Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1247 OF 2006

Indra Pal Singh                                .....        Appellant

Versus

State of U. P.                         .....       Respondent

WITH

CRIMINAL APPEAL NO. 90 OF 2007

Jagat Singh                                .....        Appellant

Versus

State of U. P.                              ..... Respondent

J U D G M E N T

Lokeshwar Singh Panta, J.

1. Both these appeals arising out of the common judgment

and order dated 09.12.2005 passed by the Division Bench of

the  High  Court  of  Judicature  at  Allahabad  in  Government

Appeal No. 2004 of 1981, were heard together and shall stand

disposed of by this common order.  By the impugned order,

the High Court while setting aside the judgment of acquittal

dated  June  5,  1981  recorded  by  the  Additional  Sessions

Judge,   Hamirpur,  in  Sessions  Trial  No.  293  of  1980,

convicted  the accused under  Section 302 read with Section

149 and Section 148 of the Indian Penal Code and sentenced

them  to  imprisonment  for  life  and  two  years’  rigorous

imprisonment respectively.

2. Brief facts of the case are that Subedar Singh (P.W. 1)

has  got  three  sons,  namely,  Jai  Karan  Singh,  Shiv  Karan

Singh and Ram Karan Singh.  P.W. 1 lodged F.I.R. (Ex. Ka.1)

on  24.07.1980  at  6:15  a.m.  at  Police  Station,  Sumerpur

situated at a distance of about 15 kms. from village Patyora,

alleging therein that in the year 1976 dacoity was committed

at the house of his co-villager Lalloo Singh, who doubted that

the  offence  was committed  at  the  instance  of  his  son  Ram

Karan  Singh  and  on  that  account  Lalloo  Singh  had

entertained grudge against him and his family members.  One

Raja bhiah, resident of village Surauli was also involved in the

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said dacoity case and P.W. 1 appeared as a defence witness

for accused Raja bhiah and for that reason also, sons of Lalloo

Singh  used  to  threaten  him  with  dire  consequences.   He

alleged that on 23rd July, 1980 his son Jai Karan Singh had

gone to the market at Sumerpur and in the evening P.W. 1

went  to  Yamuna South  Bank  railway  station  to  receive  his

son, who was to bring some essential articles from the market.

At about 7:30 p.m., the train reached at Yamuna South Bank

station.  Jai Karan Singh along with Shiv Nath Kewat, Dayalu

(P.W. 4) and many other persons got down from the train.  He

took gunny bag containing 15 seers of ‘khalli’ from Jai Karan

Singh who was carrying one more bag containing 3-4 kgs. of

sugar.  All of them proceeded towards the village.  At about

8:30 p.m., they took a turn from Link Road for the pathway

going to the village and Jai Karan Singh was going a few paces

ahead of them.  Ayodhya Singh son of Lalloo Singh and Indra

Pal  Singh son of Prithvi  Singh armed with DBBL guns and

Ranvijay Singh son of Lalloo Singh along with one Jagat Singh

son of Rajwa Singh armed with SBBL guns and Ram Bahadur

Singh son of Lalloo Singh who was carrying  lathi  and torch

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were waiting for the arrival of his son Jai Karan Singh by the

side  of  the  pathway.   Ayodhya  Singh  fired  gunshot  at  Jai

Karan Singh and immediately thereafter Ranvijay Singh, Jagat

Pal Singh and Indra Pal Singh indiscriminately fired rounds at

Jai Karan Singh with their respective guns.  Jai Karan Singh,

on receiving fire arm injuries, fell down near the water channel

and ridge of the field of one Brinda Singh towards east side of

the  path  way.   The  witnesses  present  at  the  spot  flashed

torches at the faces of the accused and recognized them in

torch  light.   The  accused,  after  committing  the  crime,  fled

away from the scene of occurrence.

3. P.W. 1 with the help of his co-villagers took the body of

deceased Jai Karan Singh to his house at village Patyora.  He

got FIR scribed from his son Shiv Karan Singh (P.W. 5) at 3:00

a.m. on the following day of the incident and thereafter went

to the Police Station, Sumerpur.  He handed over the report to

the H.M. Rajendra Veer Singh (P.W. 6) who prepared Check

Report  on  the  basis  of  which  FIR  (Ex.  Ka.1)  came  to  be

registered.  Sub-Inspector Asha Ram Tripathi (P.W. 7) took up

investigation of the crime in his hand and rushed to the place

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where the dead body of Jai Karan Singh was laid.  He drew

inquest  proceedings  on  the  dead  body  and  prepared  an

Inquest Report (Ex.Ka.5) and other necessary papers (Ex. Ka.6

& Ka. 7) and then handed over the dead body in a sealed cover

(Ex.Ka.9)  along  with  other  necessary  papers  to  Constables

Raghuraj Singh and Raja Ram for being taken to the doctor for

post mortem.  He also recorded statements of the witnesses.

