one year's 
rigorous 
imprisonment 
under 
s. 147 
I.P.C. 
to 
seven 
vears' 
rigorous imprisonment under s. 307 /149 I.P.C. and to imprisonment for life 
H 
under s. 307 /149. 
The accused appealed to the High Court and there was a 
reference under s. 374 Cr. P.C. for the confirmation of death sentence. 
By 
a common judgment, the High Court (i) set aside the conviction and sentences 
A 
B 
D 
E 
F 
G 
H 
380 
SUPREME COURT REPORTS 
[1976] 3 S.C.R. 
of all the present respondents and also that of Shco Murat under s. 148, 1.P.C.: 
(ii) maintained the convictions under s. 307 l.P.C. and also under s. 302 I.P.C'.. 
but altered the death sentence to one of life imprisonment and rejected the 
reference. 
This Court rejected the State's special leave petition against the alteration 
of the death sentence but granted s!)ecial leave against the acquittal of the 
respondents alone and issued non-bailable warrants. 
Allo¥.·ing the appeal, and convicting the .<lccused and sentencing them to 
different terms with the benefit of set off under s. 428, Cr.P.C. (Act 2 of 1973), 
the Court, 
HELD : ( 1) It is well-established that in an appeal ~gainst acquittal, this 
Court is slow to interfere under Art. 136 of the Constitution with the decision 
of the High Court. The possibility that it may just be reasonably feasible for 
the Court to take a different view of the evidence from that of the High Court 
is not the test in an appeal against acquittal. 
[383-D-E] 
(2) Jn the instant case, the injuries on the two victims are "res ipso l

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