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CASE NO.: Appeal (crl.)  114 of 1997

PETITIONER: State of U.P.                                            

RESPONDENT: Nawab Singh (Dead) & Ors.                                

DATE OF JUDGMENT: 03/02/2004

BENCH: Y.K. Sabharwal & S.B. Sinha.

JUDGMENT: JUDGMENT

S.B. SINHA, J:

       A judgment of acquittal rendered by the High Court of  Judicature at Allahabad is in question in this appeal at the  instance of the State of U.P.   

       The three respondents herein were charged for  commission of an offence under Section 302/34 of the Indian  Penal Code for causing death of one Sri Ram on 10/11.6.1978  at about 2.00 a.m.

BACKGROUND FACT:

       The prosecution case, as appearing from the First  Information Report, is that the respondents together with  one Ram Prakash (who is absconding) came to the house of  deceased about 2.00 a.m. in the night.  The house of the  deceased was a small one with a very small courtyard.  At  the time of occurrence, there were five inmates in the  house.  Amrit Lal then aged about 12 years, son of the  deceased and the first informant Ram Ratan aged 20 years,  brother-in-law of the deceased were sleeping on one cot.   Km. Kanth Shri, the unmarried sister of the deceased was  sleeping on another cot.  Renuka Devi, wife of the deceased  together with her 15 day’s old baby was sleeping on the  third cot in the open courtyard of the house.  The deceased  was sleeping on another cot in the courtyard under a shed  (chhappar) near the doors of the room and the kitchen.  The  house of Sri Ram had no shutter opening on the side of the  lane.  An opening in the wall existed for coming out of the  house in the lane.  As Renuka Devi gave birth to a child  only a few days back, a lantern was burning.   

       The accused persons at 2.00 a.m. on 10.6.1978  trespassed into the house.  Ram Prakash and Natthu were said  to have been armed with pistols whereas Nawab and Peshkar  were said to have been armed with lathis.  The parties were  said to be in inimical terms.

       It is contended that the accused persons were history  sheeters.  They were involved in two murder cases.  The  deceased Sri Ram was a witness in one of them.  He had  constantly been pressurized not to depose in that case by  the accused persons.  Ram Prakash together with the other

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accused persons upon entering the courtyard of the house  gave a threat to the deceased that he would be killed if he  deposed in the case of murder of Kedar.  The deceased is  said to be awaken at that time and allegedly replied that he  would make the same statement in the court which he had made  before the investigating officer.  Hearing the conversation,  the other inmates of the house awoke.  Ram Prakash is said  to have fired his pistol at Sri Ram causing an abrasion on  the left side back middle whereafter respondent No. 2 Natthu  fired a pistol shot at Sri Ram which hit the deceased on the  left side of the abdomen 21 cm. below the left nipple.  As a  result of the injuries suffered thereby Sri Ram is said to  have died.  Renuka Devi and Ram Ratan cried out for help  whereupon they were also threatened.  The entire incident  took about 2-3 minutes whereafter the accused persons left  the place of occurrence.  The accused persons are said to  have thereafter gone near the tubewell of the Het Ram  Pradhan where he and his brothers Har Nagar and Pati Ram  were sleeping on the roof of the kothri of the tubewell  where an electric bulb of 250 watt was burning.  Hearing the  sound of firing, the said persons were also said to have  been seen by them.  It is alleged that Ram Prakash and  Natthu shouted at Pradhan Het Ram stating that they had  killed Sri Ram and if he dared to depose in the case of  murder of Kedar, he would also be put to death in the same  manner.  Fearing assault at the hands of the accused and as  they, being not armed, did not come down from the rooftop.   At about 5.00 a.m., however, they are said to have gone near  the village ’abadi’ which is situated at about one and a  half furlongs.  They came to the place of occurrence and  found the dead body of Sri Ram lying on the cot under the  Chhapper.  Ram Ratan prepared a written report which was  written by one Har Nagar Singh whereafter the duo left the  village on bicycle at 5.30 a.m.  The police station is said  to be at a distance of 2 and = miles from the village.   While Har Nagar Singh awaited outside the police station,  Ram Ratan took the written report to the police station and  a formal First Information Report was lodged on the basis  thereof.  Upon completion of investigation, a chargesheet  was submitted.  Whereas Nawab Singh could be arrested in the  evening of 11.6.1978, the other accused persons were not  found in the village.  As noticed hereinbefore, Ram Prakash  could not be arrested so far.   

