http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8  

PETITIONER: STATE OF U.P.

       Vs.

RESPONDENT: ABDUL & ORS.

DATE OF JUDGMENT:       05/05/1997

BENCH: M.K. MUKHERJEE, S.P. KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:                       J U D E M E N T S.P. KURDUKAR, J.      The village  Tilokpur consists  of several  hamlets, of which Kurthara  is one  where Adbul  Ali son of Maikoo (A-1) was residing  but lateron  he shifted  to village  Tilokpur. Mustaffa (A-2)  was also  residing at  village Kurthara  but thereafter shifted  to village  Tilokpur. Vikram  (A-3)  and Ramanuj (A-4)  are the  residents of  village Kurthara.  All these four  accused persons  happened to be close friends of each other,  of whom,  Abdul Ali  (A-1) was  the Pradhan  of Tilokpur Gram  Panchayat for  about fifteen  years until  he lost the  election to  the post  of Pradhan  to Shanker  Lal (since deceased).  At the  time of incident which took place on December  24, 1983,  undisputedly  Shanker  Lal  was  the Pradhan who  belonged to the opposite group. The accused and in particular Adbul Ali (A-1) did not cherish the success of Shanker Lal  as the Pradhan of village Tilokpur. The victory of  Shanker  Lal  as  the  Pradhan  was  celebrated  by  his supporters in  the village  which added an additional insult to the  ego of  A-1. According  to  the  prosecution,  these factors lead  to the strained and inimical relations between the two  groups, one  headed by A-1 and the other by Shanker Lal. 2.   It is  alleged by  the prosecution that a year prior to the  incident  in  question,  A-1  and  his  associates  has attempted to  commit the  murder  of  Shanker  Lal,  but  he survived and  at the  material time  a criminal  case  under Section 307  of the  Indian Penal  Code was  pending against them. A  case under  Section 107  of the  Criminal Procedure Code was also pending against A-1. 3.   According to the prosecution, a day before the incident in question,  Shanker Lal  received a notice relating to the ‘No Confidence  Motion’ being  moved  against  him.  It  was alleged that  A-1 and  his associates  were instrumental  in moving this  ‘No Confidence Motion’. Shankar Lal, therefore, on December  24, 1983  i.e. the  date of  incident left  his house at  about 7.30  a.m. along with his brother Mangal (PW 1) and  uncle Chhote  Lal (PW  2) and  reached the  house of Dwarika Prasad  (DW 1)  to discuss  about the ‘No Confidence Motion’. In  the said  meeting, it  was decided to challenge