Site Plan (Ex. Ka.12) was also prepared and from the place of

occurrence  blood-stained  sample  was taken into  possession

vide Memo (Ex. Ka.9).  Two empty cartridges and 3 tiklis, etc.

were  collected  vide  Memo  (Ex.Ka.10)  from  the  scene  of

occurrence.  After receipt of the  post mortem report (Ex.Ka.5)

from  Dr.  P.N.  Singh  (P.W.  2)  and  on  completion  of  the

investigation,  P.W.  7  submitted  charge  sheet  against  the

accused persons.  They pleaded not guilty to the charges and

claimed trial.

4. The  prosecution  examined  P.W.  1  –  Subedar  Singh,

father of the deceased and Dayalu P.W. 4 as eye witnesses of

the occurrence;  P.W. 2 Dr. P.N. Singh conducted autopsy on

the body of Jai Karan Singh on 25 July, 1980 at 11:00 a.m.;

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P.W. 3 – H.G. Dibiya produced the case papers in the court;

P.W. 5 – Shiv Karan Singh, brother of the deceased, was scribe

of report (Ex.  Ka.  1) on the dictation of his father; P.W. 6 –

H.M.  Rajendra  Vir  Singh  prepared  the  check  report  at  the

police station on the basis of the written report handed over to

him by P.W. 1 who made an entry regarding registration of the

crime in G.D. and P.W. 7 Sub-Inspector Asha Ram Tripathi,

Investigating Officer of the case.

5. The accused in their statements recorded under Section

313  of  the  Code  of  Criminal  Procedure,  1973  denied  the

allegations of the prosecution.  They pleaded that they have

been framed in a false case due to enmity.  The learned trial

judge  disbelieved  the  evidence  of  the  prosecution witnesses

and  found  the  accused  not  guilty  of  the  charges  levelled

against them and accordingly, acquitted them.

6. Being aggrieved by the order of acquittal of the accused

recorded by the trial judge, the State of U.P. filed an appeal

before the High Court.  The Division Bench of the High Court

by its impugned judgment and order allowed the said appeal

and convicted  the accused persons under Section 302 read

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with Section 149 and Section 148 IPC and sentenced them in

the manner noticed above.  The judgment of the High Court

reveals  that  accused-Ram Bahadur  has  died,  therefore,  the

appeal  against  him  stood  abated  by  order  dated  03  June,

2005.

7. Feeling aggrieved by and dissatisfied with the judgment

and order of the High Court, Indra Pal Singh and Jagat Singh,

the appellants herein, filed Criminal Appeal No. 1247 of 206

and Criminal Appeal No. 90 of 2007 respectively.  It appears

from the record that Ayodhya Singh and Ranvijay Singh have

not questioned the judgment of the High Court holding them

guilty of the charges.

8. We have  heard  the  learned  counsel  for  the  appellants

and the learned counsel for the State and they have taken us

through the evidence of the witnesses and other materials on

record.

9. Learned senior counsel for the appellants first submitted

that there was considerable delay in lodging the FIR (Ex. Ka1)

by  P.W.  1  therefore,  no  reliance  can  be  placed  on  such  a

document.   On  examination  of  the  evidence,  it  is  clearly

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established that the occurrence took place on 23.07.1980 at

about 08:30 p.m. near village Patyora in which the accused

allegedly fired gun shots at Jai Karan Singh and FIR of the

occurrence  was lodged  at  about  6:15  a.m.  on the  following

morning at Police  Station, Sumerpur which is  situated at a

distance of about 15 km from the place of occurrence.  The

High Court observed in its order that no specific question was

put to P.W. 1-Subedar Singh, the informant, as to why he did

not lodge FIR of the occurrence at police post Surauli which is

quite near to village Patyora.  On appraisal of the evidence of

P.W. 1, we find that he has given explanation that due to fear

from the accused and non-availability of conveyance, he could

not  promptly  go  to  the  police  station  to  lodge  FIR  of  the

occurrence.   He  stated  that  after  the  murder  of  Jai  Karan

Singh by the accused, he with the help of his co-villagers took

the dead body of his son from the place of occurrence to his

house and since they were all wailing and grief stricken he got

the report of the occurrence scribed by his second son Shiv

Karan  Singh  (P.W.5)  at  about  3:00  a.m.  on  the  following

morning  and then at  about  4:00  a.m.  he  proceeded  to  the

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police station, Sumerpur and handed over the written report

to the police  official  present there.   In these circumstances,

the  explanation  offered  by  P.W.  1–Subedar  Singh  for  not

lodging the FIR soon after the occurrence,  in our view, was

quite satisfactory and convincing and there was no deliberate

delay on his part in reporting the crime to the police.  The first

contention therefore, cannot sustain.  

