REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 1176/2004

Bachan Singh & Anr. ……..Appellants

Vs.

State of Bihar                                            ……..Respondent

WITH Crl.A.No.408/2005 and Crl.A.No. 1459/2008 @ SLP (Crl.)No.599/2007

J U D G M E N T

HARJIT SINGH BEDI,J.

1.     Leave granted.

2. These appeals by special leave arise out of the following

facts:

3. On  the  morning  of  3rd December  1975,  one  Shekhar

Singh, resident of Village Moory was assaulted by some of the

accused.  Later on information was conveyed to Bhagwati Devi

that her sons-in-law, Lakshman Singh and Bacha Singh and

her son Nathuni Singh had been surrounded by the accused

in the Khalihan of one Marua Singh with a view to commit

their murder.  Bhagwati Devi, accompanied by her daughter

and son, went to the Khalihan of Marua Singh and when she

reached there, she saw the accused persons, 13 in all, armed

with guns,  spears,  pharsas  and lathis  etc.  standing  on the

road outside the Khalihan whereas her two sons-in-law and

her son were inside.  She also heard accused Chirkut Singh

asking them to come out of the Khalihan and he also opened

fire hitting Bacha Singh on which, he fell down.  Lakshman

Singh thereafter opened fire with a country-made gun in self

defence hitting Kishore Singh, as a result of which, he too fell

down  on  the  ground.   Thereafter,  accused  Jang  Bahadur

Singh fired a shot with his weapon hitting Lakshman Singh,

and  accused  Bashishta  Singh also  fired  his  weapon hitting

Nathuni Singh and they both fell on the ground.  The other

accused thereafter gave blows with lathis to Nathuni Singh.

In  the  meanwhile  Sachmucha  Devi,  the  father’s  sister  of

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Nathuni Singh covered his body with her own and received

gun butt/lathi blows given allegedly by accused Jang Bahadur

Singh.  It  further appears that the accused persons started

dragging  Lakshman Singh and Bacha  Singh in  a  southerly

direction  and  also  assaulted  them  which  resulted  in  their

deaths on the spot.  On hearing the alarm raised by Bhagwati

Devi,  her  co-villagers  namely  Bajranghi  Singh and Chariter

Singh reached the place and also witnessed the incident.   The

accused  then  ran  away  carrying  Nand  Kishore  Singh  with

them.   Bhagwati  Devi  then  rushed  to  the  Police  Station,

Chainpur  on  which  an  FIR  was  registered  for  offences

punishable under Sections 147,148,149,302,307 and 325 of

IPC and under Section 25(a) of the Arms Act against all the

thirteen accused and on completion of the investigation, they

were  charged  under  the  aforesaid  offences  and  as  they

pleaded innocence, they were brought to trial.  The trial court

relying  on  the  statements  of  PW5  Bhagwati  Devi,  PW4  Jai

Prakash,  PW6 Binda  Devi,  PW7 Sachmucha  Devi  and  PW8

Nathuni Singh held that the case stood proved against nine of

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the  thirteen  accused  and  accordingly  convicted  them  as

under:-  

“All the remaining nine accused persons are  held  guilty  of  the  offence   u/s 302/149  IPC  because  they  committed murders  of  deceased  Lakshman  Singh and Bacha Singh in furtherance of their common  object  for  which  they  had formed  an  unlawful  assembly  and  as such  they  are  convicted  thereunder. Then,  accused  Chirkut  Singh and Jang Bahadur  Singh  are  held  guilty  for  the substantive charge u/s 302 and 148 IPC and 27 of the Arms Act for which they are convicted  thereunder.   Then,  there  is  a charge  u/s  307  IPC  against  accused Bashistha Singh, but the Doctor, who is said  to  have  examined  injured  Nathuni Singh,  has  not  been  examined  by  the prosecution.  Therefore,  charge u/s 307 IPC  fails  on  this  score  alone.   Accused Badri Singh, Sobhu Singh, Kailash Singh, Kumar  Singh,  Bashistha  Singh  and Bacha Singh have been charged for the offence  u/s  148  IPC  whereas  accused Briksh  Singh  has  been  charged  for  the offence u/s 147 IPC.  Therefore they are held  guilty  for  the  respective  charges levelled  against  them  and  they  are convicted thereunder.”

4. Accused  Nirmal  Singh,  Muni  Singh,  Durga  Singh  and

Bramha  Singh  were  acquitted.  The  High  Court  in  appeal,

acquitted Bashistha Singh of all charges. The appeals filed by

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the other accused were dismissed with some cosmetic changes

in the nature of the offence.  