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8  

the  validity  of  the  ‘No  Confidence  Motion’  before  an appropriate forum  and to  obtain a  stay  order;  for  that purpose, they  were to  go to Lucknow. Dwarika Prasad (DW 1) told Shanker Lal and his associates to go ahead and he would join after  a short  time. Accordingly,  Shanker Lal, Mangal and Chhote  Lal left  the house  of Dwarika  Prasad and when they reached  near the  house of  Dhanendra Jain,  A-1 armed with his  double barrel  gun, A-2  and A-3  armed with katta (country made  pistol) and  A-4 armed  with  banka  suddenly appeared on  the scene of offence and encircled Shanker Lal. A-4 used  filthy language  against  Shanker  Lal.  A-1  then suddenly fired  at Shanker  Lal. A-4  assaulted Shanker with banka whereas  A-2 and  A-3 fired  from their katta (country made pistol).  Shanker Lal on receiving a gun shot and other injuries fell  down and  died at  the  spot.  This  incident happened at  about 8.45 a.m.. The sound of fire arms and the cries  raised   by  Mangal  and  Chhote  Lal  attracted  the attention of  a couple  of  persons  including  Mahadin  and Mahabir. All the accused thereafter fled away. 4.   Mangal (PW  1) dictated  the report  of the incident to his uncle  Chhote Lal (PW 2) and was signed by both of them. They carried  the report  to  the  police  station  Masauli, Distt. Barabanki  and handed  it over to HC Sukhanta Ram (PW 3) who prepared the FIR (Ex.Ka-2) and registered the case at about 1.00  p.m. Mohan Lal Pandey (PW 6), the SHO along with police force   reached  the place  of incident for necessary investigation.  After   drawing  up  an  inquest  panchanama (Ex.Ka-5) on  the dead  body, it  was sent  for post  mortem examination through  constable Jagdish  Pandey  and  village Chowkidar Rahmat  Ali. Dr. Ram Mohan (PW 4) held the autopsy on the  dead body  on 25th  December, 1983. Mohan Lal Pandey (PW 6)  then prepared  several panchanamas  and recorded the statements  of  various  witnesses.  During  the  course  of investigation, Mohan Lal Pandey reliably learnt that A-1 had deposited his  fire arm  on December  24, 1983 at about 9.30 a.m. in  the shop  of Waheb  Ali. The said weapon came to be seized under seizure panchanama on 6th January, 1984. During the course  of investigation,  the accused person came to be arrested. After  completing the  investigation, all the four accused were  put up  for trial  for an  offence  punishable under  Sections   302/34  of   the  Indian  Penal  Code  for committing the murder of Shanker Lal. 5. The  accused denied  the allegation levelled against them and pleaded  that they  have been  falsely implicated in the present crime  out of  enmity. They are innocent and they be acquitted. 6.   The prosecution  in support  of  its  case  principally relied upon  the evidence  of  two  eye  witnesses,  namely, Mangal (PW  1) and  Chhote Lal  (PW 2)  in addition  to  the evidence of  Dr. Ram  Mohan, M.O. (PW 4) and panch witnesses and various  panchanamas. The  accused in  support of  their defence examined Dwarika Prasad (DW 1). 7.   The IVth  Addl. Session  Judge, Barabanki, on appraisal of oral  and documentary  evidence on record by his judgment and order  dated 31st  August, 1988  convicted all  the four accused persons  under Sections  302/34 of  the Indian Penal Code for  committing the  murder of  Shanker Lal.  The trial judge awarded  death sentence  to Abdul Ali (A-1) and made a reference under  Section 366  Cr.P.C. to  the Allahabad High Court, Bench at Lucknow. A-2 to A-4 were sentenced to suffer imprisonment for life. The reference made by the trial court came to be numbered being Capital Sentence Reference No.3 of 1988. In  the meantime,  all the  four accused persons filed Criminal Appeal  to the  High Court challenging the legality and correctness  of the judgment and order of conviction and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8  

sentence passed  against them.  All these  criminal  appeals along with  aforesaid reference were here together. The High Court, on  reappraisal of  evidence and  other materials  on record vide  its judgement  dated Ist December, 1988 allowed all the    three  appeals  filed  by  the  accused  persons, rejected the reference and acquitted each one of them of the charges levelled  against him. It is this judgment and order of acquittal passed by the High Court  which is sought to be challenged by  the  State of U.P. in these criminal appeals. Since these criminal appeals arise out of a common judgment, they are being disposed of by this judgment. 8.   We heard  the  learned  counsel  for  the  parties  and perused the  oral evidence  and other material on record. We have also gone through the judgments of the courts below and in our  considered view  the impugned  judgment of  the High Court is not only erroneous on interpretation of Section 174 Cr.P.C. but  it suffers  from serious  infirmity as  regards appreciation of evidence on record in proper perspective. We are conscious  that we  are dealing  with  the  judgment  of acquittal passed by the High Court. Unless, we find that the impugned judgment  is based  on  misconception  of  law  and erroneous appreciation  of evidence  on record,  this  Court would not  interfere with the judgment of acquittal. We may, therefore, point  out how  the findings recorded by the High Court are unsustainable. 9.   While disbelieving  the correctness  and reliability of the FIR,  the High  Court heavily  placed reliance  upon the contents of  the inquest panchanama (Panchayatnama) prepared under  Section  174  of  the  Criminal  Procedure  Code  and contrasted with the recitals in the FIR. The High Court held that in the inquest panchanama, it was recorded that Shanker Lal was  shot dead  by fire  arm but  it did  not  make  any reference to the fact that Shanker Lal was also assaulted by banks. The  investigating officer  has failed  to record any injury on  the person  of Shanker  Lal having been caused by bank. The High Court then observed as under:-      "The primary purpose of holding and      inquest is  to ascertain  the cause      of death and to find out whether it      is    homicidal,     suicidal    or      accidental.  The   law   therefore,      requires a  Police Officer  to make      an  investigation   and  prepare  a      report describing  the  wounds  and      indicating  by   what  weapon  such      wounds appear  to have been caused.      The  inquest   report,   though   a      document  of   limited  scope   and      nature,   can    nevertheless    be      utilised under  section 145  of the      Evidence Act.      As  pointed  out  earlier,  in  the      instant case, the inquest report is      silent as  to the use of banka. Why      has  the  use  of  banka  not  been      mentioned in the "Panchayatnama" is      a question  which immediately crops      up for consideration in view of the      recitals in  the F.I.R.  mentioning      in  unambiguous   words  that   the      deceased  was   also  assaulted  by      banka which was wielded by Ramanuj.      What is  the answer  of  the  above      question is the next question?"      The High  Court  then  went  on  to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8  

