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PETITIONER: BALAK RAM ETC.

       Vs.

RESPONDENT: THE STATE OF U.P.

DATE OF JUDGMENT16/08/1974

BENCH: CHANDRACHUD, Y.V. BENCH: CHANDRACHUD, Y.V. KHANNA, HANS RAJ

CITATION:  1974 AIR 2165            1975 SCR  (1) 753  1975 SCC  (3) 219  CITATOR INFO :  D          1976 SC2199  (9)  R          1989 SC1205  (16)  R          1989 SC1890  (26)  R          1990 SC1185  (2)  RF         1992 SC  49  (9)

ACT: Appeal   against  acquittal--two  views  of   the   evidence reasonably  posssible--High  Court,  whether  justified   in interfering with the order of acquittal passed by the  trial Court. Criminal Trial--Material witnesses, non-examination of--Duty of the prosecution--Prosecution not to rely on  insufficient data for non-examining of material witnesses. Criminal  Trial--Evidence  of  prosecution  witnesses  whose statements are recorded under sec. 164 Cr.P.C.--Appreciation of  their  evidence--Court to approach their  evidence  with caution. Constitution   of  India,  1950,   Article   136--Concurrent findings  of  fact--Supreme  Court,  when  can   re-appraise evidence. Code  of  Criminal  Procedure--Section  374--Reference   for confirmation  of  the  death  sentence--Duty  of  the   High Court--High Court to examine for itself the entire  evidence independently of Sessions Court.

HEADNOTE: Two persons, Tribeni Sahai and Radhey were shot dead in  the town of Dataganj, District Budaun.  The four appellants were tried  along with two others by the learned Sessions  Judge, Budaun,   for  various  offences  in  connection  with   the incident.   Balak Ram was convicted under sec. 302  IPC  and sentenced  to  death.  He was also convicted  and  sentenced under  sec. 337 read with sec. 149 for causing  injuries  to Jhilmili and Ram Prakash and under sec. 148 IPC.  The  other five  were acquitted of all the charges.  Sentence of  death imposed  on Balak Ram was confirmed by the High Court.   But in  the  appeal  filed by the State  against  the  order  of acquittal  passed  by  the Sessions Court,  the  High  Court confirmed  the acquittal of Kailash, but  convicted  Nathoo, Dr. R. P. Kohli and Mohd.  Sayeed Khan and Danney Khan under sections  302  and  307  read with  sec.  149.   It  further

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convicted Nathoo and Dr. Kohli under section 148 and  Banney Khan under section 147 of the Penal Code.  The three accused have  been sentenced by the High Court to  imprisonment  for life for their participation in the murder of Tribeni  Sahai and   Radhey  and  concurrently  to  ten   years’   rigorous imprisonment  for  causing  injuries  to  Jhilmili  and  Ram Prakash.  Balak Ram Nathoo, Dr. Kohli and Banney Khan,  have filed four separate appeals by special leave of this Court. The prosecution case was that at about 9-15 p.m. on May  the 27  the six accused along with 15 or 20 of  their  followers went  about  canvassing for them candidates put  up  by  the Congress (0).  A little later, they went southwards  through a  lane  which leads to the house of  the  deceased  Tribeni Sahai.  He was having an after-dinner stroll with Radhey and as he reached the inter-section of a cement road passing  by his  house  and the line by which  the  processionists  were proceeding, the appellants who were leading the  processions started  raising  offensive slogans  against  him.   Tribeni Sahai  protested and a wrangle ensued.While hot  words  were being  exchanged,  Dr. Kohli, Banney Khan  and  Pearey  Mian exhorted Balak Ram to fire.  Balak Ram stepped out, stood on the  raised ground to the east of the lane and fired a  shot at  Tribeni  Sahai  with  a licensed  pistol  which  he  was carrying.  Tribeni Sahai had sensed danger and was trying to escape  but  he was hit by a bullet on  the  right  scapular region.  Radhey who was a few paces behind Tribeni Sahai ran forward to protect him when Balak Ram, Nathoo and Dr.  Kohli fired  four or five shots.  Radhey received a pistol  injury on the. left back.  Jhilmili and Ram Prakash who live 2-L192SupCI /75 754 nearby  came  running  in protest  but  they  also  received injuries as a result of the shots fired by Balak Ram, Nathoo and  Dr.  Kohli.   Nathoo, like Balak Ram,  was  carrying  a pistol  while Dr. Kohli was armed with a licensed  revolver. Jhilmili  received  an injury on his left  thigh  while  Ram Prakash  was found to have a superficial burn on  the  right side of his abdomen, According  to  the prosecution, Rajendra  Kumar  Misra  gave information  of  the  incident at 4-45 p.m.  at  the  Police Station which is about two furlongs away.  The Station House Officer.  Yogendra Sharma, asked a head constable to  record the First Information Report.  The S.H.O. signed the  report and  hurried to the scene of occurrence.  The S.H.O.  claims to have taken down the dying declaration of Tribeni Sahai in the case diary which he had taken with him while leaving the police  station.   This  is the second of  the  three  dying declarations.   The first one is said to have been  made  to Dharam Pal, the rival candidate of the appellant Balak  Ram. The  third  one was in the Budaun Hospital before  the  Sub- Divisional  Magistrate.  These four appeals have been  filed by special leave of this Court. It  was  contended  (i) the High  Court  had  no  sufficient reasons  for interfering with the order of acquittal  passed by  the Sessions Court in favour of Nathoo.  Dr.  Kohli  and Banney  Khan  and (ii) the High Court was not  justified  in upholding  the conviction of Balak Ram and the  sentence  of death imposed on him by the Sessions Court. Dismissing  the appeal of Balak Ram and allowing  the  other three appeals, HELD:  (i)  If  the High Court has set  aside  an  order  of acquittal the Supreme Court in an appeal under Art. 136 will examine  the evidence only if the High Court has  failed  to apply  correctly  the principles governing  appeals  against acquittal.   The  powers of the High Court are as  full  and

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wide  in  appeals against acquittal as  in  appeals  against conviction,  but, amongst other things, if two views of  the evidence are reasonably possible the High Court ought not to interfere  with the order of acquittal passed by  the  trial court.[762A-C] Ram  jag amd  Ors. v. The State of U.P. (1974) 4 S.C.C.  201 relied on. An  examination of the various items of evidence  on  record discloses that the conclusion to which the learned  Sessions Judge  came  was  a reasonable conclusion to  come  to.   It cannot  be  denied  that  two  views  of  the  evidence  are reasonably  possible  in  regard  to  the  participation  of Nathoo,  Dr.  Kohli  and  Banney  Khan.   The  High   Court, therefore, ought not to have interfered with the judgment of the Sessions Court in their favour. [770F-G] (ii) In the F.I.R. Rajendra Kumar mentioned that Loki, Ganga Ram  and Aryendra had seen the incident.  Neither Ganga  Ram nor  Loki  was examined by the prosecution and  the  learned public prosecutor stated that Loki had been won over by  the defence.  Such a bold assertion, unsupported by any data, is insufficient  to  absolve  the prosecution of  its  duty  to examine witnesses whose evidence is necessary for  unfolding its case. [764F-H] (iii)The  Statements  of three  prosecution  witnesses  were recorded  under  164 Cr.P.C. soon after the  incident.   The Investigating  Officer  said  that  be  got  the  statements recorded  by way of precaution.  ’Mat could be true  and  it would be wrong to find fault with him merely because he  got the  statements of these Witnesses recorded under  ec.  164. Nor can the evidence of a witness be discarded for the  mere reason that his statement was recorded under sec. 164.   But the High Court overlooked that the evidence of these witness must  be approached with caution.  Such witnesses feel  tied to  their previous statements given on oath and hive  but  a theoretical  freedom to depart from the earlier version.   A prosecution for perjury could be the price of that  freedom. it  is open to the court to accept the evidence  of  witness whose statement was recorded under sec. 164 but the  salient rule  of caution must always be borne in mind.  That is  all the  more  necessary when almost all the  eye-witnesses  are subjected to this tying-up process. [768B-E] 755 (iv)  The powers of the Supreme Court under Article  136  of the  Constitution  are  wide but  in  criminal  appeals  the Supreme  Court  does  not  interfere  with  the   concurrent findings   of  fact  save  in   exceptional   circumstances. Normally  the High Court is a final court of appeal and  the Supreme Court is only a Court of special jurisdiction.  This Court would not, therefore, re-appraise the evidence unless, for  example the forms of legal process are  disregarded  or principles  of natural Justice are violated  or  substantial and grave injustice has otherwise resulted. [761G-H] Ramabhupala  Reddy and Ors. v. The State of  Andhra  Pradesh A.I.R. 1971 SC 460 relied on. (v)  Balak Ram examined two witnesses, D.W. 7 and D.W. 9  to establislh  his plea of alibi but the evidence  was  rightly rejected  by  the trial court.  It is in  the  least  degree likely  that Balak Ram who was contesting the  election  for Chairmanship of the Committee would be away from the  hubbub of politics on the eve of elections.  All the same. the High Court ought to have considered that evidence for what it was worth.   In  a  reference  for  confirmation  of  the  death sentence under sec. 374 Cr.P.C. the High Court must  examine the entire evidence for itself, independent of the  Sessions Court. [772G-H]

