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PETITIONER: SHER SINGH & ORS.

       Vs.

RESPONDENT: STATE OF UTTAR PRADESH

DATE OF JUDGMENT: 23/02/1967

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. SHELAT, J.M. MITTER, G.K.

CITATION:  1967 AIR 1412            1967 SCR  (2) 727

ACT: Criminal law-Acquittal-If High Court in appeal can  reverse- Value of inter-relationship between witness and victim.

HEADNOTE: The  appellants  were  charged for murder  under  s.  302/34 I.P.C.. and were:acquitted by the Sessions Judge.  On appeal the  High  Court reversed the acquittal  and  convicted  the appellants  under s. 302/34 I.P.C. In appeal to  this  Court the  appellants  contended  that  (i)  since  an  acquittal. "reinforces" the presumption of innocence, it was not a  fit case for reversal of an acquittal, and (ii) the testimony of the  eye  witnesses in the case was found  by  the  Sessions Judge to be unsatisfactory. HELD:The High Court rightly convicted the appellants. (i)The  powers  of  the High Court in an  appeal  from  an acquittal  are  m no way different from those in  an  appeal from a conviction.  The High Court can consider the evidence and  weigh  the  probabilities.   It  can  accept   evidence rejected by the Sessions Judge and reject evidence  accepted by   him,  unless  the  Sessions  Judge  relied   upon   his observation  of the demeanour of a particular  witness.   In departing  from  the conclusions of the Sessions  Judge  the High  Court must pay due attention to the grounds  on  which the acquittal is based on repeal those grounds  satisfaction torily, bearing in mind always that an accuse starts with  a presumption  of innonce in his favour and  this  presumption cannot  certainly  be less strong after the  acquittal.   If these matters are properly kept in view and the acquittal is reversed, there can no objection because the High Court.  is empowered to reverse an acquittal. [729 E-G] Sanwat  Singh  v. State of Rajasthan [1961]  3  S.C.R.  120, referred to. (ii)The  evidence  of  the eye  witnesses  was  consistent, convincing and credible The Sessions Judge lost sight of the main issue, namely, whether what the eye witnesses said  was credible, in an attempt to examine the inter-relation of the witnesses.  This is an inquiry of value up to a point but is not  conclusive  because there is no crime proved  in  small village  communities where some kind of relationship  cannot be  established  between witnesses and the victim  and  some

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petty quarrel shown to have taken place in the past  between some of the witnesses and the accused.  To decide a case  on the basis of such circumstances, unless they are of great or significant  magnitude, is to place reliance  on  collateral circumstances  at  the expense of direct evidence  of  guilt which really matters.  The first serves as a check upon  the latter but no more. [731 B-D]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 191 of 1964. Appeal  by special leave from the judgment and  order  dated May  20,  1964  of the Allahabad High  Court  in  Government Appeal No. 1386 of 1962. 728 A.   S. R. Chari and A. K. Nag, for the appellants. O.   P. Rana, for the respondent. The Judgment of the Court was delivered by Hidayatullah, J. The three appellants have been convicted by the  High Court of Allahabad under s. 302/34 of the  Indian’ Penal  Code  for the murder of one Harpal and  sentenced  to rigorous  imprisonment  for  life,  after  reversing   their acquittal  by the Sessions Judge, Meerut.   Originally  five persons  were  tried  for this offence.  All  of  them  were acquitted  by the Sessions Court.  On appeal, the  acquittal of the other two (Shanker and Tarif) was maintained but  the three  appellants  (Shersingh,  Baljor  and  Vijaipal)  were convicted.  They now appeal by special leave granted by this Court. The appellants are brothers and sons of Narayansingh.  Tarif and  Shanker  are brothers of  Narayansingh.   The  deceased Harpal was the brother of Naharsingh (P.  W. 1) and Amichand (P.  W.  5).  The house of Amichand and his brothers  is  in front  of  that of the appellants,  in  Mauza  Amanullahpur, Police Station Jani, District Meerut, where the offence  was committed, As frequently happens this murder was the result of a  petty quarrel earlier over the taking of carts through fields.  It is  hardly  necessary  to recount in detail  what  had  then happened.   Suffice it to say that Shersingh took  his  cart through Harpal’s field and there was a wordy quarrel.   Next Shersingh  stopped  a  cart in  which  Harpal  was  carrying sugarcane and Harpal kicked Shersingh and beat him with fist blows.   Nahar  Singh  (P.   W. 1) and  Khazan  (P.   W.  7) separated them.  The murder followed close upon the heels of the second incident.  The  case of the prosecution is that a fortnight  later  on the  morning  of November, 26, 1961 at about 7  a.m.  Harpal left his ghair (compound) to answer a call of nature.   Near the  gate  of his house the appellants and the  two  accused (since  acquitted) fell upon him.  Sher Singh  and  Vijaipal had  spears  and Shanker and Baljor had lathis.   They  beat Harpal  with  their weapons.  Tarif, who also had  a  stick, took no part in the beating but exhorted the others to  kill Harpal.   Harpal was pierced in the chest and  abdomen  with spears  and struck with sticks.  On his shout for  help  his brothers  Naharsingh and Amichand, who were working  in  the back  portion of their house came running and three or  four witnesses Bhupal (P.  W. 2), Tara (P.  W. 3), Katara (P.  W. 4)  and  one  Atarsingh (who was  not  examined)  came  from different sides.’ The assailants then fled.  Harpal who  had fallen  down was lifted, placed on a cot and covered with  a quilt.  He was however dead The autopsy later disclosed  two