5. Before  we  embark  on  a  discussion  of  the  arguments

raised,  the  details  or  otherwise  of  the  appeals  filed  in  this

Court  need  to  be  reproduced.   It  may  be  mentioned  that

Chirkut Singh, Badri Singh and Briksh Singh did not file any

appeal in this Court.  Jang Bahadur Singh has filed Criminal

Appeal No.408/2005 whereas Bachan Singh and Sobhu Singh

have filed Criminal Appeal No.1176/2004 and Kailash Singh

and Kumar Singh have filed SLP No.599/2007.

6. Mr.  R.  Sundervardhan,  the  learned  senior  counsel

appearing  for  the  accused  appellants  has  raised  several

arguments before us.  He has first submitted that the genesis

of the occurrence was uncertain and as both sides appeared

to have come prepared and determined to fight, injuries had

been suffered by members of both groups on this account. It

has  also  been  pleaded  that  the  trial  court  had  adopted  an

extra ordinary procedure inasmuch as it had looked into the

case diary to find corroboration for the prosecution evidence

as  the  investigating  officer  had  not  cared  to  record  the

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statements of the prosecution witness and that this procedure

was unknown to law and therefore unacceptable in the light of

the judgments reported as  Habeeb Mohammad  vs. State of

Hyderabad 1954 SCR 475, Sakal Ahir & Ors. vs. Palakdhari

Ahir  AIR 1931 Patna 96 and Queens Empress  vs. Mannu

1897 ILR (19) Allahabad 390.   As against this, it has been

contended  by  the  learned  counsel  for  the  respondent-State

that the facts of the case clearly showed that the accused were

the aggressors and in the light of the fact that the incident

pertaining  to  Shekhar  Singh  had  taken  place  two  or  three

hours before the present incident, the question of a free fight

did not  arise.   It  has also  been pleaded  that  the  animosity

between the parties stood admitted and that in the light of the

fact  that  several  injured  witnesses  had  come  to  depose  in

favour of the prosecution, some discrepancies were bound to

occur in the ocular evidence recorded after 7 years as noted in

the  judgment  of  the  Supreme  Court  in  Leela  Ram (Dead)

through Duli Chand vs. State of Haryana & Anr.  (1999) 9

SCC 525.   

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7. We  have  considered  the  arguments  advanced  by  the

learned  counsel  for  the  parties.   Mr.  Sundarvardhan’s

argument is based on the observation of the trial Judge that

he had looked at the case diary in terms of Section 172 (2) of

the  Code  of  Criminal  Procedure.   A  bare  perusal  of  this

provision would reveal that a criminal court can send for the

police diaries of a case under trial in such court, and may use

such diaries, not as evidence of the case, but to aid it in such

inquiry or trial.  The facts of the case reveal that the I.O. could

not  be  examined,  as  in  the  meanwhile  he  had migrated  to

Pakistan and had died there and it is in this situation that the

trial  Judge  feeling  handicapped  on  account  of  the  non-

examination  of  the  I.O.  (though  the  witnesses  had  been

confronted with their previous statements) had a look into the

case diary as an additional factor to test the veracity of the

witnesses.  The cited cases only lay down the principle that

statements in a case diary cannot be utilized as evidence to

corroborate the statement of the prosecution witness.  This is

what the trial court had to say on this aspect:   

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“The  learned  advocate  for  the defense  has  contended  that  the  I.O.  of the case has not been examined by the prosecution for which the defense of the accused  persons  has  been  highly prejudiced.  It is true that the I.O.  of the case has not been examined but for that the  prosecution  is  not  to  be  blamed because  I  have  been  told  during  the course  of   argument  by  the  learned Addl.P.P. that in spite of his best efforts the  I.O.  could  not  turn  up  for  his evidence and it was reported that the I.O. Shri M.Mallik Khan, who was a Muslim gentlemen  left  the  country  for  Pakistan after  his  retirement  and  he  died  over there and besides that, on perusal of the statements  of  prosecution  witnesses  I find that the attention of PW3 was drawn towards  his  previous  statement  before the  I.O.  in  Para  15  of  his  cross- examination.  And similarly the attention of  PW4  was  drawn  towards  his  earlier statement made before the police in Para 12  of  his  cross-examination.   But  no such  attention  was  drawn  to  the  first informant,  who  is  PW5.   Likewise  the attention of PW6 was drawn toward her earlier statement made before the police in  Paras  2  and  9  of  her  cross- examination.  The attention of PW7 was drawn  towards  her  earlier  statement  in Para 4 of her cross-examination and that of  PW8  was  drawn  towards  his  earlier statement  in  Paras  12  and  14  of  his cross-examination.   And  I  have  also perused  the  case  diary  in  order  to appreciate  the  evidence  u/s  172  (2)