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Bhupendra Singh v. The State of Punjab [1968] 3 SCR 404  and Jumman and Ors. v. The State of Punjab AIR 1957 SC 469.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 72  of 1973. Appeal  by Special leave from the Judgment and  Order  dated the  22nd December 1972 of the Allahabad High Court in  Crl. A. No. 895 of 1972 and Referred No. 82 of 1972 and Criminal Appeal Nos. 25, 34-35 of 1973. Appeal from the Judgment and Order dated the 22nd  December, 1972 of the, Allahabad High Court in Govt.  Appeal No.  1448 of 1972. Frank  Anthony, K. C. Agarwala, M. L. Srivastava and  E.  C. Agarwala for the appellant in Crl.  A. 72 and 35/73. D. P. Uniyal, N. K. Johri and 0. P. Rana for the  respondent in Crl.  A. 72/73. M.  C. Bhandari, P. H. Parekh and Mrs. S. Bhandare  for  the appellant in Crl.  A. No. 34 of 1973. O. P. Rana for the respondent in Crl.  A. Nos. 25, 34-35/73. S. K. Bisaria for the appellant in Crl.  A. No. 25/73. The Judgment of the Court was delivered by CHANDRACHUD,  J. On May 27, 1971 two persons called  Tribeni Sahai  and  Radhey were shot dead in the town  of  Dataganj, District  Budaun.  The four appellants : Balak Ram,  Nathoo, Dr.  R. P. Kohli and Mohd.  Sayeed Khan @ Banney  Khan  were tried  along with two others by the learned Sessions  Judge, Budaun,  for  various  offences  in  connection  with   that incident.  Balak Ram was convicted under section 302 of  the Penal  Code  and  was  sentenced  to  death.   He  was  also convicted and sentenced under section 337 read with  section 149  for  causing injuries to Jhilmili and Ram  Prakash  and under section 148, Penal Code.  The learned judge  acquitted the other five accused of all 756 the  charges.  Out of these five, we are not  now  concerned with Kailash whose acquittal is not under challenge and with Ahmed  Sayeed  Khan alias Pearey Mian who  died  during  the pendency of the proceedings in the High Court of Allahabad. The High Court by its Judgment dated December 22, 1972 con-@ firmed the conviction of Balak Ram and the sentence of death imposed  on  him under section 302 as  also  his  conviction under  section 148.  The High Court altered  his  conviction under section 337 read with section 149 to one under section 307 read with section 149 of the Penal Code. In  an appeal against the order of acquittal passed  by  the Sessions  Court, the High Court confirmed the  acquittal  of Kailash,  but  convicted Nathoo, Dr. R. P. Kohli  and  Mohd. Sayeed  Khan @ Banney Khan under sections 302 and  307  read with section 149.  It further convicted Nathoo and Dr. Kohli under  section 148 and Banney Khan under section 147 of  the Penal  Code,  The three accused have been sentenced  by  the High Court to imprisonment for life for their  participation in  the murder of Tribeni Sahai and Radhey and  concurrently to ten years’ rigorous imprisonment for causing injuries  to Jhilmili and Ram Prakash.  Balak Ram, Nathoo, Dr. Kohli  and Banney  Khan  have filed four separate  appeals  by  special leave of this Court. The  incident  leading to the murder of  Tribeni  Sahai  and Radhey  arose, indisputably, out of political  rivalry,  the parties  involved being the Congress (R), Congress  (0)  and the Bhartiya Jan Sangh.  Tribeni Sahai was a sitting  Member of  the U.P. Legislative Assembly, elected on the  Congress,

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(R)  ticket  while the other victim Radhey is said  to  have been  his bodyguard.  Balak Ram, Nathoo and Banney Khan  be- longed  to  the Congress (0) while Dr. R. P. Kohli  was  the local President of the Jan Sangh. The  elections to the Town Area Committee of  Dataganj  were scheduled  to  be  held  on May 30,  1971.   Balak  Ram  was contesting the election to the Chairmanship of the Committee as  a  nominee  of  Congress (0).   Dharam  Pal,  the  rival candidate  for Chairmanship was a nominee of  Congress  (R). Nathoo and Banney Khan were contesting the election for  the membership  of the Committee on the ticket of Congress  (0). The  Jan  Sangh  seems  to  have  decided  to  support   the candidature  of  Balak  Ram and others who were  put  up  by Congress (0). The  election  campaign  launched  by  the  rival  political parties  led to great acrimony.  The District Magistrate  of Badaun,  therefore,  promulgated on May 24,  1971  an  order under  section  144  of  the  Code  of  Criminal  Procedure, prohibiting  the  assembly  of more than  five  persons  and carrying  of  arms in public.  If defiance  of  this  order, Balak Ram led a procession cf some 25 persons at about  6.30 p.m.  on  May 27, 1971.  While passing by the house  of  the rival  candidate  Dharam  Pal,  the  processionists   raised various slogans whereupon Dharam Pal formed a procession  of his  own followers.  The two processions stood  facing  each other at the crossing of a road but the Station House  Offi- cer Yogendra Sharma persuaded both the parties to disperse. 757 The  case of the prosecution in regard to the main  incident leading  to the double murder may be stated thus : At  about 9.15  p.m. on May 27 the six accused along with 15 or 20  of their followers went about canvassing for the candidates out up  by  the  Congress  (0).   A  little  later,  they   went southwards  through a lane which leads to the house  of  the deceased  Tribeni  Sahai.   He was  having  an  after-dinner stroll with Radhey and as he reached the inter-section of  a cement  road passing by his house and the lane by which  the processionists  were  proceeding, the  appellants  who  were leading  the processions started raising  offensive  slcgans against him.  Tribeni Sahai protested and a wrangle  ensued. While hot words were being exchanged, Dr. Kohli, Banney Khan and  Pearey  Mian  exhorted Balak Ram to  fire.   Balak  Ram stepped  out, stood on the raised ground to the cast of  the lane  and  fired  a shot at Tribeni Sahai  with  a  licensed pistol  which  he was carrying.  Tribeni  Sahai  had  sensed danger  and was trying to escape but he was hit by a  bullet on  the right scapular region.  Radhey ’Who was a few  paces behind  Tribeni Sahai ran forward to protect him when  Balak Ram, Nathoo and Dr. Kohli fired four or five shots,.  Radhey received a pistol injury on the left back.  Jhilmili and Ram Prakash  who  live nearby came running in protest  but  they also  received  injuries as a result of the shots  fired  by Balak  Ram, Nathoo and Dr. Kohli.  Nathoo, like  Balak  Ram, was  carrying  a  pistol while Dr. Kohli was  armed  with  a licensed  revolver.  Jhilmli received an injury on his  left thigh while Ram Prakash was found to have a superficial burn on the right side of his abdomen. According  to the prosecution, Rajendra Kumar Misra gave  in formation of the incident at 9.45 p.m. at the police station which  is about two furlongs away.  Rajendra Kumar Misra  is the brother-in-law of Radhey Shyam Sharma who is the brother of  the  deceased Tribeni Sahai.  Radhey Shyam was,  at  the material  time, the Deputy Inspector General of  Police  and was  stationed  at  Lucknow.   The  Station  House  Officer, Yogendra Sharma, asked a head constable to record the  First