10. It  was next contended on behalf of  the appellants that

the learned trial judge has noticed several contradictions and

omissions in the versions of P.W. 1 – Subedar Singh and P.W.

4  –  Dayalu,  the  alleged  eye  witnesses  and  therefore,  their

evidence has been rightly rejected by him, but on the contrary

the High Court has mis-appreciated the evidence and found

the  accused  guilty  on  unsatisfactory  and  unbelievable

evidence.   In  order  to  appreciate  this  submission,  we  have

independently examined the evidence of both the witnesses.  It

is the evidence of P.W. 1 that on 23rd July he had sent his son

Jai Karan Singh (deceased) to Sumerpur market by train for

purchasing  khalli for the cattle and sugar for household use

and his son was to return to the village in the same evening

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and  therefore  he  went  to  the  South  Block  railway  station

where the train reached at about 8:00 p.m.  Jai Karan Singh

got down from the train and he was carrying one gunny bag

containing 15 kgs of  khalli and second bag containing 3 kgs.

sugar.  He took gunny bag of  khalli from his son and started

going to their house along with Shiv Nath, Laali, Dayalu (P.W.

4)  and  others  who  also  alighted  from the  same  train.   Jai

Karan Singh was going few paces ahead of him and other co-

villagers.   They  left  the  Link  Road  and  took  turn  on  the

pathway leading  to  their  village  and when Jai  Karan Singh

reached  near  the  field  of  one  Brinda  Singh,  Ram Bahadur

Singh (accused-dead) shouted that their enemy had reached

and should be killed.  Ayodhya Singh fired at Jai Karan Singh

with DBBL gun followed by Jagat Singh, appellant in Criminal

Appeal No. 90 of 2007; Indra Pal Singh appellant in Criminal

Appeal No.1247 of 2006 and Ranvijay Singh each fired at his

son with their respective guns and on receiving the fire arm

injuries, Jai Karan Singh fell  near the water channel  of the

field of Brinda Singh.  P.W. 1 and other persons accompanying

him recognized all the accused in the torches’ light which they

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were carrying with them and also in the moonlit  night.  The

accused, after committing the crime, fled away from the scene

of occurrence.  He requested Jagani, his co-villager, who was

also coming back from the railway station and going to the

village, to inform the members of his family about the murder

of  Jai  Karan  Singh.   He  with  the  help  of  his  companions

present at the place of occurrence took the dead body of his

son to his house.

P.W.  4  –  Dayalu  fully  corroborated  the  testimony  of

P.W. 1.   He deposed  that he recognized the appellants and

other accused persons clearly in the moonlit night and in the

light of torches flashed by Shiv Nath and Ram Bahadur Singh

at the time of occurrence.  The trial judge has disbelieved the

version of P.W. 4 – Dayalu on the ground that the witness only

stated  that  accused  Ram Bahadur  Singh and  witness  Shiv

Nath (not examined) were accompanying P.W. 1 and deceased

Jai Karan Singh and they flashed their torches and no other

person  was  in  possession  of  any  torch,  whereas  P.W.  1-

Subedar Singh stated that he and Shiv Nath flashed torches

on  the  faces  of  the  accused.   This  minor  discrepancy

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appearing in the evidences of P.W.1 and P.W. 4 is insignificant

and immaterial to discard the testimony of P.W. 4 that he was

not present at the place of occurrence.  P.W. 1 has stated in

the FIR that he and Shiv Nath flashed torches on the faces of

the accused and in the torch light the accused were clearly

recognized who after committing crime, had fled away from the

scene  of  occurrence.   P.W. 1 and P.W. 4 have  categorically

stated before the Court that in addition to torch light it was

moonlit night in which the accused were easily recognized by

them.  It is the evidence of P.W. 7 that at about 9:30 a.m. on

the following morning of  the incident,  he took torches from

P.W. 1 and Shiv Nath and on inspection thereof, these were

found in working condition.  Thus, the High Court has rightly

held that the trial judge has given undue importance to such

minor inconsistencies appearing in the statements of the two

eye witnesses which are of very trivial nature and the accused

could  not  have  been  acquitted  on  such  insignificant

contradictions.

