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PETITIONER: STATE OF U.P.

       Vs.

RESPONDENT: RAGHUBIR SINGH

DATE OF JUDGMENT:       13/12/1996

BENCH: M.M. PUNCHHI, K.T. THOMAS

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T      THOMAS. J.      Leave granted.      This  is   an  appeal  by  the  State  challenging  the acouittal of  two accused Manpal Singh (A-1) and his father- in-law Raghubir  Singh (A-2),  in a  murder case. During the pendency of the special leave petition Manpal Singh died and hence the  petition against  him stood  abated. So  we heard counsel for the State of U.P. and counsel for Raghubir Singh (A-2) on the merits of the appeal.      The case  involved kidnapping and murder of a minor boy (Ashok). The  victim Ashok  was 6  years  old  when  he  was murdered. He  was none  other than  the youngest  brother of accused Manpal  Singh. He  and  his  father-in-law  Raghubir Singh were  alleged to  have kidnapped the lad and throttled him to  death and  the dead  body was  dumbed in  a bit in a kachha room wherein a bumping set was noused. Sessions Judge convicted both  the accused  of offences  under Sections 364 and 302  read with  Section 34 of the IPC and sentenced them each  to   rigorous  imprisonment   for   five   years   and imprisonment for life respectively under the two counts. But a Division  Bench of  the High Court of Allahabad, on appeal filed by the convicted persons, set aside the conviction and acquitted  both.   Hence  the   State  filed   this   appeal challenging the acquittal.      Facts in brief: Accused Manpal Singh and deceased Ashok were sons  of Choki  Singh in  his third wife Ramsri (PW-1). Their female children included Sheela Devi (DW-1). They were living in  village Jaleshwar  (Eta District,  U.P.). Accused Manpal Singh  married the daughter of accused Raghubir Singh (A-2) and  two years  after  his  marriage  he  shifted  his residence to Agra where Raghubir Singh was residing with his family. Accused Manpal Singh prevailed upon his father Choki Singh to  give him  half share  of the landed properties and Manpal Singh  wangled the  sale proceeds from his father who sold away half of his landed property. Manpal Singh invested the money  in a  joint venture which he was carrying on with his father-in-law.  After the  death of Choki Singh, accused Manpal Singh pressurised his mother to give him the property left behind  by his  father, but  his mother (Ramsri - PW-1)

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did not  yield to  such pressures.  A few  days prior to the occurrence both  the accused  went to  Jaleshwar Village and ploughed the  land which  his father  left behind.  This was resisted  by   PW-1  Ram  Sri.  Accused  Manpal  Singh  then threatened her  that should  she persist with her resistence he would not mind even to finish off the remaining male heir (Ashok). But  his mother  did not take the threat seriously, but the threat was made into reality on the fateful day.      On 29.11.1977  while the child Ashok was playing on the roadside near  his residence  both accused went near him and caught hold  of him.  As they tried to forcibly drag him the child screamed.  His mother  Ramsri hearing  the cry  of her child came out of the house and on seeing the happenings she protested in a strident voice. Some neighbors were attracted to the  scene. As  they saw  both the  accused dragging  the child by  neck they  moved forward  to rescue the victim but accused  Manpal   Singh  then   whipped  out  a  pistol  and brandisned it  threatening with  the querry "you too want to die?" The  neighbors retreated  and  than  the  two  accused carried the child to the engine shed to Maharaj Singh (PW-2) which is situate next to the compound of Ramsri. They killed the child  by throttling  him and  dumped the dead body in a pit wherein  a pump  set was  installed. When  the neighbors found that the killers had slipped away from the kaccha room without the  boy they  anxiously rushed  to the shed and saw the horrifying  sight of  the death  body of the child lying submerged in the bit.      The matter  was reported to the police on the next day. Both the  accused were  arrested and after the completion of investigation both  the  accused  were  challenged  for  the crimes.      Prosecution story  was spoken  to by  Ramsri (PW-1)  as well as  Maharaj Singh  (PW-2) and Adal Singh (PW-3) who was Pradhan of  the village. Learned Sessions Judge accepted the aforesaid evidence  and convicted them and sentenced them as aforesaid.      Division Bench  of the  High Court  of Allahabad (Polok Basu and  K. Narain,  JJ.) which reversed the conviction and sentence made  scathing criticism  on the  judgment  of  the trial court.  The Division  Bench assailed the Session Judge observing that  "he has  not even  cared to  look  into  the statement of  defence witness  Sheela Devi". Learned counsel who argued  for the  appellant -  State has pointed out that the Division Bench of the High Court has overlooked the fair dealing given  by the  Sessions Judge to the defence witness and the rightful reasons adverted to by him declining to act on her  evidence. Counsel  then contended  that the Division Bench was  totally unjustified  in interfering with the well reasoned conviction and sentence passed by the trial court.      There is  no doubt that the child Ashok was murdered by throttling. Dr.  Daya  Shankar  (PW-4),  who  conducted  the autopsy, had  given adequate  data in the Post-mortem Report to support  his finding  that  the  child  was  murdered  by throttling. There  is also no dispute that body of the child was found  in the  water of  the bit  wherein  bump  set  of Maharaj  Singh  (PW-2)  was  installed.  PW-1  Ramsri.  PW-2 Maharaj Singh  and PW-3  Adal Singh have said in unison that the child  was physically  lifted up by both the accused and taken to  the engine  shed  and  later  the  kidnappers  had slipped out  of the  room without  the child  and  when  the witnesses entered  the engine  room they found the dead body of the child lying in the pit.      If the  aforesaid evidence  is accepted  by  the  court there is  no escape  for the  accused from conviction of the murder of the child but learned Judges of the Division Bench