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Information  Report.   The  S.H.O.  signed  the  report  and hurried  to the scene of occurrence.  Rajendra Kumar  stayed behind  at the police station in order to obtain a  copy  of the First Information Report. Dharam  Pal,  who was the rival candidate of  the  appellant Balak Ram for the, Chairmanship of the Town Area  Committee, went to the scene of occurrence on hearing the  pistol-fire. Tribeni Sahai is alleged to have told him that Balak Ram had fired a shot at the instigation of Banney Khan, Pearey  Mian and  Dr. Kohli.  In a short while, the motor cars of  Dharam Pal  and  Rajendra Kumar Misra arrived at  the  place  Where Tribeni Sahai and Radhey were lying injured.  Tribeni Saba-. was  put  in  the  car  of  Rajendra  Kumar  Misra  and  was accompanied by his wife and daughter.  Radhey was put in the other  car  but  before the two cars left on  their  way  to Budaun,  Yogendra Sharma the S.H .0. arrived at  the  scene. He  dispersed the crowd which had surrounded the  two  cars. He  tried to interrogate Radhey but failed to get  any  res- ponse as Radhey was unconscious.  He then went to the  other car and the allegation is that he was told by Tribeni  Sabai that Balak Ram had 758 fired a shot at the instigation of Banney Khan, Pearey  Mian and  Dr.  Kohli.  The Station House Officer claims  to  have taken down the dying declaration in the case diary which  he had taken with him while leaving the police station. The  tow cars reached the Civil Hospital at Budaun at  11.30 p.m.  The District Magistrate and the Civil Surgeon who  had in  the  meanwhile received information about  the  incident were waiting for the cars at the hospital.  Radhey, on being taken out of the car, was declared dead while Tribeni  Sahai was taken to the Emergency Ward.  As his condition was found to  be precarious the Sub-Divisional Magistrate,  Sada  Ram, was  sent for in order to record the dying declaration.   On his  arrival,  Sada  Ram  recorded  Tribeni  Sahai’s   dying declaration,  the  third in the series.  Tribeni  Sahai  was thereafter taken to the Mission Hospital at Barielly but  he succumbed to his injury at 8.30 p.m. on the 28. In   the  meanwhile,  Yogendra  Sharma  had  commenced   the investigation.   He went to the house of Tribeni  Sahai  and informed  the  Superintendent of Police,  Budaun,  on  trunk telephone  about  the occurrence.  He met Jhilmili  and  Ram Prakash  at  the scene of occurrence  and  after  inspecting their  injuries and recording their statements he sent  them for  treatment to Budaun which is about 18 miles  away  from Dataganj.   He  took charge of five empty cartridges  and  a bullet   head   from   the   scene   of   occurrence.    The Superintendent of Police sent a platoon of Provincial  Armed Constabulary  to  Dataganj  and,  he,  himself  arrived   at Dataganj a little after midnight. Dr. Kohli’s house is alleged to have been searched at  night but he could not be found nor was any incriminating  article discovered.   At  about  2.30  a.m.  the  same  night,   the Investigating Officer is alleged to have arrested Dr.  Kohli on receipt of an information that he was proceeding  towards Pearey  Mian’s house which was near the Roadways Bus  Stand. Dr. Kohli was taken to his house and it is alleged that  his wife produced his licensed revolver from inside the Niwar of a cot.  The Investigating Officer opened the chamber of  the revolver  and  found  that it was  loaded  with  three  live cartridges  and was emanating the smell of a  freshly  fired bullet.   Banney  Khan was arrested at 5 a.m.  on  the  28th Balak Ram’s house was searched but he could not be found. On  the night between the 27th and 28th May, eleven  persons were  arrested by the Investigating Officer apart  from  Dr.

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Kohli, Banney Khan and Kailash.  Those persons were arrested on  information  given by one Abdul Rahman  that  they  were involved  in  a conspiracy to commit the murder  of  Tribeni Sahai. Balak  Ram, Nathoo and Pearey Mian surrendered  respectively on  29th  May, 7th June and II th June.  On 1st  June  Balak Ram’s  father  surrendered  in the  court  of  the  Judicial Magistrate  a licensed automatic Pistol belonging  to  Balak Ram. The postmortem examination on Radhey was performed by  Dr.A. S. Gupta on 28th May.  He found a circular lacerated wound 759 1/2x 3/10" cavity deep on the posterior axillary line on the left  side of the axillary pit and a confusion on the  right side  of  the  chest.  Dr. Gupta  recovered  a  bullet  from Radhey’s body. The  postmortem  on  the  dead body  of  Tribeni  Sabai  was performed by Dr. S. Mitra on 29th May.  He found on the dead body  a gun shot wound 1C x 1:C chest cavity deep below  the right scapular region. The  injuries of Jhilmili and Ram Prakash were  examined  by Dr.  R. C. Bansal of the District Hospital, Budaun  on  28th May.  He found on the person of Jhilmili a fire-arm wound of entry  on  the left thigh and a wound of exit  on  the  same thigh.  On the person of Ram Prakash was found a superficial burn 1" x 1" on the right side of the abdomen. The licensed revolver of Dr. Kohli, the automatic pistol  of Balak Ram, the bullet which was recovered from the dead body of  Radhey  and  the five empty cartridges as  well  as  the bullet head recovered from the scene of occurrence were sent by  the  Investigating Officer for ballistic  tests  to  the Scientific  Section C.I.D., Lucknow.  The ballistic  expert, Shyam Narain, opined that the bullet recovered from Radhey’s body  was fired from Balak Ram’s pistol but that the  bullet seized  from  the scene of occurrence was  fired  from  some other weapon. The  defence of the appellants, broadly, was that they  were falsely  implicated on account of political  rivalry.   They contended  that  the  witnesses  had  given  false  evidence against  them either because they were friends or  relatives of Tribeni Sahai or because of the pressure exerted on  them by  the police at the instance, partly, of  Tribeni  Sahai’s brother  Radhey Shyam, who was the Deputy Inspector  General of Police and a Member of the Vigilance Commission, U.P. Balak  Ram pleaded alibi saying that he was at Lucknow  from May  25.  He led evidence in support of his plea  of  alibi, Nathoo  admitted  that  he  was related  to  Balak  Ram  but contended  that  he  was  contesting  the  election  to  the membership  of  the Town Area Committee  as  an  independent candidate.  He also pleaded alibi saying that he had gone to Chandausi on the morning of 27th and returned to Dataganj on May  29.  He stated that he wanted to surrender earlier  but being informed that Radhey Shyam, D.I.G., had issued  orders for  shooting the accused, if found, he could not  surrender till June 7. Dr. Kohli admitted that he was the President of the  local unit of the Jan Sangh, but denied that there  was any  personal  enmity  between him and  Tribeni  Sahai.   He denied  that he was arrested at about 3.30 a.m. on the  28th May  or  in the circumstances alleged by  the  Investigating Officer  that his revolver was handed over by his wife.   He contended  that  while he was closing- his clinic  at  about 10.30  p.m. on the 27th he was taken by a constable  to  the police  station  on the pretext that he was  wanted  by  the Station  House  Officer.  While he was in detention  at  the police station, the Station House Officer went to his  house