    observe:-      "Once it  has come to the knowledge      of the  investigating officer  that      the   deceased    had   also   been      assaulted  by   banka   which   was      allegedly  used   by  one   of  the      appellants, there  was no  occasion      for him  not to  mention the use of      banka in  the inquest report unless      it can  be attributed  to him  that      he, from  the very beginning of the      investigation attempted  to  screen      out   or   shield   Ramanuj,   but,      according to the allegations in the      FIR was armed with ‘banka’. 10.  The interpretation  of  Section  174  of  the  Criminal Procedure Code  sought to  be given  by the  High  Court  is apparently contrary  to the  law laid  down by this Court in Pedda Narayana  & Ors.  Vs. State  of  Andhra  Pradesh  1975 (Suppl) S.C.R.  84. We  may usefully  reproduce the relevant observations which are as under :-      "Another point taken by the learned      Addl. Sessions  Judge was  that  in      the inquest  report details  of the      overt acts committed by the various      accused have  not been mentioned in      the relevant  column.  The  learned      Judge in  fact has  assumed without      any   legal    justification   that      because  the   details   were   not      mentioned in  the requisite  column      of the  inquest report,  therefore,      the presumption  will be  that  the      eye witnesses  did not  mention the      overt  acts   in  their  statements      before the police. To begin with it      seems  to   us  that   the  learned      Additional Session Judge’s approach      is legally  erroneous. A  statement      recorded by  the police  during the      investigation   is   not   at   all      admissible and the proper procedure      is to  confront the  witnesses with      the contradictions  when  they  are      examined   and    they   ask    the      Investigation   Officer   regarding      those contradictions. This does not      appear to  have done  in this case.      Further   more,   proceedings   for      inquest under  Section 174  of  the      Code of  Criminal Procedure  have a      very limited scope."      It was then observed:-      "A perusal  of this provision would      clearly show that the object of the      proceeding  under  Section  174  is      merely  to   ascertain  whether   a      person has  died  under  suspicious      circumstances or an unnatural death      and if  so  what  is  the  apparent      cause of  the death.  The  question      regarding the details as to how the      deceased  was   assaulted  or   who      assaulted   him   or   under   what      circumstance   he   was   assaulted

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8  

    appears to  us to be foreign to the      ambit and  scope of the proceedings      under   Section   174.   In   these      circumstance, therefore, neither in      practice  nor   in   law   was   it      necessary for  the police  to  have      mentioned  these   details  in  the      inquest report."      In view  of  this  settled  position  of  law,  in  our considered opinion,  the very  foundation of the judgment of the High  Court is  rendered unsustainable.  The High  Court disbelieved the evidence of Mangal (PW 1) and Chhote Lal (PW 2) on  the ground  that their  evidence is inconsistent with the recitals  in the inquest panchanama. The observations of the High Court in this behalf are as under:-      "It may be contended that according      to the  recitals in  the  FIR,  the      deceased  had  caught  hod  of  the      banka and,  therefore, there was no      injury caused  on the person of the      deceased which  could be attributed      to the use of banka Banka, which is      a heavy  sharp cutting  weapon, was      in the  hand of  Ramanuj and he has      attempted to  give a  blow  on  the      person of  the deceased.  Since the      intention was to commit the murder,      it can  be reasonably inferred that      the    banka    was    used    with      considerable  force.   If  in  that      situation it  was caught hold of by      the deceased,  serious wounds would      have been caused on the hand of the      deceased. Such  an injury  has  not      been noticed  by the  Investigating      Officer  on   the  person   of  the      deceased which  also would indicate      that  Ramanuj   was  sought  to  be      screened  out  from  the  scene  of      occurrence."      It is  this basic  foundation in  the impugned judgment which  has   resulted   into   erroneous   appreciation   of prosecution evidence  on record.  We may briefly set out the reasons for acquittal recorded in the impugned judgment, (1) the witnesses  are  close  relatives  of  Shanker  Lal;  (2) Dwarika Prasad  although shown  as a  witness in  the charge sheet, was  given up at the trial; (3) if Shanker Lal was to go to  Lucknow for  obtaining the stay order against the ‘No Confidence Motion’,  surely he would have carried some money with him  but in fact what was recovered from his person was only 70  paise; (4)  the  incident  took  place  in  a  busy locality but the prosecution did not examine any person from he said  locality; (5) Shanker Lal was a history sheeter and involved in  many crimes;  that he  had many  enemies in the village  and,  therefore,  the  possibility  of  assault  on Shanker Lal  by some  other persons  other than  the accused cannot be ruled out. The High Court then observed:-      "A  person   would  go   to   Court      specially  the   High  Court  after      having arranged  for the  money  to      meet the  expenses involved  in the      institution of  the    case.  Three      persons,   namely,    Shanker   Lal      (deceased), his  brother Mangal (PW      1) and uncle Chhote Lal (PW 2) were