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of the High Court swept off PW-1 Ramsri solely on the ground that her daughter Sheela Devi (DW-1) spoke derisively of the moral character of her mother. True DW-1 Sheela Devi said in her evidence that her mother was living in adultery with one Ram Pal  even during  the life-time  of  her  husband  Choki Singh.  Those   imputations  made   by  the   daughter  were disbelieved by  the Sessions  Judge lock  stock  and  barrel after discussing  her evidence  in extense.  We may  extract nere that part of the judgment of the Sessions Judge dealing with the evidence of DW-1:      "In this  case,  the  testimony  of      Smt.    Ramsri     regarding    the      occurrence of  murder as  such  has      remained  unshaken.   She  deserves      greater reliance because she is the      own mother  of the  accused Man Pal      Singh. The  defence also  tried  to      assail her  character by suggesting      that she had illicit relations with      one Ram Pal, who is the ‘Sadhoo’ of      Maharaj Singh (PW-2). I regard this      attempt as  only a  cruda method of      saving the  accused. The allegation      against Smt.  Ramsri was  that  she      had    illicit    relations    with      aforesaid Ram Pal. But her daughter      Smt. Sheela  Devi  (DW-1)  who  has      been examined  in the defence, says      that Smt.  Ramsri was  carrying  on      illicit relations  with Ram Pal and      one Edal  Singh at  the same  time.      She came  out with  a version  that      her mother  Smt.  Rashri  had  quit      living  with  her  father  and  had      adopted residence  in a  kothri  of      Shopkeeper of  her  village,  which      was situated considerably away from      her residential  house, She further      claimed that  on  one  evening  she      herself saw  Smt. Rashri  lying  on      the same  cot with  Ram Pal in that      Kothri. Her  statement  shows  that      the door  of the  kothri was opened      to the  mainstreet of  the  village      and at the relevant time, the doors      had  not   been  even  bolted  from      inside. Obviously such statement of      Smt. Ramsri  deserves  no  credence      whatsoever."      But the  Division Bench  of the  High Court,  evidently overlooking the  above discussion  of the Session Judge, has made an  unwholesome criticism  against the  judgment of the trial court in the following words:      "It is  strange  that  the  learned      Sessions Judge  has not  even cared      to  refer   to  the   statement  of      defence witness and possibly he did      not know  that she  was examined as      he has  finished the  judgment with      an observation  that no  imoutation      has been  made by  the  defence  to      challenge   the   two   independent      witnesses namely Maharaja Singh and      Edal Singh  for which  there was  a      clear statement of DW-1 Smt. Sheela