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and  obtained his revolver from his wife.  According to  Dr. Kohli,  Dharma  Pal, Raiendra Kumar Misra and  two  lawyers, Nawal  Kishore and Sultain Ahmed came to the police  station and had a long 760 meeting  with the Investigating Officer at about 3  p.m.  on the  28th.   Those  under arrest  were  thereafter  sent  to Budaun. The two brothers Banney Khan and Pearey Mian admitted that a civil litigation was pending between them and Tribeni  Sahai on the date of occurrence.  Banney Khan admitted that he was a candidate for election to the membership of the Town  Area Committee  as a nominee of Congress (0).  He stated that  he was the Vice-Chairman of the Town Area Committee since  1937 and claimed that enemy candidate he had supported during the past  many years for the Chairmanship of the  Committee  had been  successful.  He alleged that he was implicated at  the instance  of Dharam Pal who was contesting the  Chairmanship on  the  ticket  of Congress (R).  Like Dr.  Kohli  he  also contended  that he was sent to Budaun at about 3.30 p.m.  on the 28th. Each of the appellants denied knowledge of the order  passed by  the  District  Magistrate under  section  144,  Criminal Procedure  Code  and  each one denied his  presence  in  the procession  which  was taken out at about 6.30 p.m.  on  the 27th.   Their  presence in the later  procession  and  their participation  in the incident under inquiry’ was of  course denied by them. The  learned Sessions Judge, Budaun, came to the  conclusion that  none  of  the  eye-witnesses  including  the   injured Jhilmili  and  Ram  Prakash  could  be  relied  upon  unless independent corroboration was ,available to their testimony. The  learned  Judge  took  the same  view  about  the  dying declarations  alleged  to have been made by  Tribeni  Sahai. Except  for Balak Ram, the other accused were  acquitted  by the  learned  Judge  as independent  corroboration  was  not available to the evidence of the witnesses in regard to  the part  played  by those accused.  In so far as Balak  Ram  is concerned, the learned Judge convicted him for the murder of Tribeni  Sahai and Radhey on the view that the  evidence  of the  eye-witnesses  and the dying  declarations  of  Tribeni Sahai  were  corroborated by the opinion  of  the  Ballistic Expert,  Shyam Narain, who stated that the bullet  recovered from  the  dead body of Radhey was fired  from  Balak  Ram’s pistol.   The  learned Judge further held that  it  was  not clear  as to who else were members of the unlawful  assembly responsible for the murders of Tribeni Sahai and Radhey  but since  it  was  clear that there was  in  fact  an  unlawful assembly, Balak Ram was liable to be convicted under section 148,  Penal Code.  The learned Judge acquitted Balak Ram  of the charge under section 307 read with section 149 in regard to the injuries received by Jhilmili and Ram Prakash but  he convicted him under section 337 read with section 149 on the ground  that his reckless act in firing from his pistol  had endangered  human life and had caused hurt to  Jhilmili  and Ram Prakash. Apart  from  the injured Jhilmili (P.W. 1) and  Ram  Prakash (P.W.  11),  the prosecution examined Rajendra  Kumar  Misra (P.W.  13) and Aryendra Nath (P.W. 19) as  eye-witnesses  to the  occurrence.  Rajendra Kumar Misra who lodged the  First Information Report at the Dataganj police station is a close relative of the deceased Tribeni 761 Sahai  and  was at the relevant time the  President  of  the local  unit of Congress (R).  The High Court therefore  felt

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that  he could not be regarded as an  "entirely  independent witness’.   But his evidence was accepted by the High  Court for  the,  reason  that it was "corroborated  by  the  first information  report  lodged by him promptly".   The  prompt, lodgment  of the F.I.R. was in turn held to be  corroborated by  the evidence of Head Constable Jai Prakash (P.W. 2)  and the  Investigating Officer Yogendra Sharma (P.W.  24).   The High Court accepted the evidence of Jhilmili and Ram Prakash who,  according to it, were independent witnesses.  The  two witnesses  were said to corroborate each other  individually and  together they were held to corroborate the evidence  of Rajendra Kumar Misra.  Aryendra Nath is the sister’s son  of Dharam Pal who, on the ticket of Congress (R) was contesting the election to the Chairmanship of the Town Area Committee. The  High  Court  therefore  held  that  he  could  not   be considered  as an independent witness but his  evidence  was accepted  as it was in "full accord’ with that  of  Jhilmili and Ram Prakash.  Finally, the High Court accepted the three dying  declarations of Tribeni Sahai as true  and  voluntary observing  that  they  provided full  corroboration  to  the testimony of Jhilmili, Ram Prakash and Aryendra Nath In  the result  the High Court accepted the prosecution case in  its entirety  except  in regard to Kailash and  convicted  Balak Ram, Nathoo, Dr. Kohli and Banney Khan as mentioned earlier. Broadly, the two questions which arise for consideration are whether  the  High  Court was  justified  in  upholding  the conviction of Balak Ram and the sentence of death imposed on him  by  the Sessions Court and secondly  whether  the  High Court  had good and sufficient reasons for interfering  with the  order  of  acquittal passed by the  Sessicns  Court  in favour  of Nathoo, Dr. Kohli and Banney Khan.  Our  approach to these two questions has to be basically different because whereas in regard to Balak Ram there is a concurrent finding of  fact that he was responsible for committing the  murders of  Tribeni  Sahai and Radhey and for  causing  injuries  to Jhilmili  and  Ram  Prakash, in regard to  the  other  three appellants  the  two courts have differed,  the  High  Court having interfered with the order of acquittal passed by  the trial court in their favour. The  powers of the Supreme Court under Article 136 are  wide but  in criminal appeals this Court does not interfere  with the   concurrent  findings  of  fact  save  in   exceptional circumstances.   In Ramabhupala Reddy and Ors. v. The  State of  Andhra Pradesh,(1) it was observed that it was  best  to bear  in mind that normally the High Court is a final  court of  appeal and the Supreme Court is only a Court of  special jurisdiction.   This Court would not  therefore  re-appraise the evidence unless, for example, the forms of legal process are  disregarded  or  principles  of  natural  justice   are violated  or substantial and grave injustice  has  otherwise resulted.  In dealing with the appeal filed by Balak Ram  we shall have to keep this position in mind. (1) A.I.R. 1971 S.C. 460. 762 In  so far as Nathoo, Dr. the question for consideration  in interfering with the order the Sessions Court.  In Ram  this Court  held  after  a review Court has set  aside  an  order appeal  under  Article 136 will Kohli and  Banney  Khan  are concerned  is  whether  the  High  Court  was  justified  of acquittal  passed  in their favour by Jag and  Ors.  v.  The State  of U.P. (1) of previous authorities that if the  High of  acquittal the Supreme Court in an examine  the  evidence only  if  the High Court has failed to apply  correctly  the principles governing appeals against acquittal.  It was held in  that case that the powers of the High Court are as  full