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penetrating wounds in his chest 729 each  of  which had torn through his  heart,  a  penetrating wound transfixing the stomach and some contusions.  He  must have  died  in a matter of minutes.  The five  accused  were tried  for  his murder but were acquitted.   On  appeal  the three appellants were convicted and sentenced. The  learned Sessions Judge in a long judgment  exhaustively discussed  the evidence but lost himself in the  details  of family relationship and other irrelevant matters  sedulously brought out in a desultory cross-,examination.  He found ’it difficult  to accept any part of the testimony of  the  eye- witnesses.  The High Court on a reappraisal of the  evidence came  to  a contrary conclusion although it  maintained  the acquittal of Shanker and Tarif by giving them the benefit of the  doubt.  In this appeal Mr. Chari, learned  counsel  for the  appellants, drew our attention to the evidence  of  the eye-witnesses   and  contended  that  their  testimony   was unsatisfactory.   He submitted that this was not a fit  case for  the  reversal of an acquittal regard being had  to  the observations of this Court in Sanwat Sinah & Others v. State of   Rajasthan(1)  since  an  acquittal   "reinforces"   the presumption  of  innocence.   We shall deal  with  both  the aspects of his argument. It  has  been pointed out before by this Court as  also  the Judicial  Committee that the powers of the High Court in  an appeal from an acquittal are in no way different from  those in an appeal from a conviction.  The High Court can consider the  evidence  and weigh the probabilities.  It  can  accept evidence rejected by the Sessions Judge and reject  evidence accepted  by him, unless the Sessions Judge relied upon  his observation  of the demeanour of a particular  witness.   In departing  from  the conclusions of the Sessions  Judge  the High  Court must pay due attention to the grounds or)  which the  acquittal  is based and those  grounds  satisfactorily, bearing  in  mind  always  that an  accused  starts  with  a presumption of innocence in his favour and this  presumption cannot  certainly  be less strong after the  acquittal.   If these matters are properly kept in view and the acquittal is reversed,  there can be no objection because  our  Criminal. jurisdiction   empowers  the  High  Court  to   reverse   an acquittal. In  this  case the High Court reassessed  the  evidence  and considered  the grounds for its rejection by.  the  Sessions Judge.   Mr.  Chari contended that the  High  Court  ignored several factors.  His argument was that the High Court ought to have seen that the medical evidence contradicted the oral testimony, the evidence clearly showed that the attack  must have  taken place elsewhere and that the eye-witnesses  were interested  in  the victim and hostile to the  accused.   We shall now consider these objections. (1)  [1961]3 S.C.R. 120. 730 Harpal  had  three  penetrating injuries on  his  chest  and abdomen  One,  was a stab wound chest cavity deep  and   the direction  was  medially downwards.  The second was  a  stab wound 3 1/2" below the left nipple in the 7th inter  coastal space  near  stomach.  The wound was  partially  medial  and upward  and chest deep.  The third was a stab wound on  the, mid part of the epigastric region in the midline and it  was up to the back from the front and abdominal deep.  The other injuries  may  be.  ignored.’ The  first  two  injuries  had punctured the heart and, the third the stomach.  There was 8 oz.  of clotted blood in the pleura, 3 oz. of clotted  blood in  the peritoneum and  1  lb. semi-clotted blood   in  the