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8  

    to  go   either  to   Barabanki  or      Lucknow,  which   would  mean  that      apart  from   litigation  expenses,      travelling   and    other    sundry      expenses for  three  people  should      have been  with the  deceased.  But      the investigating officer recovered      only 70  paise from  the pocket  of      the  deceased  vide  recovery  memo      (Ex.Ka-12) which  was sealed  in an      envelop (Ex.3)." 11.  The above  referred findings in our considered view are totally unsustainable for the following reason:-      It is  not and  cannot be disputed that Shanker Lal met with a  homicidal death.  Dr. Ram  Mohan  (PW  4)  held  the autopsy on  the dead  body of  Shanker Lal  and noticed  the following injuries:-      1. Lacerated would on the left side      of neck  4  c.m.  x  1/1.4  c.m.  x      muscle  deep   2  c.m.  above  left      collar bone.      2. Gun shot would of entry 3 c.m. x      3  c.m.   x  chest   cavity   deep,      circular in  shape surrounding skin      is blackened  and hairs are signed.      The would  is situated  on the left      side of  chest. 3 c.m. is above and      lateral to the left nipple. Margins      are inverted.      3. Gun  short wound of entry on the      right side  of  abdomen  2  c.m.  x      1/1.2 c.m.  x abd.  cavity  deep  3      c.m. right  to the  umblcus Margins      are inverted  surrounding  skin  is      blackened and hairs are signed.      4. Incised  wound on  the point  of      right thumb  on the  pulp 1  c.m. x      0.4 c.m. x muscle deep.      5. Gun  shot would  of exit  on the      right side  of lower  back  (limber      area) 5 c.m. x 3 c.m. x abd. cavity      deep.  Margins  are  inverted.  The      wound is  corresponding with injury      No.3.      6. Contusion  on the right scapular      region 1 c.m. x 1 c.m. in size.      7.  Two  sub-cutaneous  swelling  1      c.m. x  1 c.m.  on the left side of      chest 5  c.m. below  and lateral to      the  left   nipple.  Some   rounded      foreign  body  is  felt  under  the      skin.      The Medical  Officer opined that the cause of death was shock and  haemorrhage as a result of fire arm injuries. We, therefore, unhesitatingly conclude that Shanker Lal met with a homicidal death. 12.  Coming to  the culpability of the accused persons,  the evidence of  two eye  witnesses, namely,  Mangal (PW  1) and Chhote Lal  (PW 2) in our opinion is totally unblemished and can be  safely accepted  as  credible  one.  Mangal  is  the brother of  Shanker Lal.  He has stated that on December 24, 1983, he  along with  Shanker lal and Chhote Lal (PW 2) left the house  at 7.30  a.m. and  went to  the house  of Dwarika Prasad (DW  1) to  discuss about the ‘No Confidence Motion’. The copy  of the  notice of ‘No Confidence Motion’ was being