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and  wide in appeals against acquittal as in appeal  against conviction but, amongst things, if two views of the evidence are  reasonably possible the High Court ought  to  interfere with the order of acquittal passed by the trial court. It would be convenient to deal first with the appeals  filed by Nathoo, Dr. Kohli and Banney Khan who have the benefit of an order of acquittal passed in their favour by the Sessions Court.   For  a  proper  understanding of  the  case  it  is necessary  to  have a glimpse of the  political  canvass  of Dataganj.   The deceased Tribeni Sahai, Dharam Pal  who  was contesting the election to the Chairmanship of the Town Area Committee, the 79 year old Banney Khan and Dr. Kohli who was the  President of the Jan Sangh unit were keyfigers  in  the Datagani Politics.  The story of their doings is the not un- familiar tale of floor-crossing and internal splits.  In the Assembly   election  of  1967  an   independent   candidate- incidentally, a retired District Judge-won on the support of other political parties though some of these parties had put up  their  own  candidates.   The  Congress  (R)   candidate supported by Tribeni Sahai lost that election and the  Judge won.  In the election to the Town Area Committee held in the same year.  Tribeni Sahai supported a Jan Sangh candidate as against  Dharam  Pal who was put up by  the  Congress.   Dr. Kohli,  though an ardent Jan Sanghite, supported Dhram  Pal. In  the 1969 mid-term poll Tribeni Sahai won as  a  Congress candidate,  this  time  with the help of  Dharam  Pal.   The Judge,  Harish Chandra Singh. who as a Bhartiya  Kranti  Dal candidate  had  the support of Dr. Kohli,  Banney  Khan  and others lost the election. Coming  nearer  the  date  of  occurrence,  the  Town   Area Committee  elections were to be held in Dataganj on May  30, 1971.   Dharam  Pal,  a  Congress  (R)  candidate  for   the Chairmanship  of  the Committee had the support  of  Tribeni Sahai  while Balak Ram, now under death sentence, who was  a Congress  (0) candidate for Chairmanship had the support  of other parties.  Dr. Kohli and Banney Khan were partisans  of Balak Ram.  Banney Khan was himself a Congress (0) candidate for  the membership of the Committee.  The  Congress  (R)and Congress  (0)  had  each fielded 10 candidates  for  the  10 Committee       seats.       Nathoo,      aaprently       an independent,candidate, was in fact a dummy candidate put  up by  Congress  (0)  in  order to  provide  for  the  possible disloyalty of its official candidate.  Nathoo is Balak Ram’s brother-in-law. (1)  [1974] 4 S.C.C. 201. 763 Of Banney Khan it is said that since 1937, candidates put up by  him for Chirmanship of the Town Area Committee  had  won consistently,  no  matter which party they  belonged  to  or which party the rival candidates belonged to- In 1948 Banney Khan  had supported ’Tribeni Sahai for Chairmanship and  the latter  won.  Banney Khan. was himself the Vice-Chairman  of the  Committee since 1937.  Dharam Pal who was the  Chairman of  the Committee since 1953 had the unwavering  support  of Banney  Khan through all these years.  They fell out on  the eve of the 1971 elections. Political differences evidently polluted the social life  of the Dataganj citizens.  They carried those differences  into their private lives and their social relationship was marked by  a series of quarrels and court cases.  A civil suit  was filed  in  1965 by Banney Khan and his brother  Pearey  Mian against Tribeni Sahai and others for a permanent  injunction restraining  them  from realising Tehbazari  dues  from  the market.   This  six  year old suit  was,  not  surprisingly, pending on the date of the occurrence.  A criminal case  was

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then filed against Banney Khan and Pearey Mian under section 307,  Penal  Code, for a murderous assault  on  one  Suleman whose brother Mohammad Sultan.  Vakil was an active follower of  Tribeni Sahai.  The case against, Banney Khan was  later withdrawn and Pearey Mian was acquitted.  In 1967-68 Tribeni Sahai,  had  filed a case under section 120-B,  Penal  Code, charging  Dharam Pad, Pearey Main and others for  conspiracy to murder him.  In those days Dharam Pal belonged to a rival party.,  In  1970  Tribeni Sahai had filed  a  similar  case against Pearey Main and others accusing them of a conspiracy to  murder  him.  On August 3, 1970 Pearey Mian  had  lodged report against Tribeni Sahai and his bodyguard Radhey  under section 394, Penal Code.  It is obvious that a point to gain on  the  political plane was enough excuse  for  all,  these gentlemen,  to involve one another into grave  charges  like murder  and dacoity.  Dharam Pal who was strongly  supported by Tribeni Sahai in the 1971 elections for the  Chairmanship of the Town Area Committee has admitted in his evidence that in earlier days Tribeni Sahai used to harass him with  false cases.   In  a trial against two.persons called  Tullan  and Beni  under section 394 of the Penal Code, Tharain  Pal  had deposed as a defence witness that Tribeni Sahai had  falsely implicated those persons as they were his supporters.  Beni, in  fact,  was in Dharam Pal’s employment as  a  driver,  It seems that the two accused were initially convicted but were acquitted in appeal.  Most of the cases described above seem to  have  been politically motivated.  The  fact  that  such serious  charges lacked a true foundation was irrelevant  to the way of life which these gentlemen bad adopted. It  is not suprising, though it is to be regretted, that  in the din of these political and personal feuds the  witnesses had  a heavy commitment to factitious loyalties.   When  key witnesses  deny  the  obvious, pretend  ignorance  of  facts within  their special knowledge and give free play to  their imagination on crucial matters, pursuit of truth, 764 becomes a wild goose chase.  An the befogged trial Judge has then to discharge the unenviable duty of seeing and  hearing such witnesses. Take  Jhilmili  and Ram Prakash.  The fire-arm  injuries  on their  person  establish  their presence  at  the  scene  of offence but to be present is only to have an opportunity  to witness.   Presence does not ,ensure truthfulness nor is  it any  insurance against the common human failing  to  involve the  innocent  along  with  the  guilty.   The  presence  of Jhilmili and Ram, Prakash may indeed discredit them if  they were  components  of the procession  which  marched  towards Tribeni   Sahai’s  house.   The  question   which   requires examination  is whether, as contended by the  defence,  they were members of the procession and were injured accidentally when the processionists opened fire or whether, as contended by  the  prosecution, they received injuries  when  as  dis- interested bystanders they rushed to protect Tribeni Sahai. It is surprising that the First Information Report lodged by Rajendra  Kumar  Misra  does not refer to  the  presence  of either  Jhilmili or Ram Prakash.  Rajendra Kumar  claims  to have  seen  the  incident  from a close  angle  and  he  has mentioned  in the Report the names of persons who  had  seen the  occurrence  Jhilmili and Ram  Prakash  were  admittedly injured in the firing incident and witnesses have  uniformly stated  that  there  was  enough  light  at  the  scene   of occurrence.   Jhilmili  had received a through  and  through bullet injury on the thigh while Ram Prakash had received  a firearm  burn  on his abdomen.  The question is not  of  the routine  variety and one cannot brush aside the  failure  of

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the first informant to refer to the two witnesses by  saying that  he may not have noticed their presence. The  point  of the  matter  is whether, having seen them, he  dropped  them deliberately as they were on the side of the accused. Rajendra Kumar Misra is himself a relative of Tribeni Sahai, being the brother-in-law of Radhey Shyam Sharma, the brother of Tribeni Sabai.  In the F. I. R. Rajendra Kumar  mentioned that  Loki,  Ganga Ram and Aryendra had seen  the  incident. Ganga  Ram was a Bataidar of Tribeni Sahai and sometimes  he used  to live with Tribeni Sahai. Arvendra is  the  sister’s son  of  Dharam  Pal  who as  a  Congress  (R)candidate  was contesting   the  election  for  the  Chairmanship  of   the Committee with the active support of Tribeni Sahai.  Neither Ganga  Ram nor Loki was examined by the prosecution and  the learned public prosecutor stated that Loki had been won over by  the defence.  Such a bald assertion, unsupported by  any data,  is insufficient to absolve the prosecution  from  its duty  to examine wit nesses whose evidence is necessary  for upholding its case. A  large  number  of persons had gathered at  the  scene  of offence  and  the Investigating  Officer,  Yogendra  Sharma, himself arrived within a short time.  Arrangements were made to take Tribeni Sahai 765 and  Radhey to Budaun in two cars but no  notice  whatsoever was taken’ of the presence of Jhilmili and Ram Prakash or of the  injuries  received by them though they were  crying  in pain.   Yogendra  Sharma says that he asked a  constable  to take them to the police station with instructions that  they should be taken to the hospital thereafter.  As a matter  of normal routine, they should have been taken to Budaun  along with  Tribeni Sahai and Radhey especially when the two  cars of Dharam Pal and Rajendra Kumar were so readily  available. If  that was thought unnecessary steps should have  been  at least taken to send them to the local dispensary.   Instead, they  were  first sent to the police station,  then  to  the dispensary,  back  to the police Station and  ultimately  to Budaun hospital. During  the  trial in the Sessions Court,  Jhilmili’s  sons, Chotey and Chironji, were sitting in the group interested in the  accused.   Besides, Jhilmili’s son-in-law Sia  Ram  and another  relative Ved Prakash were contesting  the  election for  the  membership  of  the  Committee  as  candidates  of Congress  (0).  Jhilmili stated that he did not  know  which party  Sia  Ram and Ved Prakash belonged to.   In  fact,  he pretended  ignorance  of  any  such  political  parties   as Congress (R) and Congress (0).  He had voted for Sia Ram and Ved Prakash but said that he did not know what symbols  were allotted to them. Jhilmili  is  a secretive witness for, though  his  son  got employment  in the Provincial Armed Constabulary  after  the incident, he denied all knowledge about it and added that he was  not even aware that the son was posted at  Kanpur.   He also  denied  that he had opened a bank account  two  months after the incident with an initial deposit of Rs. 1000/- and stated  falsely  that the account was opened  prior  to  the incident  with a deposit of Rs. 600.  He stated that he  had deposited  a  sum of Rs. 50 only in that account  after  the incident but, a true copy of his bank account shows that  he had deposited a sum of Rs. 500 in November, 1971.   Jhilmili was asked whether he knew that Dr. Kohli was associated with the Jan Sangh and his answer was that since he had not heard the name ’Jan Sangh’, he could not speak of the association. The  manner  in  which  Jhilmili  claims  to  have  received injuries is difficult to accept.  He says that he rushed  to