       In support of the prosecution case, nine witnesses were  examined out of whom PW 1 Renuka Devi, PW 3 Ram Ratan and PW  5 Amril Lal were eye witnesses.  The prosecution also  examined Har Nagar Singh (PW 4) to show that the accused  persons Natthu, his father Nawab Singh and Peshkar belonged  to the party of the accused Ram Prakash who was charged for  alleged commission of murder of Kedar.   

JUDGMENT OF THE SESSIONS JUDGE:

       The learned Sessions Judge having regard to the  statements of the respondents under Section 313 of the Code  of Criminal Procedure came to the conclusion that it stands  accepted that there had been ’party feelings’ in the  village.  The learned Sessions Judge, placing reliance upon  the eye witnesses, the medical evidence as also existence of  motive on the part of the respondents to commit the crime,  came to the conclusion that they along with Ram Prakash had  a common intention to cause the murder of Sri Ram.  Having  regard to the fact that the death of the deceased was caused  by Natthu, he was found guilty of commission of the offence

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punishable under Section 302 of the Indian Penal Code,  whereas the others were found guilty of the offence under  Section 302/34 of the Indian Penal Code.  Upon hearing the  accused persons on the question of sentence in terms of  Section 235(2) of the Code of Criminal Procedure, the  respondents were awarded sentence of life imprisonment.

       In arriving at the aforementioned findings, the learned  Sessions Judge relied upon the evidence of the eye  witnesses.  The learned Sessions Judge rejected the  submissions of the respondents to the effect that Ram Ratan  was not an eye witness inter alia on the ground that had he  not been present it would not have been possible to come to  the area police station at 6.00 a.m. having regard to the  fact that his house is situated about 20 miles away.  The  learned Sessions Judge also rejected the contention of the  respondents that as the crime number was not mentioned in  the Fard Ex. K-2, the prosecution case should not be  believed, on the ground that the same was an inadvertent act  on the part of the investigating officer.  He also relied  upon the evidence of Shambu Dayal PW 2 who was a witness to  the Fards.  So far the contention of the respondents, that  the deceased might have been murdered elsewhere and his dead  body has been brought to the house is concerned, the same  was rejected on the ground that admittedly at the time of  his death the deceased was wearing only an underwear and had  kept his baniyan separately on the cot by his side which was  sufficient to prove that he had been lying on the cot inside  the house when he was murdered.

HIGH COURT JUDGMENT:

       The appeal against the aforementioned judgment and  conviction was heard by a Division Bench of the Allahabad  High Court.  The Division Bench surprisingly without finding  fault with the reasoning of the learned Sessions Judge came  to the conclusion that it was a case of ’hit and run’ during  night hours and actual incidence was not witnessed by any  one mainly on a mistaken belief that the deceased suffered  only one gun-shot injury.   

       The findings of the Division Bench of the High Court  which are as under:

"After hearing the learned counsel for  the appellants Sri S.S. Tewari and  learned Addl. Government Advocate and  perusing the record, we do not feel  inclined to accept the prosecution  version, as stated.  The manner in which  the shooting is said to have been done  by the accused persons, do not inspire  confidence in view of the contradictory  and varying statements of the eye  witnesses.  The medical report and the  nature of injury on the person of the  deceased do not find corroboration from  the ocular evidence.  The explanation of  the witnesses about the injury on the  back of the deceased is not at all  convincing and believable.  The injury  over the abdominal region with scorching  around the area and the direction of the  bullet travelling upward from the

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abdomen indicates that the person was  hit, while he was sleeping in lying  posture.  It is also not acceptable that  the accused persons before actually  hitting the deceased, would raise such  alarm, so that witnesses may become  available by awaking them.  If the  intention of the accused persons was to  kill the victim, so that he may not  appear as a witness, in the other case  pending against them, there was no  necessity of accosting and challenging  the deceased at the mid of the night.   They could have easily fired and  escaped.  It appears that it was a case  of hit and run during night hours and  actually incident was not witnessed by  any one.  The accused persons were  implicated in the case on account of  enmity and suspicion, and are thus  entitled for the benefit of doubt."