11. The  learned  senior  counsel  then  contended  that  the

statement of P.W. 4 was recorded by the Investigating Officer

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after about 7-8 days from the date of occurrence which would

also  prove  that  P.W.  4  was  not  present  on  the  spot  as

projected  by  the  prosecution.   It  is  the  evidence  of  P.W. 4.

that in the early morning of the following day of occurrence, he

had gone to  Hamirpur  for  doing  work and stayed  there  for

about 7-8 days.  The trial judge disbelieved the testimony of

this witness on the ground that the witness could not disclose

the name of the shop keeper from whom he purchased blade

for his randdha at Sumerpur market on the day of occurrence.

We are of the considered view that the approach of the trial

judge  in  appreciating  the  evidence  of  the  eye  witness  was

wholly unwarranted and uncalled for.  The presence of P.W. 4

at the time of the incident has been fully proved on record and

his evidence is consistent and trustworthy to prove that the

accused persons had fired gun shots at Jai Karan Singh on

the day of occurrence when he along with deceased Jai Karan

Singh; his father P.W. 1, and other co-villagers were returning

from  the  railway  station  to  their  village.   The  trial  judge

observed  that  as  per  the  post  mortem report  deceased  Jai

Karan Singh was a young man of 35 years of age and of good

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built  and,  therefore  there  was  no need  for  P.W.  1-Subedar

Singh to go to the railway station to take a bag of khalli from

his son and carry the same from the railway station to the

village.  It has come in the evidence of P.W. 1 that his son Jai

Karan Singh was a patient of asthma and therefore he used to

be vigilant that his son should not take much physical strain

and because of that reason he went to the railway station to

share  with  his  son  the  burden  of  the  load  of  one  bag

containing 15 kgs. of ‘khalli’.  We do not find anything wrong if

P.W. 1 had gone to the railway station for extending some help

to his son.  Thus,  The entire approach of the trial court in

appreciating the evidence of the eye witnesses is perverse and

grossly improper.

12. Learned senior counsel for the appellants next contended

that the ocular testimony of P.Ws. 1 and 4 has been rightly

discarded by the learned trial judge as their testimony is at

variance  with the medical  evidence.   It  was contended  that

both the eye witnesses have stated that 4 gun shots were fired

at the victim, but a perusal of the post mortem report would go

to show that P.W. 2 – Dr. P.N. Singh found only 3 fire arm

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wounds on the body of the deceased.  We have examined the

evidence  of  Dr.  P.N.  Singh,  who  at  the  relevant  time,  was

posted  as  Surgeon  at  District  Hospital,   Hamirpur,  and

conducted autopsy on the dead body of Jai Karan Singh on

July 25,  1980 at about 10:00 a.m. and found the following

ante mortem injuries:-

1. Gun shot wound of  entry  4.5  cm X 4 cm X brain deep on the left  side  of  head near the external  ear,  upper  part  of  external  ear  was lacerated,  the brain matter  was seen coming out  of  the  wound,  tattooing  was  present  all around,  fracture  of  left  temporal  bone  was present.

2. Gun shot wound of  entry  2.5  cm X 2 cm X bone deep on the left side of upper part of the neck  near  the  ear  lobule,  lower  part  of  the external  ear  with  ear  lobule  was  lacerated, tattooing was present.

3. Gun shot wound of exit 14 cm. X 6 cm X brain deep  on  the  left  side  of  forehead  and  face, extending to the left eye, nose and right eye.

4. Gun shot wound of entry 1.5 cm X 1.5 cm X chest cavity deep on the right side of the chest in mid-auxiliary line.

5. Gun shot wound of exit 2 cm X 2 cm X chest cavity deep on left side of chest, lower part in posterior  auxiliary  line  16  cm  below  and behind the left nipple.

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6. Gun  shot  wound  of  exit  3  cm  X  3  cm  X abdominal cavity deep on the left side of back, 4 cm outer to mid-line.

Face  was  disfigured  due  to  injuries  and  left  eye  destroyed

completely  and  the  right  eye  was  collapsed.   On  internal

examination  of  the  dead  body,  Dr.  P.N.  Singh  –  P.W.  2

observed  that  there  was  fracture  of  left  temporal,  parietal,

frontal  and  left  lower  jaw  and  both  upper  jaw  bones.

Membranes  of  the  brain were torn and lacerated  at several

places.   The  brain  was  pulpy  and  seen  coming  out  of  the

wound.   The  bone  of  the  skull  was  fractured.   Five  small

rounded pellets were recovered from the cranial cavity.