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pericardium. The largeintestines contained faecal  matter and the bladder was empty.   M.Chari said that the description of the injuries shows that  Harpal  must be lying down and not standing  when  the first  and  second  blows were given because  one  stab  was downwards  and the upwards. , This is not conclusive.   Much depends  upon the perspective  heights of the assailants  in relation to that of the victim, the lie of the land and  the moves  to avoid the blows by the latter.  There  is  nothing inherently improbable in the situation and direction of  the injuries which can be said to contradict flatly the evidence of the eye-witnesses.  The injuries were such     as     the gate of the house or elsewhere and no inference against  the testimony of the eye-witnesses can be drawn. Mr.  Chari  sought  to strengthen  this  argument  from  the circumstance that no blood was found at the spot, or in  the tidri where the cot was spread or on the clothes.  The  Sub- Inspector  Chauhal  (P.  W. 10) said that the place  of  the attack was sandy and blood had probably been trampled  upon. We have shown that the body contained 1 lb. and 11 ounces of blood  in  its various parts and  this  showed  considerable internal  bleeding.  It must be remembered that  Harpal  had worn  a kurta, a dhoti and a khes.  It is likely that  these between them absorbed the external bleeding which appears to be comparatively small.  At least one witness described that the  clothes.  were drenched in blood which they  must  have been wherever the murder took place.  It is a pity that  the clothes wore not sent to the serologist but we do not think that   an   adverse  inference  can  be  drawn   from   this circumstance.   The   evidence  of   the   eyewitnesses   is consistent.   That the incident took place at the very  door step  of Harpal makes the presence of his brothers  probable because  they were in the house.  The offence took place  in day  light  and there could be no mistake.  The  report  was made almost at once and the names of the assailants and eye- witness  were mentioned in it.  Although it said  that  many other  villagers saw the attack, it is perhaps  because  the maker  presumed that this must have been so.  The  emptiness of the bladder 731 showed  that the victim had voided but the fullness  of  the larger intestines supported the prosecution version that  he was going out to ease himself. We have had the evidence of the eye-witnesses read to us and after  careful  consideration we are satisfied  that  it  is consistent,  convincing and credible.  "The  Sessions  Judge lost sight of the main issue, namely, whether what the  eye- witnesses  said was credible, in an attempt to  examine  the interrelation of the witnesses.  This is an inquiry of value ’up  to  a point but is not conclusive because there  is  no crime proved in small village communities where some kind of relationship cannot be established between witnesses and the victim  and some petty quarrel shown to have taken place  in the past between some of the witnesses and the accused.   To decide  a  case on the basis of such  circumstances,  unless they  are  of great or significant magnitude,  is  to  place reliance  on  collateral  circumstances at  the  expense  of direct  evidence of guilt which really matters.   The  first serves as a check upon the latter but no more, The evidence’ of the eye-witnesses here is clear.  We accept the  findings of  the  High  Court  which are  supported  by  evidence  of sufficient probative force to satisfy us.  The appeal  fails and will be dismissed. Y.P.                   Appeal dismissed. 732

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