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the  rescue  of Tribeni Sahai after Balak Ram  had  fired  a shot.  The procession consisted at least of six persons  and an  open  exhortation is alleged to have been given  by  Dr. Kohli  and  others that Balak Ram should fire.   It  is  im- possible  that  Jhilmili could have jumped into  the  firing range. A  large  part  of the criticism  in  regard  to  Jhilmili’s evidence holds good in regard to Ram Prakash also.   Tribeni Sabai  had filed a prosecution against Ram Prakash’s  father and others for conspiracy to murder him.  Tribeni Sahai  had also instituted a case under section 107, Criminal Procedure Code, against Ram Prakash’s father and others.  Ram  Prakash surprisingly  denied  knowledge  as  to  whether  the  first mentioned case was pending or not.  He admitted that he  was standing  at the scene of offence for quite some time  after the- 766 incident  and  that he did not tell any  one  including  his mother  that  his injuries should be attended  to.   He  saw Yogendra Sharma arrive but did not complain to him about the injury  which he had received.  Ram Prakash, like  Jhilmili, made  a fanciful assertion that Dr. Kohli, Banney  Khan  and Pearey Man shouted together in one voice asking Balak Ram to open  fire.  Realising the infirmity of that assertion,  Ram Prakash  made  a  funny embellishment  :  "Banney  Khan  bid initially  started asking Balak ’.Ram earlier  than  others. Banney  Khan accused had shouted the word Balak  Ram  before other  accused  started  saying.  Then  the  sentences  were completed  by all of them.  All the three accused  had  said the same thing i.e. ’Balak Ram Maro Goli"’. The  learned  Sessions  Judge was right for  some  of  these reasons  in  holding that the evidence of Jhilmili  and  Ram Prakash   could   not  be   accepted   without   independent corroboration.   The High Court treated them as  independent witnesses and held that they had corroborated each other. In  fact. the High Court went a step further and  held  that these two witnesses corroborated Rajendra Kumar Misra  also. Rajendra  ’Kumaz  is the brother-in-law of  Tribeni  Sahai’s brother  Radhey  Shyam Sharma who at the relevant  time  was stationed at Lucknow .as Deputy Inspector General of  Police and  as  a Member of the vigilance  Commission.   The  trial court  observed  rightly  that the  witness  ,could  not  be disbelieved merely because he was related to Tribeni  Sahai. But  it gave various reasons for not accepting his  evidence at its face value. In the first place, the omission to make a reference to  the presence  ,of Jhilmili and Ram Prakash in the F. 1.  R.  was not  an  oversight  on  the part  of  Rajendra  Kumar.   The omission  was  deliberate  because it  was  not  then  known whether  they would support the prosecution case.   Jhilmili has  stated in his evidence that he had seen Rajendra  Kumar coming  from the western side at the time of  the  incident. Apart  from  this, the conduct of RaJendra Kumar  is  highly unnatural.  After the processionists dispersed and ran  away he did not even try ’to find out what injuries Tribeni Sahai and  Radhey had received and whether they  required  medical attention.   He claims to have seen The whole incident  but. on his own showing, as a mute, silent spectator He raised no alarm.  he  did not go near any of the injured  persons  and made a straight dash for the police station.  There are also serious  discrepancies  as regards the spot  from  which  he claims  to have seen the incident.  He says that he saw  one incident from three or four paces east of the  north-western corner of- Aryendra’s house.  The particular spot is said to be about 1 8 paces from the scene of occurrence.   According

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to  Jhilmili,  Ranjendra Kumar had come only as far  as  the house  of  one  Dr. Suresh.  Paragraph 5  of  the  Notes  of Inspection  made by the learned Sessions Judge shows that  a person standing in front of Dr. Suresh’s house could not re- cognise persons standing at the scene of occurrence.  At the time  ,the incident started, Rajendra Kumar claims  to  have been sitting at 767 his Baithak.  But neither in the F. 1. R. nor in his  police statement  did be mention where exactly he was at  the  time when the commotion started.  In the F. 1. R. he alleged that Pearey  Mian,  Banney Khan and Kailash were also  among  the assailants but he admitted in the Sessions Court that  these persons  had not participated in the actual assault.  It  is significant that the witness had not mentioned Banney Khan’s name  before the Investigating Officer at all in  connection with  this incident and was unable to give any  satisfactory explanation of this omission. We do not propose to dissect the question whether the F.  1. R.  was lodged immediately as claimed by Rajendra  Kumar  or whether  it was lodged on the next day as contended  by  the defence.  The better view would, however, seem to be that it was  lodged  soon after the incident though perhaps  not  as immediately  after  the incident as Rajendra  Kumar  claims. The  Sessions Judge has expressed his finding  with  welcome restraint in saying that the case of the defence that the F. I. R. was not filed at the time at which it purports to have been filed cannot be said to be "wholly unfounded." That  leaves for consideration the evidence of Aryendra  who also claims to be an eye-witness.  He is the sister’s son of Dharam   Pal  who  was  contesting  the  election  for   the Chairmanship  of the Committee.  Dharam Pal has admitted  in his evidence that he had brought up Aryendra and that he was living with him for about 17 or 18 years after the death  of his father- Aryendra is said to have shifted to the house of his father-in-law because his mother-in-law was all alone in the  house.   That house occupies a vantage  position  being quite near the scene of occurrence In  the first place, there is no reliable evidence  to  show that  Aryendra was living in the house of his  father-in-law since  March, 1970 as alleged by him.  After leaving  Dharam Pal’s house he admittedly shifted to the house of one  Umrao Lal  Halwai but he says that he lived in the house  of  that man  for  two or three months only.   The  learned  Sessions Judge has referred to the voters’ lists and other  documents to  show that it was doubtful whether Aryendra had left  the Halwai’s house and was living in the house of his father-in- law at the material time. Aryendra claims to have been sleeping on the eastern roof of his father-in-law’s house.  It was common ground that if  he were  sleeping  on  the  western  side,  which  was  a  more convenient  place, he could not have seen the incident.   He explained this by saying that there used to be a dog on  the western  roof  to  keep watch and the eastern  roof  had  no regular staircase making it difficult for the dog to get  on there.   When  his  statement  was  recorded  by  The   Sub- Divisional  Magistrate  under section 164  of  the  Criminal Procedure  Code  Arvendra stated that Pearey  Mian.  ’Banney Khan. Dr. Kohli, Balak Ram,  Kailash and Nathoo were  "also" in theHis  case then was that there were others also  in the procession.In fact.he had stated then that 8 or  10 persons had stood near thedoor of 768 the  house of one Uma Shanker, a statement which he  falsely denied  to have made.  It is not without relevance  that  as

