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CASE NO.: Appeal (crl.)  617 of 1998

PETITIONER: State of Uttar Pradesh                           

RESPONDENT: Devendra Singh                                           

DATE OF JUDGMENT: 13/04/2004

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT

JUDGMENT: JUDGMENT O R D E R  

ARIJIT PASAYAT,J

       The State of Uttar Pradesh in this appeal  questioned the legality of the judgment rendered by  Division Bench of the Allahabad High Court which set  aside the conviction of the accused-respondent under  Sections 302, 376 and 201 of the Indian Penal Code 1860  (in short ’IPC). The Trial Court had found the accused  guilty and sentenced him to imprisonment for life for  the first offence, and seven years and five years for  the other two offences respectively. High Court, in  appeal, reversed the judgment of the Trial Court and  directed acquittal.   

Background facts as projected by the prosecution  are as follows:

Complainant Brij Lal (PW-1) was father of the  deceased aged about 10 years. On 26.12.1978, at about  noon, the deceased went to the ’Kolhu’ of Rajendra Singh  father of the accused, in order to chew sugarcane.  She  was seen chewing the sugarcane at the ’Kolhu’ by the  witnesses. She, however, did not return home. The  complainant (PW-1) searched for her, but she could not  be found. He was told by the witnesses that deceased was  seen chewing sugarcane at the ’Kohlu’ of the accused and  later on she was seen going with the accused towards his  sugarcane field. The complainant and some other  witnesses went the next day to the sugarcane field of  accused Devendra Singh in order to search for the  deceased in the said field.  The accused did not permit  the complainant to have a look at the said sugarcane  field. Thereafter, the complainant took the ’pardhan’ of  the village with him as well as other persons and all of  them searched for the deceased in the sugarcane field of  the accused. During the search, some portion of the  field towards the south was found to be freshly dug. The  complainant and others dug the said place and the dead  body of the deceased was found buried there. The  complainant asked the other persons present there to  have a watch over the dead body and he himself went to  the police station to lodge the report.  The complainant

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lodged the report at P.S. Bilgram at 7.10 p.m. on  27.12.1978. On the basis of the information,  investigation was undertaken. On completion of  investigation charge sheet was placed. The accused  persons pleaded innocence and faced trial.   

Prosecution examined primarily three witnesses to  substantiate its accusations.  They are PWs 2 and 3 who  claimed to have seen the accused in the company of the  deceased just prior to the occurrence, and PW-4 who  claimed to be an eyewitness. He stated to have seen the  accused throttling the deceased. The High Court found  that the evidence of PW-4 did not inspire confidence.  His conduct was unnatural.  It was accepted that he had  not disclosed about his having seen the occurrence for  about three days.  The High Court also noticed that the  said witness at one place had admitted that he had not  seen the occurrence but during his examination later on  the next day again stated that he had seen the  occurrence. In this background the witness was held to  be unreliable.  High Court held that there was no other  material to link the accused with the alleged crime.   

In support of the appeal, learned counsel for the  appellant submitted that the approach of the High Court  is clearly erroneous.  Merely because PW-4 who was at  the relevant time about 16 years of age, and has given  reasons as to why he did not disclose having seen the  throttling for about three days that should not have  been held sufficient to wipe out his credible evidence.   He is an illiterate boy belonging to a very backward  place and was a farm labourer. Therefore, the High Court  should not have held that his conduct was not unnatural.  It was pointed out that there is no record to show that  he had admitted not to have seen the occurrence. It  appears to be an error of record. Further the evidence  of PWs 2 and 3 and the fact that the dead body was found  in the field of the accused, who prevented people to go  into the field initially are circumstances which  unerringly pointed to the guilt of the accused. The  medical evidence clearly established that the victim was  raped and murdered.   

In response, Mr. Ranjan Muherjee, learned amicus  curiae urged that the High Court has rightly discarded  the evidence of PW-4, finding his conduct to be  unnatural. Though the record does not show it, on the  first day of examination, PW-4 had stated not to have  seen the occurrence. The statement on the next day,  shows that in all probabilities he had said so. If  evidence of PW-4 is kept out of consideration, evidence  of others who claimed to have seen the accused in the  company of the deceased prior to the incident is of no  consequence. The High Court’s view is reasonable since  the appeal is against the judgment of acquittal.

In view of the rival submissions it has to be first  seen whether prosecution has established its case.   Strictly speaking, the case is not of circumstantial  evidence. Human behavior varies from person to person.  Different people behave and react differently in  different situations. Human behaviour depends upon the  facts and circumstances of each given case. How a person  would react and behave in a particular situation can  never be predicted. Every person who witnesses a serious

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crime reacts in his own way. Some are stunned, become  speechless and stand rooted to the spot.  Some become  hysteric and start wailing.  Some start shouting for  help.  Others run away to keep themselves as far removed  from the spot as possible.  Yet others rush to the  rescue of the victim, even going to the extent of  counter-attacking the assailants. Some may remain  tightlipped overawed either on account of the  antecedents of the assailant or threats given by him.   Each one reacts in his special way even in similar  circumstances, leave alone, the varying nature depending  upon variety of circumstances.  There is no set rule of  natural reaction.  To discard the evidence of a witness  on the ground that he did not react in any particular  manner is to appreciate evidence in a wholly unrealistic  and unimaginative way.  (See Rana Partap and Ors. v.  State of Haryana 1983 (3) SCC 327).         

As rightly noted by the Trial Court, the witness  was a young lad and according to his testimony the  accused was a hardened criminal with records of  violence.  It is his evidence that he was threatened by  the accused, therefore, his silence in not telling  others for the some time cannot, in the circumstances of  the case, be held to be suspicious and unnatural.  Further the High Court erred in observing that he had  stated during examination about his having not seen the  occurrence and later on clarifying that he did so  because of threats given by the accused. PW-4 nowhere  stated of his having not seen the occurrence. The High  Court also committed another error in holding that the  witness refused to be cross-examined. This fact is also  not borne out from the record.

Coupled with the evidence of PW-4, the evidence of  PWs 2 and 3 who claimed to have seen the deceased and  the accused shortly before the occurrence is of  significance. Even if the High Court kept out of  consideration PW-4’s evidence, the last seen theory was  a factor which was not duly considered by the High  Court. The dead body was found in the field of the  accused and evidence on record also shows that the  accused initially prevented PW-1 and others from  searching his field, but after lot of persuasions he  permitted the persons searching for the dead body to go  to his field and in fact the dead body was recovered  therefrom.  The said solid circumstance is sufficient,  coupled with the initial repulsion exhibited by the  accused to substantiate the guilt of the accused.                                                       

       The evidence on record leads to the inevitable  conclusion that the accused was responsible for the rape  and murder of the victim.  Though the judgment under  challenge is one of acquittal, in view of the patently  perverse conclusions arrived at by the High Court, the  same is indefensible and is set aside. The conviction as  recorded by the Trial Court and the sentences imposed  are restored. Accused shall surrender to custody  forthwith to serve the sentence imposed by the Trial  Court.

       We record our appreciations for the fair and able  manner in which Mr. Ranjan Mukherjee, learned Amicus  Curiae argued the case.      

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