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Cr.P.C.  and  found  that  even  if  the  I.O. would  have  been  examined  no  material contradiction could have come out in the statements of the witnesses examined on behalf  of  the  prosecution  because  on material  points  all  the  witnesses examined  before  the  police  have  stated that accused Chirkut Singh gave a fatal shot to deceased  Bacha Singh, whereas accused Jang Bahadur gave a fatal shot to deceased Lakshman Singh.  And while describing the alleged P.O.  the I.O.  has fully  corroborated  this  fact  that  he  had found  the  trail  of  dragging  of  deceased Lakshman Singh and Bacha Singh from the  Khalihan  of  one  Marua  Singh. Therefore, I feel that non- examination of the I.O. has never prejudiced the defence of the accused persons.”

It  will  be clear from a perusal of the aforequoted paragraph

that the prosecution witnesses had been confronted with their

previous statements and even if we assume that the trial court

was not justified in looking into the case diary, it could not be

said to be prejudicial to the accused in the peculiar facts of

the case.

8.  It appears to be the admitted case that the deceased and

some members  of the accused party  were  closely  related  to

each  other  and  that  the  incident  had  occurred  as  Gati

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Kunwar, the widow of Ram Lakhan Singh had executed a deed

of relinquishment in respect of her landed property in favour

of the father of PW8 Nathuni Singh, though a part of that land

was being cultivated by the accused. The trial court also found

that PW5 Bhagwati Devi had admitted in her statement that

her  husband  Ram  Dev  Singh  had  sent  for  the  deceased

Lakshman Singh and Bacha Singh, their  sons-in-law before

the  alleged  occurrence,  and that Lakshman Singh had also

come to the place armed with a country made weapon.   The

court has also observed that that it was equally true that the

accused  Muni  Singh,  Brahma  Singh  and  Durga  Singh

belonged to  village  Bakurahan,  accused  Bashishta  Singh to

village Fakrabad and accused Badri Singh to village Bhadayee

whereas accused Muni Singh and Brahma Singh had admitted

in the statement u/s 313 Cr.P.C. that they were relations of

Nand  Kishore  Singh  deceased,  whereas  accused  Bashistha

Singh  was  the  brother-in-law  of  Chirkut  Singh  and  Jang

Bahadur Singh and Durga Singh accused was also related to

accused Bachan Singh.  The Court has accordingly drawn an

inference  that  both  sides  had  collected  their  relatives  and

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supporters from several villages before the alleged occurrence

and had clashed with each other and that in the exchange of

fire, two persons from the complainant’s side and one from the

side of the accused had been killed.  It is in this background

and  the  findings  of  the  trial  court  that  we  have  chosen  to

examine the arguments raised.   

9. Mr R. Sundarvardhan’s primary argument has been that

the incident was the outcome of a free fight between the two

groups after they had made preparations to settle scores.  We

have examined the statement of PW5 Bhagwati Devi, the first

informant,  who  deposed  that  5  or  6  days  before  the

occurrence, Chirkut Singh’s crop had been burnt on which a

complaint  had  been  lodged  against  her  sons-in-law  (the

deceased), her son and her husband and that Chirkut Singh

had threatened  her  sons-in-law that  they  would  be  beaten.

She also stated that Lakshman Singh often carried a country-

made gun though he had no licence for it.  It is apparent from

her evidence that a free fight between the parties had taken

place during the course of which several shots had been fired

resulting in three deaths from both groups.  The stand taken

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by Bhagwati Devi has been supported on material points by

the other prosecution witnesses.  We are of the opinion in the

facts stated above, that both the parties appeared to be itching

for  a  fight  and had collected  their  relatives  and supporters

from far and between to augment their strength.  In this view

of  the  matter,  we  are  disinclined  to  go  into  the  other

arguments raised by the learned counsel for the appellants.