       Mr. C.D. Singh, learned counsel appearing on behalf of  the appellant would submit that the High Court committed a  serious error in passing the impugned judgment having failed  to take into consideration that:

(i)     There had been a motive of commission of crime. (ii)    There had been no delay in lodging the First  Information Report.  (iii)   The medical report fully supported the prosecution  case and no contradiction in material particulars  have been pointed out in the deposition of the  prosecution witnesses. (iv)    There had been no reason for false implication of  the accused persons. (v)     There was no reason for the eye witnesses to depose  falsely.

       Mr. Jain, learned counsel appearing on behalf of the  respondents, on the other hand, would submit that the  medical evidence does not support the prosecution story  inasmuch as the deceased died out of only one gun-shot  injury.  The learned counsel would contend that Ram Prakash  having been absconding and Nawab Singh having since died and  no overt act on the part of the other respondents as regard  the commission of the murder having been alleged, the  judgment of acquittal should not be interfered with.

       The learned counsel would submit that admittedly the  night was dark and the deceased was sleeping on a cot in the  courtyard and as such it was improbable for the eye  witnesses to identify the two respondents.

       It was pointed out that the story of chasing the  accused by Renuka Devi had been contradicted by Ram Ratan.   The learned counsel furthermore pointed out that whereas  Renuka Devi stated that the accused persons were chased upto  1 furlong, Ram Ratan categorically stated that he had not  chased the accused but they ran away towards the West after  going out of the deceased’s house.   

       Mr. Jain would further draw our attention to the post  mortem report and submit that that the medical evidence does  not corroborate the ocular evidence.  The learned counsel

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would further submit that the deceased having been sleeping  in the courtyard, it is not possible to see the accused  persons from inside the room.

       It was pointed out that the Fard Ex. K-2 did not  mention the crime number which also throws a suspicion as  regard the time when the Fard was recorded.

ANALYSIS OF THE EVIDENCE:

       Having regard to the unsatisfactory nature of the  judgment passed by the High Court, we have gone through the  record of the case.   

       Renuka Devi, wife of the deceased in her deposition  supported the prosecution case fully.  She categorically  disclosed the reason as to why the lantern used to burn  regularly at the same place.  She further deposed that both  Nawab and Peshkar who had lathis in their hands were  standing just outside the house and were visible from the  courtyard.  In cross-examination she had also disclosed that  Natthu was an accused in the case of Kedar in which case her  husband was a witness.  She further stated that her husband  was threatened not to depose in the said case earlier also.   Her statement that Ram Prakash was standing only 4-5 hands  away from the cot where her husband was lying when he had  been fired; whereas Natthu was only 2-3 hands therefrom,  when he fired his shot, is categorical.  She further stated  that she ran upto the accused when the shots were fired.   Her statement to the effect that she had gone out of the  house chasing the accused upto one furlong may be incorrect  as no such statement appears to have been made before the  investigating officer but that, in our opinion, is of no  moment.  Such an omission does not disprove the prosecution  case.  No other infirmity in her deposition has been pointed  out nor do we find any.   

       PW 3 Ram Ratan also fully supported the case of the  prosecution.  The only discrepancy which has been pointed  out by Mr. Jain is that whereas he had spoken about the  giving a slap on the cheek of the deceased by one of the  accused, no other witness stated so.  Again such minor  discrepancy is of not much significance when his presence in  the house at the time when the occurrence took place is  beyond any doubt.  The contention of Mr. Jain to the effect  that there is no reason as to why he should have been  present in the house of the deceased on the date has rightly  been rejected by the learned Sessions Judge inasmuch as it  was impossible for a person to be present in the police  station in the early morning of the following day, as he  could not have been communicated of the incident during  night nor any such case has been made out.  It is not even  alleged that there existed even a facility of  telecommunication in the village.

       The fact that he had not chased the accused persons  cannot be said to be an unreasonable conduct on his part in  view of the fact that the accused persons were armed.  The  evidence of PW 4 Har Nagar Singh also corroborates the  prosecution case.  Nothing has been pointed out either  before the High Court or before us to show that he is  untrustworthy.  PW 5 was the son of the deceased.  He at the  time of incident was aged about 12 years.  The learned  Sessions Judge satisfied himself that he possessed normal  intellect and, was, thus, found fit to depose in the case.