There was fracture of the left 8th rib behind and right 7th

rib in the front.  Pleura were lacerated at several places.  The

right lung was lacerated and lower lobe at two places.  The

pericardium was punctured at 4 places, two in front and two

behind.  The heart was empty and punctured at four places,

corresponding to that in the pericardium.  There was about

half litre blood in the right chest cavity.  Two wadding were

recovered from the left side chest cavity and three pea sized

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pellets were recovered from one in between 6th and 7th ribs on

the left side and one pellet in between 3rd and 4th rib on the left

side and near the lower part of sternum with the fracture of

sternum.

In the opinion of the doctor, the death of Jai Karan Singh

was as a result of head injuries and cerebral laceration and

shock and those injuries were sufficient in the ordinary course

of nature to cause his death.  A perusal of the  post mortem

report would go to show that gun shot wounds of exhibit nos.

5 and 6 were corresponding to gun shot wounds of entry nos.

2 and 4.  Injury no. 3 - lacerated gun shot wound of exit 14

cm X 6 cm X brain deep on left  sides of forehead and face

extending on left eye nose and right eye was corresponding to

injury no. 1 – lacerated wounds (gun shot wound) of entry 4.5

cm X 4cm X brain deep on left side head near external ear,

upper part of internal ear lacerated, brain matter coming out

of the wound.  Looking to the size of both the wounds i.e. one

of  entry and one of  exit  (injury nos.  1  and 3)  which would

appear with two shots fired from gun hitting the deceased on

his head over lapping on left side of his head because in that

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position only the size of the wound of exit may be 14 cm X

6cm X brain deep.  On internal examination of the deceased,

left temporal parietal and frontal bones were found fractured.

Left lower jaw was also found fractured.  The brain was pulpy

and seen coming out of the wound.  The bone of the skull was

also found fractured.  Thus, the High Court has rightly held

that  there  was  no  real  inconsistency  between  the  ocular

testimony of eye witnesses and medical evidence.  The finding

of  the learned trial  judge  on this point was contrary to the

proper appreciation of the eye witnesses’ account corroborated

by  the  medical  evidence  and  the  High  Court  is  right  in

rejecting the said finding of the trail court.

13. The  learned  senior  counsel  for  the  appellants  then

contended that there was no motive for the accused to commit

the murder of Jai Karan Singh because as per the prosecution

evidence, the accused, if any, bore grudge against Ram Karan

Singh, the brother of the deceased at whose instance dacoity

was  committed  at  the  house  of  Lalloo  Singh  and  P.W.  1

Subedar  Singh  appeared  as  a  defence  witness  for  accused

Raja bhiah.  The learned counsel also contended that since the

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deceased  was  a  member  of  the  gang  of  dacoits,  there  was

every  possibility  that  he  might  have  been  killed  in  a  gang

rivalry and the appellants have been falsely implicated in the

present case.  There is no evidence on record to support this

contention and it deserves to be rejected.  It was urged by the

learned  senior  counsel  that  P.Ws.  1  and  4  are  interested

witnesses and as such no implicit reliance can be placed on

their  testimony  connecting  the  appellants  with  the

commission of the crime.  It is no doubt true that P.W. 1 is the

father of the deceased.  P.W. 4 is a co-villager of P.W. 1 who

has  corroborated  the  testimony  of  P.W.  1  on  all  material

aspect  of  the  case  and  has  clearly  recognized  the  accused

persons who on the day of occurrence committed the murder

of Jai Karan Singh.  The testimony of P.Ws.1 and 4 has been

found to be satisfactory, consistent and credible by the High

Court.  Both the witnesses have been subjected to searching

cross-examination  by  the  defence,  but  nothing  tangible

material has been extracted from their evidence to create any

shadow  of  doubt  to  disbelieve  and  discard  their  truthful

testimony.   

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14. It is well-settled that if the eye witness is related to the

deceased,  his  evidence  has  to  be  accepted  if  found  to  be

reliable  and  believable  because  he  would  honestly  be

interested in ensuring that real culprits are punished.  We do

no find any merit in any of the submissions of the appellants;

therefore, we confirm the convictions.   

15. On our examination of the judgment of the High Court,

we  find  that  the  High Court  has subjected  the  prosecution

evidence to critical scrutiny and has reached the conclusion

that so far the appellants herein are concerned, the charges

under Sections 302 read with Section 149, IPC and Section

148, IPC are fully established against them.  We are, therefore,

satisfied that the prosecution has successfully proved its case

against the appellants.    

16. We,  therefore,  concur  with the  view of  the  High Court

and affirming the conviction and sentence of the appellants,

dismiss these appeals.

........................................J.                                                  (Lokeshwar Singh Panta)

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........................................J.                                                  (Aftab Alam)

New Delhi, December 02, 2008.

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