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many  as  1  1  others were arrested on  the  night  of  the incident  for conspiracy to murder Tribeni Sahai.   Finally, Aryendra  has  also like the other eye-witnesses  given  the incredible  version that Banney Khan, Kohli and Pearey  Mian exhorted Balak Ram in one voice to open fire. It cannot be overlooked that the statements of Jhilmili, Ram Prakash  and  Aryendra  were  recorded  under  section  164, Criminal  Procedure  Code,  in June  1971,  soon  after  the incident.   The Investigating Officer says that he  got  the statements  recorded  by way of precaution.  That  could  be true  and  it  would  be  wrong  to  find  fault  with   the Investigating  Officer merely because he got the  statements of these witnesses recorded under section 164.  Nor can  the evidence of a witness be discarded for the mere reason  that his statement was recorded under section 164.  But the  High Court  overlooked  that  the  evidence  of  witnesses  whose statements are recorded under section 164 must be approached with  caution.  Such witnesses feel tied to  their  previous statements given on oath and have but a theoretical  freedom to  depart  from  the earlier version.   A  prosecution  for perjury  could  be  the price of that freedom.   It  is,  of course,  open  to  the Court to accept  the  evidence  of  a witness whose statement was recorded under section 164,  but the  salient rule of caution must always be borne  in  mind. That  is  all the more necessary when almost  all  the  eye. witnesses  are  subjected to this  tying-up  process.   Even Aryendra, the sister’s son of Dharam Pal, was not thought to be above suspicion. We   have  indicated  broadly  some  of  the  more   serious infirmities  in the evidence of the eye-witnesses  in  order to- show that the Sessions Court was justified in taking the view  that  it was unsafe to act on their  evidence  without corroboration.   Ignoring the impact of  these  infirmities, the  High Court erroneously treated the witnesses  as  inde- pendent  and  held that they had corroborated  one  another. None  of  the four eye-witnesses was true enough  to  afford corroboration  to the evidence of others.  Corroboration  in such cases must be forthcoming from an independent source. The  prosecution  relied very strongly on  the  three  dying declarations  alleged  to have been made by  Tribeni  Sahai. The first of these was made to Dharam Pal, the second to the Investigating Officer Yogendra Sharma and the third was made in the Budaun hospital before the Sub-Divisional Magistrate. It  is  necessary  to  examine  closely  the   circumstances attendant upon these dying declarations. Not  much  reliance was placed before us on  the  first  two dying  declarations and rightly so.  In regard to  the  oral dying declaration alleged to have been made by Tribeni Sabai to  Dharam  Pal  immediately  after  the  shooting  outrage, neither Jhilmili nor Ram Prakash who were admittedly present at the scene of occurrence all through say 769 anything about that dying declaration.  Even Aryendra who is Dhliaram  Pat’s sister’s son did not say that Tribeni  Sahai made  a  dying  declaration to  Dharam  Pal.   Surprisingly, though the investigation was otherwise prompt, the statement of  Dharam Pal was recorded by the investigating Officer  on June 2, 1971 which was six days after the incident had taken place. The second dying declaration is alleged to have been made to the  Investigating  Officer.   Investigating  Officers   are keenly  interested  in  the fruition of  their  efforts  and though  we  do not suggest that any assumption can  be  made against  their  veracity,  it is not  prudent  to  base  the conviction  on a dying declaration made to an  Investigating

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Officer.  Yogendra Sharma says that while Tribeni Sahai  was lying in, a car at the scene of offence he made a  statement implicating the accused.  Yogendra.  Sharma produced a  true copy  of an entry in his case diary stating that even as  he was  still in the car, he recorded the dying declaration  in the  case  diary  which he was carrying  with  him.   It  is difficult  to  appreciate why, if there was time  enough  to reduce  the dying declaration into writing, Yogendra  Sharma did  not  obtain Tribeni Sahai’s signature or at  least  the signatures  of  any of the large number of persons  who  had surrounded the car. Rule 115 of the U.P. Police  Regulations expressly  enjoins  the Investigating Officer  to  record  a dying  declaration,  if  at  all, in  the  presence  of  two respectable  witnesses and after obtaining the signature  or mark  of  the  declarant at the  foot  of  the  declaration. Besides, if the Investigating Officer was in such haste that he  did  not  even think it proper to wait  ,it  the  police station  until the various columns on the first page of  the F.I.R.  were  duly  filled in, it  is  rather  difficult  to believe that seized by such a pressing sense of  emergency,, he would take the case diary with him on the off chance that a dying declaration may be in the offing. The  dying declaration (Ex-Ka-47) made by Tribeni  Sahai  at the  Budaun  hospital  was recorded  by  the  Sub-Divisional Magistrate  Mr.  Sada  Ram at  11.50  p.m.  Learned  counsel appearing  for  the  appellants submitted  that  this  dying declaration   is  a  fabrication  and  must   therefore   be discarded.   Were   not  inclined  to  go  that   far.   The circumstances  surrounding  the  dying  declaration,  though uninspiring,are  not strong enough to justify the view  that officers  as  high in the hierarchy  as  the  Sub-Divisional Magistrate,  the Civil Surgeon And  the,District  Magistrate hatched  a  conspiracy  to  bring  a  false  document   into existence. The Civil services have no platform to controvert allegations, howsoever grave and unfounded. It is therefore, necessary that charges calculated to impair their career and character  ought not to be accepted except on  the  clearest proof.   We  are  not  prepared  to  hold  that  the   dying declaration is a fabrication. All  the  same, one must face the question whether,  in  the circumstances  of  the  case,  it is  safe  to  act  on  the uncorroborated  dying  declaration of  Tribeni  Sahai..  The evidence of Dr. R. C. Bansal who was the Medical Officer  of the District Hospital, Budaun, shows 3-192 Sup.Cl/75 770 that  Tribeni  Sahai  was in a critical  condition  when  he reached  the  hospital.  Before the  dying  declaration  was recorded,  an attempt was made to give him saline  but  even after  making incisions on the hands and a leg, the  attempt did  not succeed.  Dr. Bansal has stated that Tribeni  Sahai was  in  "severe pain", that he was under a  "great  shock", that there was "profuse bleeding" from the injury, that  his respiration  was  poor,  that  his  pulse  was  "feeble  and thready"  and that the "blood pressure was not  recordable". Dr.  Bansal explained that by "shock" he meant "a  state  of profound  depression  of  the vital processes  of  the  body resulting  from injury." It taxes one’* ordinary  experience of   human  affairs  to  accept  that  Tribeni  Sahai   thus tormented,  was  in a fit mental and physical  condition  to make a volitional statement after he had reached the  Budaun hospital. Quite  apart from this consideration, the dying  declaration can  have hardly any evidential value because Tribeni  Sahai was  in  the midst of friends and admirers right  since  the