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       Yet again no discrepancy in the statement worth  noticing has been brought to our notice.

       Dr. S.P. Agarwal who conducted autopsy on the dead body  has proved the post mortem report.  The post mortem was  conducted on 12.6.1978 at 4.00 p.m, the material portion of  the report reads thus:

"Probable Age \026 About 36 years Probable time since death \026 About 1.1/2  day. External Examination

1. Condition of body \026 R.M. alongwith  upper lower limb, blister present, skin  peeled off at places.

Eyes \026 Open

Incised wounds \026 Ante Mortem injuries. 1.      One G.S. wound of entry 4 cm x 2 cm  x abd. cavity into left side  abdomen 21 cm below the left nipple  (sic)lacerated. sic coming out  surrounding by scorching area in an  area of 10 cm x 4 cm directed  inward upward and medially. 2.      Abrasion 7 cm x 0.5 cm on the left  side back auxilary line base,  middle.

***                     ***                     ***

II -  Thorax.

a. walls, ribs, cartridges see injury  noted b. Pleura                               Rt. Punctured. c. xxx d. Right lung      Punctured 3 cm x 1 cm e. xxx f. Pericardium    contains clotted blood g. Heart with wt. Rt. Side punctured 1.5  cm 1 cm (sic) 8 Oz.

III \026 Abdomen

1.      xxx 2.      xxx 3.      Cavity             contains clotted blood 4.      Buccal cavity, teeth    16/16 5.      xxx 6.      Stomach and its contents \026 Empty  punctured 3 cm x 1 cm (sic) 7.      xxx 8.      Large intestines and its contents \026  Full of faeces, NAD 9.      Liver with wt. Left side punctured 2  cm x 1 cm x 2 lb.

Addl. remarks One caroted bullet  recovered from Rt. Shoulder, one under  the ribs.

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Cause of death \026 The cause of death due  to shock and haemorrhage as a result of  gun-shot injuries."

       The post mortem report as well as the statements of Dr.  S.P. Agarwal in Court fully support the prosecution case.   He categorically stated that the death occurred owing to  ’the injuries’, i.e., there were more than one injury.  It  further appears from ’Additional Remarks’ of the post mortem  report that two bullets were recovered from the body.

       The High Court unfortunately, as noticed hereinbefore,  in recording the judgment of acquittal, wrongly laid  emphasis that only one fire injury was caused.  The medical  report shows that death took place because of ’injuries’  meaning thereby more than one injury.  The post mortem  report further shows that whereas one injury was caused on  the left side of the abdomen the other one was caused on the  right side of the body.  Keeping in view the nature of the  injuries suffered by the deceased, the same could not have  also been caused by one shot.  Furthermore, evidently the  shot fired by Natthu was fatal and not the one fired by Ram  Prakash.   

       We have also seen the site plan, from a perusal whereof  it appears that the courtyard was a very small one.  The  width of the courtyard was 3 paces and its length was only 7  paces.  As disclosed by the eye witnesses, they were  standing only two hands away from the room. All the accused  persons were residents of the same village and, thus, it  cannot be said that, even if the light was dim, it was  impossible for the eye witnesses \026 PW 1, PW 3 and PW 5 to  identify them.  So far as non-mentioning of the crime number  on the Fard Ex. K-2 is concerned, PW 9 in his deposition was  forthright in admitting that he had not thought necessary to  write crime number on Fard Ex. K-2.  Such laxity on the part  of the investigating officer, in our opinion, would not  disprove the prosecution case.

SHOULD WE INTERFERE WITH A JUDGMENT OF ACQUITTAL?         The High Court has not assigned any cogent or  sufficient reasons for disagreeing with the findings of the  learned Sessions Judge.  It arrived at certain conclusions  without analyzing the evidences on record.  It is based on  surmises and conjectures.  Despite finding that there had  been an injury over the abdominal region with scorching  around the area apart travelling upward from the abdomen  which indicated that the deceased was hit, no explanation  has been given why the same was not found to be in  consonance with the prosecution story.