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8  

carried by  Shanker Lal.  After a brief halt at the house of Dwarika Prasad (DW 1), they left his house in order to go to Lucknow for  taking  appropriate  legal  proceeding  and  to obtain a  stay order.  When they  reached near  the house of Dhanendra Jain,  all the  four accused appeared on the scene of offence. A-1 was armed with double barrel gun, A-2 and A- 3 were  armed with  katta and  A-4 was armed with banka. A-4 uttered a  few abusive  words and immediately thereafter A-1 fired at  Shanker Lal.  A-2 and  A-3 also  fired from  their katta causing  bullet injuries to Shanker Lal. A-4 assaulted with banka. The incident took place at out 8.45 a.m. and the First Information Report came to be lodged at Masauli police station at  about 1.00  p.m. The FIR lodged by Mangal (PW 1) in all  material particulars  corroborated his evidence. All necessary details  about the  assault including the role and weapon used  by each accused persons has been referred to in the FIR.  Mangal (PW 1) then stated that his brother Shanker Lal died  on the  spot.  The  witness  was  although  cross- examined at  a  great  length  but  here  is  absolutely  no material brought  out during the cross-examined to discredit his testimony. We, therefore, see no hesitation in accepting the evidence  of Mangal  (PW 1)  as credible one. Chhote Lal (PW 2),  the uncle  of Shanker  Lal again  corroborated  the evidence of Mangal (PW 1) in all material particulars and he narrated the  entire story in the same  sequence without any omission or  mistake. In  addition to  the  above  evidence, Chhote Lal  (PW 2)  has stated that he was carrying with him Rs. 1400/-  to Rs.  1500/- for court expenses. There is some inconsistency as regards who was carrying the said money but in our  opinion the said inconsistency does not demolish the substratum of  the prosecution  case. It is also relevant to not that  during the  inquest panchanama,  a  notice  of ‘No Confidence Motion’  was recovered from the person of Shanker Lal. This  is an independent circumstance which speaks about the truthfulness  of the  prosecution case that Shanker Lal, Mangal (PW  1) and  Chhote Lal  (PW 2) then decided to go to the  Court   to  obtain  the  stay  order  against  the  ‘No Confidence Motion’.  There is  no serious  challenge to  the evidence of  Mangal (PW  1) and  Chhote Lal (PW 2) that they were going  along with  Shanker Lal to Lucknow. The presence of both  these witnesses,  therefore, cannot  be doubted. If this be  so, in  our opinion, the High Court had committed a serious error  in not appreciating the evidence of these two eye witnesses  in a  proper perspective  and had erroneously discarded   the    prosecution   story    on   a   erroneous interpretation of  Section 174 Cr.P.C. We are, therefore, of the considered  view that  the judgment of the High Court is totally unsustainable and needs to be set aside. 13.  Consequent upon  conviction of  all  the  four  accused persons under  Section 302/34  of the Indian Penal Code, the trial court  awarded a capital punishment to Abdul Ali (A-1) and imprisonment  for life  to A-2  to A-4 vide its judgment and order  dated 31st  August, 1988  and made a Reference to the High  Court.  The  High  Court,  however,  rejected  the reference; allowed  the criminal  appeals filed  by the four accused persons  and acquitted  each one  of them  vide  its order dated Ist December, 1988. Present appeal were filed in 1990 and  they are  being disposed of in April, 1997. Having regard to  the passage of time, we do not think it proper to confirm the death sentence awarded to Abdul Ali (A-1) by the IVth Addl. Session Judge. We reject the reference. We uphold the conviction  of A-1  to A-4  under Section  302/34 of the Indian Penal  Code and  Sentence each of the accused persons to suffer imprisonment for life. 14.  For the  aforesaid conclusion,  the appeal filed by the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8  

State  of  U.P.  is  allowed.  the  judgment  and  order  of acquittal dated  December 1,  1988 passed  by the High Court are set aside and the judgment and order of conviction dated 31st August,  1988 passed by the trial court against accused A-1 to  A-4 under   Section  302/34 of the Indian Penal Code are restored.  However, the  death sentence  awarded by  the IVth Addl.  Session Judge  Barabanki to  Abdul Ali  (A-1) is commuted to imprisonment of life. Capital Sentence Reference No. 3  of 1988 is rejected. A-1 to A-4 who are on bail shall surrender to  their bailbonds  forthwith to  serve  out  the sentences.