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time  of  the  incident  until  the  dying  declaration  was recorded.  Dharam Pal was in his constant company and it  is not  unlikely that names of political opponents  like  Balak Ram, Dr. Kohli and Banney Khan were freely bandid about. The dying declaration could then be-naturally influenced by  the opinion and inferences of close friends like Dharam Pal. If  Tribeni  Sahai  were  to go on record  as  a  person  of unquestioned rectitude it might, perhaps, have been possible to approach the dying declaration a little differently.  But the  long  lists  of cases which he had  filed  against  the political  opponents  shows that he had  no  compunction  in pointing an accusing finger at innocent persons. Dharam  Pal himself  was  a  victim of such  machinations  and  even  he conceded  that  Tribeni Sahai used to harass him  by  making false charges when he was in the opposite camp. Therefore, we find it impossible to accept the conclusion of the High  Court that : "All the three dying declarations  of Sri   Tribeni  Sahai  provide  full  corroboration  to   the testimony of the two injured eyewitnesses and Aryendra  that it  was Balak Ram, who was responsible for the fatal  injury to  Sri  Tribeni Sahai and that he fired instigated  by  Dr. Kohli, Pearey Mian and Banney Khan. The  aforesaid discussion of the various items  of  evidence must at least yield the result that the conclusion to  which the learned Sessions Judge came was a reasonable  conclusion to  come  to.  It cannot be denied that  two  views  of  the evidence   are  reasonably  possible   in  regard   to   the participation of Nathoo, Dr. Kohli and Banney Khan. the High Court,  therefore,  ought not to have  interfered  with  the judgment of the Sessions Court in their favour. A revolver was recovered from the house  of Dr. Kohli at the time  of his arrest on the night of the incident and  it  is said  that the revolver emitted a foul smell.  If  anything, the evidence, of the ballistic expert Shyam Narain (P.W. 14) shows  that  none of the five  empties  recovered  from  the scene of offence could have been fired 771 from  Dr.  Kohli’s revolver, The expert was also  unable  to give  a definite opinion that the bullet, Ex. 25, which  was recovered  from a drain near the scene of offence was  fired from Dr. Kohlis revolver. In  regard  to  Nathoo,  he  is  not  named  in  the   dying declaration recorded at the Budaun hospital.  What is  more, his  name  which was first written towards the end  of  that dying  declaration  was subsequently scored off.   Mr.  Sada Ram, the Sub-Divisional Magistrate, says that he scored  off Nathoo’s  name  from the dying declaration  because  Tribeni Sahai  did not say anything when Nathoo’s name was read  out that  was  fair of Mr. Sada Ram but when Nathoo  scores  one more point. The  old  Banney Khan is an old hand at  politics.   He  was Vice-Chairman of the Town Area Committee since 1937 and even Dharam  Pal has admitted that Banney Khan was a king  maker. He was 79 years old on the date of the incident and the only evidence  against him consists of that artificial  assertion that  he, Dr. Kohli and Pearey Mian exhorted Balak Ram  with one  ’Voice  to  shoot  at  Tribeni  Sahai.   Banney  Khan’s implication  could  reasonably  be traced  to  the  personal enmity between him and Tribeni Sahai. In the result the order of conviction and sentence passed by the High Court against Nathoo, Dr. R. P. Kohli and  Mohammad Sayeed Khan alias Banney Khan is set aside and their appeals are  allowed.   Banney  Khan  is on bail  and  he  need  not surrender  to  his  bail.  Nathoo and  Dr.  Kohli  shall  be released forthwith.

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That  leaves us for consideration the appeal filed by  Balak Ram who has been found guilty by the Sessions Court as  well as  the High Court.  Mr. Frank Anthony made  an  impassioned plea  for  his  acquittal but we are unable  to  accept  the submission of the learned counsel. It  is  urged  that  Loki and Ganga  Ram  whose  names  were mentioned  in the F.I.R. were not examined and therefore  an adverse  inference should be drawn against the  prosecution; that  the  relevant  columns  in  the  Inquest  Report  were deliberately left blank so as, to facilitate a  manipulation of  evidence, that the F.I.R. was ante-dated; that the  site plan  was deliberately drawn in a vague and general  manner; that there was no immediate motive for the offence and  that the  High Court had failed to consider the evidence  of  the defence  witnesses at all which it was its duty to  consider in a reference under section 374, Criminal Procedure Code. The more important of these points stand answered by what we have already said while discussing the appeals of the  other accused.   But,  it is necessary to add that  in  the  first place,  the  other accused had the benefit of  an  order  of acquittal  passed  in their favour by the, trial  court  and secondly we have only endeavoured to indicate that since the view taken by the trial court was a reasonable view to take, 772 the  High  Court  ought  not to  have  interfered  with  the judgment of acquittal. In  regard to Balak Ram, there is a concurrent finding  that the shot fired by him caused the death of Radhey and we  see no  reason  for taking a different view.   The  evidence  in regard  to the part played by him is natural and  consistent and is corroborated by the opinion of the Ballistic  Expert. Such   corroboration  was  lacking  Is  against   others.The evidence of the Ballistic Expert shows that the bullet  (Ex. 27)  which  was extracted from Radhey’s body was fired  from the pistol     (Ex. 5) belonging to Balak Ram.  Mr.  Anthony made  a severe attack on the evidence of the expert  and  in order to show infirmities in that evidence he read out to us various  passages from "The Identification of  Firearms  and Forensic   Ballistics"  by  Major  Gerald  Burrard;  J.   S. Hatcher’s   "Text   B   ok   of   Firearms    Investigation, Identification and Evidence" (5th.1946)" and Modi’s "Medical Jurisprudence  and  Toxicology." We  have  considered  these submissions but are unable to see a reason strong enough  to justify  a reversal of the concurrent view taken by the  two courts.  The normal rule that this Court does not reappraise evidence in such cases must apply. Stated briefly, Mr. Anthony’s contention is that the  bullet (Ex. 25) which was recovered from the scene of offence  must have been the one which after hitting Tribeni Sahai made  an exit wound not since that bullet, according to the ballistic expert,  could not have been fired from Balak  Ram’s  pistol (Ex.  5), he cannot be held guilty for causing the death  of Tribeni  Sahai.  Mr. Anthony says that the evidence  of  the eye  witnesses  stands  falsified by  the  evidence  of  the expert.  The difficulty in accepting this contention is that there  is no warrant for saying that the bullet Ex. 25  must be the one which passed through Tribeni Sahai’s body. Mr.  Anthony  spent considerable time in  showing  that  the striations  on the bullet (Ex. 27) which was extracted  from Radhey’s body are of a different pattern from the striations on  the  test bullets fired from Balak  Ram’s  pistol.   The evidence  of the expert has been closely considered  by  the High  Court and we consider their finding on this aspect  as open to no exception. Balak Ram examined two witnesses, Shiv Govind Singh  (D.W.7)

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and Udainarain Singh (D.W. 8) to establish his plea of alibi but  that evidence Was rightly rejected by the trial  court. It  is  in the least degree likely that Balak  Ram  who  was contesting  the election for Chairmanship of  the  Committee would  be  away from the hubbub of politics on  the  eve  of elections.   All  the  same, the High Court  ought  to  have considered  that evidence for what it was worth.  In  a  re- forence  for confirmation of the death sentence  under  sec. 374, Criminal Procedure  Code,  the High Court must  examine the entire evidence for itself,    independently   of    the Session, Court. (See Bhupendra Singh v. The     State     of Punjab,(1), and Jamman and Ors. v. The (1) [1968] 3 S.C.R. 404. 773 State  of Punjab(1).  Fortunately, the failure of  the  High Court  to  examine  the  defence  evidence  has  led  to  no miscarriage of justice. Balak  Ram’s  conviction  must, therefore,  stand.   On  the question  of sentence, there is no reason for  interference. Balak  Ram  was  carrying a pistol and he  fired  from  that pistol without any provocation either from Tribeni Sahai  or from  Radhey.   Neither of them was armed. not even  with  a walking stick, and all that Tribeni Sahai did was to ask the processionists  to  desist  from  shouting  vulgar  slogans. Politics  may  or may not be a clean game but no  court  can suffer  with  equanimity such flagrant defiance  of  law  by members  of  political  parties, whatever  their  colour  or creed.  They must know that it will not pay to carry pistols in processions for being used as weapons of offence  against political  rivals.   Accordingly, we confirm  the  order  of conviction and the various sentences including the  sentence of death imposed on Balak Ram and dismiss his appeal. V. M. K.                          Appeal dismissed. (1) A.I.R. 1957 S.C. 469. 774