       The High Court acquitted the accused persons without  analysing the evidence on record and in that view of the  matter, the impugned judgment cannot be sustained. (See Amar  Singh Vs. Balwinder Singh 2003 (2) Supreme 155: JT 2003 (2)  SC 1)

       The Trial Court upon critical examination of the  evidence of the eye witnesses had rightly concluded that  they were truthful witnesses and the respondents together  with Ram Prakash (absconding) and Nawab (since deceased)  were present at the time of occurrence.  Merely because the  witnesses happened to be the relatives of deceased by itself  cannot be a ground to reject their testimonies.  In view of

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the fact that the occurrence took place at the dead of night  they were natural witnesses and were supposed to be present  at the place of occurrence.

       The reasoning of the High Court to the effect that  there was no reason for the accused to raise an alarm to say  the least, is incomprehensible inasmuch as had the deceased,  upon being threatened, stated that he would not depose  against Ram Prakash and Natthu in the case of murder of  Kedar, he might have been spared.  The High Court failed to  notice that even similar threat was given to Het Ram which  should have been considered as a part of the same  transaction. Furthermore, if the eye witnesses are  trustworthy, the motive attributed for commission of crime  may not be of much relevance.  In this case, however, the  motive for commission of the crime stands proved.  We are  satisfied that by reason of the judgment of the High Court,  a great miscarriage of justice has taken place.  We,  therefore, are of the opinion that the impugned judgment of  the High Court cannot be sustained.

       In State of U.P. Vs. Premi and Ors. [2003] 2 SCR 266  wherein one of us (Sabharwal, J.) was a member observed:

"A well reasoned judgment of the  Sessions Court on critical analysis of  the evidence was reversed by the High  Court on consideration of improvements  and contradictions which are minor and  natural and rather go to show the  truthfulness of the evidence."

       It was further observed:

"We are conscious of limitations while  dealing with an appeal against a  judgment of acquittal.  Having, however,  found that miscarriage of justice has  resulted by an entirely faulty and  erroneous appreciation of evidence by  the High Court, it becomes our duty to  interfere in the matter.  From the  evidence, the only view possible is one  taken by the Sessions Court."

       It is not a case where two reasonable views are  possible.  It is also not a case where findings recorded by  the High Court are fully supported by the evidences on  record.  The High Court, as noticed hereinbefore, proceeded  absolutely on a wrong premise that there had been only one  fire injury which is contrary to records.   

       The High Court being a court of first appeal was  required to consider and reappreciate the evidences but it  failed to do and proceeded to dispose of the appeal on  general observations which is impermissible.  (See Narendera  Nath Khaware Vs. Parasnath Khaware & Ors. (2003) 5 SCC 488)

       It is well-settled that when reasoning of the High  Court is perverse, this Court may set aside the judgment of  acquittal and restore the judgment of conviction and  sentence upon the accused.  (See Ramanand Yadav Vs. Prabhu

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Nath Jha & Ors. JT 2003 (8) SC 404 : 2003 (7) Supreme 576).   It is further well-settled that there is no embargo on  appellate court to review evidence upon which an order of  acquittal is based.  [See Chanakya Dhibar (Dead) Vs. State  of West Bengal and Ors. 2003 (8) Supreme 884, Surinder Singh  & Anr. Vs. State of U.P. JT 2003 Supp (1) SC 226 : 2003 (7)  Supreme 562, Gorle S. Naidu Vs. State of A.P. and Ors. 2003  (8) Supreme 893 and Suchand Pal Vs. Phani Pal & Anr. 2003  (7) Supreme 780 : JT 2003 (9) SC 17]

       We, therefore, have no other alternative but to hold  that the High Court went wrong in passing a judgment of  acquittal reversing the well-reasoned judgment of the  learned Sessions Judge.  It is wholly unsustainable.

CONCLUSION:

       In view of aforementioned, the judgment of acquittal  passed by the High Court is set aside and that of the  learned Sessions Judge is restored.

       As respondent No. 1 Nawab Singh is said to have  expired, the appeal stands abated against him.   

       This appeal is, therefore, allowed so far as respondent  Nos. 2 and 3 are concerned.  They shall serve out their  remaining sentences imposed upon them by the learned  Sessions Judge wherefor requisite steps shall be taken in  accordance with law.  

       This appeal is allowed with the aforementioned  directions.