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    Devi which  also had  some  bearing      with the  reference to  the  cross-      examination of PW-1 Smt. Ramshree."      The Division  Bench reiterated  it in stronger terms at the  benultimate  portion  of  the  judgment  thus:  "It  is unfortunate that  learned Sessions  Judge has not even cared to look  into her  (DW-1 Sheela  Devi’s) statement."  It was uncharitable on  the part of the Division Bench to have made such a  baseless criticisms  on the  Sessions Judge who took pains to  discuss the  evidence of  DW-1 at  a  considerable length and  advanced sturdy reasons for not placing reliance on the evidence of DW-1.      Now the  question is  should  the  court  have  allowed defence witness  to  make  such  imputations  on  the  moral character of  her mother  in a  case where the fact in issue was whether the accused have kidnapped and murdered her son? Section 140  of the  Evidence Act permits that "witnesses to character may  be cross-examined  and re-examined."  Section 155 of  the Act  permits the  adverse party  to impeach  the credit of  a witness in the modes enumerated in the Section. The first  mode envisaged is by adducing evidence of persons who testify  that they believe the witness to be unworthy of credit.  Questions   to  elicit   indecent   or   scandalous imputations from  witnesses in the guise to shake the credit of another  witness of party should not have been permitted. Section 151  of the  Act saddles  every trial court with the power to forold such questions such questions "although such questions  or   inquiries  may  have  some  bearing  on  the questions before  the Court  unless they  relate to facts in issue." (The second and third modes envisaged in Section 155 are not relevant in this context) The 4th mode prescribed in the Section  applies to  a limited  class of  cases. It  is: "when a  man is prosecuted for rape or an attempt to ravish, it may  be shown  that  the  prosecurtix  was  of  generally immoral character."      In an  early decisions  of Patna High Court in Mahammad Mian vs.  Emperor. 52  Indian Cases  54, it  was pointed out that if  inquiries involving any scandalous matters are made with a purpose of shaking the credit of a witness "the court has  complete   dominion  over  them  and  may  forbid  such questions even  though they  may have  some bearing  on  the question  before   the  Court."   But  Court  may  have  not discretion to  forbid such  questions, if they relate to the facts in  issue or to matters necessary to be known in order to determine  whether or  not the  facts in issue existed. A Division Bench of the Calcutta High Court in Subala Dass vs. Indra Kumar  Hazzva &  Ors.,  AIR  1923  Cal.  315.  had  to consider the  objection raised  by the  opposite side when a question was but to the defendant during examination whether the defendant  was made  pregnant  by  certain  person.  The counsel who but the question defended it on the premise that it was  relevant as his client had a case that defendant did not inherit  the property by reason of her unchastity during the life-time of her husband. The Division Bench pointed but that if  the fact  in issue  was whether  the defendant  was disentitled  to  inherit  the  property  by  reason  of  her unchastity  then   the  question  would  be  relevant.  "If, however, it  was  asked  for  impeaching  her  credit  as  a witness." the  Court will  have to  consider its  powers  to forbid such questions.      If the  fact in  issue was  concerning the paternity of the child  Ashok, perhaps,  some relevance to the moral life of his  mother could  have been  assumed. But in this murder case where  the mother  of the  child gave evidence that her son was  murdered we  find little  scope for  conducting any

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inquiry into  the moral  life of  the mother.  Law does  not permit even  the child  of a  prostitute to be murdered. The murderer in  such a  case cannot escape by establishing that the mother  of the child was of loose morals. We, therefore, depricate  evidence   of  DW-1   as  quite  unnecessary  and irrelevant in this case.      Unfortunately the  Division Bench of the High Court did not consider  the  evidence  of  two  other  very  important witnesses (PW-2  Maharaj Singh  and PW-3  Adal  Singh).  The entire discussion  of  the  Division  Bench  appears  to  be focused on  the moral  character of the mother of the child. PW-2 Maharaj Singh is important in this case as the incident happened inside  the engine shed belonging to him. PW-3 Adal Singh was  the Pradhan  of the  village. Both witnesses were immediate neighbors  of the  house of  the deceased. Both of them said  in clear  terms that  the two  accused were  seen dragging Ashok  to the  engine shed and the witnesses raised their protests  but could not go near the assailants as they adopted a highly bellicose stance by pointing lethal weapon. They further  said that  when the accused had evacuated from the engine  shed without  Ashok they  rushed to the shed and found Ashok  lying dead  in the bit. Trial court placed full reliance on  their testimony.  But the Division Bench of the High  Court,   instead  of  considering  the  worth  of  the evidence, niggled  on some irrelevant features and by-passed the evidence of PW-2 and PW-3 very improperly.      High Court  did not  accept the  evidence of  PW-2, not because of  any inherent  infirmity discerned  from it,  but because on the day when PW-2 deposed in the trial court. One Ram Pal  (described as  a baramour of  PW-1 Ramsri) was also present in  the court  building. About  the evidence of PW-1 and PW-2  the High  Court made a general comment that if the witnesses had  come when Ashok was being dragged away by the assailants. Ramsri  would have  rushed to  rescue Ashok.  In that context High Court made a further comment while dealing with PW-1’s  evidence that  she did not see whether the dead body was  floating or  drowned in  water and still no effort was made  to take  the body  out. "This is rather impossible for any  mother if  she was  behaving as  a mother  to  have avoided to go to the body." The said comment was very unkind as against  the mother.  Her mental  balance when confronted with the  shocking scene and the shocking news of her 6-year old playing  son suddenly killed, could not have been as the learned Judges wished her to behave.      Suffice it  to conclude  that the impugned judgment has resulted  in  miscarriage  of  justice  as  a  well  merited conviction has  been reversed.  We  have  no  hesitation  in upsetting  the   said  judgment   of  the  High  Court.  We, therefore, set  aside the  acquittal of  the second  accused Raghubir Singh  and  restore  the  conviction  and  sentence passed on  him by the trial court. We direct the trial court to take  immediate steps  to put the second accused Raghubir Singh back  to jail  to  undergo  the  remaining  period  of sentence.