10. In the light of what has been discussed above, we find

that  both  groups  must  share  equal  responsibility  for  this

incident.  Accused Chirkut Singh who has been attributed the

gun shot injury on Bacha Singh and Jang Bahadur Singh who

had likewise given a fatal injury to Lakshman Singh must be

held liable for offences punishable under section 302 IPC and

section 27 of the Arms Act. The trial court acquitted Bashistha

Singh charged under section 307 for having caused a gun shot

injury  to  Nathuni  Singh  but  convicted  him  for  the  offence

under  section 148 of  the IPC.   In  appeal,  however,  he was

acquitted  of  this  charge  as  well.   We  accordingly  dismiss

Criminal Appeal No.408 of 2005 filed by Jang Bahadur Singh,

and as Chirkut Singh has filed no appeal  in this Court, we

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maintain  his  conviction  as  well.  Criminal  Appeal  No.

1176/2004  filed  by  Bachan  Singh  and  Sobhu  Singh  are

allowed  whereas  we  grant  leave  in  SLP  No.599/2007  and

order the acquittal of Kailash Singh and Kumar Singh as well.  

11.       We have seen from the record that Badri Singh and

Briksh Singh have not filed any appeal in this Court.  In the

light of the judgments reported in  Raja Ram and others vs.

State of M.P. (1994) 2 SCC 568,  Arokia Thomas vs.  State

of T.N. (2006) 10 SCC 542 and  Suresh Chaudhary etc. vs.

State  of  Bihar  (2003)  4  SCC  128,  the  benefit  of  this

judgment must also flow to these accused.  In para 3 of the

judgment in Arokia’s case, it was observed:

“So  far,  as  accused  Dhanasekaran  is concerned,  it  is  true  that  he  has  not preferred  any appeal,  but  in  view  of  our finding  aforementioned  that  the prosecution  case  is  highly  doubtful  and there  is no ground for distinguishing the case  of  the  accused  Dhanasekaran  from that of  the appellant,  we are  of  the view that  he  is  also  entitled  to  acquittal irrespective  of  the  fact  that  he  has  not moved this court.”

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In  Suresh Chaudhary’s case (supra), this is what the court

had to say:

“This leaves us to consider the case the one  another  accused  namely  Sona  @ Sonwa  Chaudhary  who  was  one  of  the accused  before  learned  Sessions  Judge who came to be convicted by him vide his judgment  in  Sessions  Trial  No. 417/1993.  He  along  with  other appellants  herein  had  preferred  the criminal appeal before the High Court of Patna which is Crl. A. No. 88/1995 which came to be  dismissed  by the impugned judgment. For some reason or the other he has not preferred any appeal and has accepted the judgments of courts below. We, in these appeals,  have come to the conclusion  that  the  prosecution  has failed  to  establish  its  case  against  the appellants which finding is applicable to all the accused. The question then arises whether  the  benefit  of  this  judgment  of ours  should  be  extended  to  the  non- appealing accused namely Sona @ Sonwa Choudhary or not. This Court in a catena of cases has held where on the evaluation of  a  case  this  Court  reaches  the conclusion  that  no  conviction  of  any accused is possible, the benefit of doubt must  be  extended  to  the  co-accused similarly  situated  though  he  has  not challenged the order of conviction by way of an appeal. [See: Bijoy Singh v. State of Bihar,  (2002)  9  SCC  147].  This  Court while rendering the above judgment has placed reliance on some other judgments

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of this Court in Raja Ram v. State of M.P., (1994)  2  SCC  568,  Dandu  Lakshmi Reddy v. State of A.P., (1999) 7 SCC 69 and Anil  Rai v. State of Bihar,  (2001)  7 SCC 318, wherein this Court had taken a similar view. Following the above dictum of this Court in the judgments noticed by us  hereinabove,  we  are  of  the  opinion since  we  have  come  to  the  conclusion that  no  conviction  of  any  accused  is possible  based  on  the  prosecution  case as  presented,  it  becomes  our  duty  to extend  the  benefit  of  acquittal  in  these appeals also to a non-appealing accused, therefore, Sona @ Sonwa Choudhary who is  the  first  accused  before  the  Sessions Court in Sessions Trial  No. 417/93 and who  was  the  first  appellant  before  the High Court in Crl. A. No. 88 of 1995 will also  be  acquitted  of  all  the  charges  of which  he  is  found  guilty  by  the  two courts below.”

A similar order had been made by this Court in Raja Ram’s

case (supra) in the light of Article 142 of the Constitution of

India.  Be that as it may, in this background, Badri Singh and

Briksh  Singh  who  had  both  filed  Criminal  Appeal

No.501/1987 in  the  High Court  and were  unsuccessful  are

also  entitled  to  acquittal.   The  appeals  are  accordingly

disposed of.   

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………………………….J. ( S.B. SINHA )

……………………………J.  ( HARJIT SINGH BEDI)

New Delhi, Dated: September 11,  2008

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