IN THE SUPREME COURT OF INDIA

CRIMINAL APPELATE JURISDICTION

CRIMINAL APPEAL NO.1285-1287 of 2001

State of U.P.     …..  Appellant

Versus

Sukhpal Singh & Others    ….. Respondents

J U D G M E N T

Dalveer Bhandari, J.

1. These appeals are directed against the judgment dated

03.07.2000  passed  by  the  High  Court  of  judicature  at

Allahabad in Criminal Appeals Nos. 2311, 2234 and 2243 of

1980, by which the High Court has set aside the judgment of

conviction  of  accused  (respondents  herein)  passed  by  the

Additional Sessions Judge, Aligarh, U.P.

2. Brief  facts  which  are  necessary  to  dispose  of  these

appeals are recapitulated as under:-

The  prosecution  version,  as  set  up  in  the  first

information report  by Shri Bhagwant Singh, PW2 is that on

1.9.1979 at about 7.45 p.m. in the evening, Hiralal Yadav, the

elder brother of the complainant, Kundan Singh, Chhabi Nath

Singh, Tikam Singh and Chandan Giri were sitting in the open

area of the house of Bhagwant Singh. Aidal Singh, the younger

brother of Hiralal and the ladies of the family were inside the

house.   At  that  time,  about  10  to  15  persons  armed  with

country-made  pistols,  guns  and other  weapons  entered  the

house of the complainant.  They came for committing dacoity

as mentioned in the FIR.  They started indiscriminate firing

and in  the  process  they  killed  Hiralal  and Aidal  Singh and

injured  Smt.  Longshree  and  Chandan  Giri.   It  is  further

disclosed in the FIR that the miscreants inquired about the

property  articles  from  Smt.  Longshree  and  looted  licensed

single barrel gun of Aidal Singh and some other articles, the

details  of  which  were  not  given  in  the  FIR.   There  was

moonlight and lantern light at the spot where the incident had

taken  place.  Amongst  the  miscreants,  accused  Sukhpal,

Harpal, two  brothers, sons of Rabti Singh, Ajanti, resident of

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village Sikanderpur and Munna Giri, resident of Sitapur have

been  identified  in  the  moonlight  and  the  lantern  light.

According to the prosecution, they remained on the spot with

other miscreants for about half an hour.

3. It is stated that the incident had taken place on 1.9.1979

at 7.45 am and the FIR was lodged at 9.15 p.m. on the same

night.  The case against the accused persons was registered

and investigated.

4. The injured eye witnesses were medically examined on

the same night at the Primary Health Centre, Sikandrarao by

Dr. S.K. Jha.  The condition of Hiralal and Aidal Singh was

precarious  and  their  dying  declarations  were  recorded  at

Sikandrarao by Shri Ram Autar Saxena, Tehsildar Magistrate,

PW9.  Later on, both Hira Lal and Aidal Singh succumbed to

their injuries.   

5. Aidal  Singh in his dying declaration specifically named

Sukhpal Singh as assailant who had fired at him and Hiralal

named Sukhpal,  Harpal  and Ajanti  whom he had identified

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and who had fired shots at him.  He also stated that there

were 10/15 persons armed with double barrel guns. They had

given  beatings.   In  the  instant  case,  according  to  the

prosecution version, two persons namely Hira Lal and Aidal

Singh were killed and Chandan Giri, PW3 and Smt. Longshree

PW5 wife of Hira Lal were injured.  The accused persons were

recognized in the light of lantern and moonlight.   The accused

persons  were  otherwise  known  to  the  witnesses.   The

complainant  has  stated  that  Sukhpal  and  Harpal  were  his

cousins  and  Ajanti  was  accused’s  sarhu  (brother-in-law  –

husband  of  the  sister  of  the  wife  of  accused  Sukhpal).

Accused Munna Giri was also known to him as the sister of

Munna Giri was married in his village and in that connection

Munna Giri  used to visit  this  village  off  and on.   Both the

accused and Sukhpal were friends.   

6. Chandan Giri, PW3 had executed a sale deed of some of

his abadi land in his favour and in favour of his two brothers

on  20.7.1979  for  which  agreement  has  been  executed  on

6.6.1979  and  Chandan  Giri  after  the  execution  of  the  sale

deed  parted  with  the  possession  of  that  land.   Before  the

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execution of the said sale deed, accused Sukhpal got a sale

deed of the same land executed in his favour from Chhauttan

Giri and Jamuna Giri and for that matter proceedings under

sections 107 and 145 of Cr.P.C. were started and when there

was much tension on that account, Hira Lal had reported the

matter to the police and, consequently, FIRs were lodged.

7. PW3 Chandan Giri stated that on 1.9.1979 at about 7.45

in the evening, while he was returning from the temple after

worshipping the deity, Chhabi Nath, a close relation of Hiralal

who was sitting in front of the door of the house of Hiralal

called him and he accordingly went to him where besides him

Tikam Singh,  Hiralal  and Kundan Singh were  also  present.

While they were sitting there, some miscreants came on the

spot  armed  with  guns  and  other  weapons.   Out  of  the

miscreants, he could identify accused Harpal, Sukhpal, Ajanti

and Munna Giri who were otherwise known to him held fire

arms in their  possession.   The  miscreants  also  entered  the

house of Hiralal and caused injuries to Aidal Singh and others

who  were  inside  the  house.   He  stated  that  the  accused

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persons had also removed the licensed gun from the house of

Hiralal.

8. Dr. K.A. Singh, PW4, on next day i.e. on 2.9.1979 at 4.45

p.m. conducted the post mortem of Aidal Singh and he found

the following injuries:

1. One  gun  shot  wound  of  entrance  1-1/3”  x  ¾”  x chest and abdominal cavity deep on left side front of chest, 4½” below the left nipple.  No tattooing, no blackening was found in the injuries.

2. One gun shot wound of exit ¾” x ½” cavity deep on right side on posterior axillary line.

3. Multiple  abrasions  in  area  of  6½”  x  3½”  around injury no.1.

4. One triangular abrasion 2½” x 1½” x on the left of the back on the lower part.

5. Abrasion 3” x ½” just below left buttock.

6. Abrasion ½” x ¼”, 2½” below injury no.2.      

7. Upon  internal  examination,  8th,  9th and  10th ribs were fractured and the pleura of the left lung was also  found  torn  in  which  clotted  blood  was  also found.  In the cavity of the stomach, about half pint clotted blood was also found wherein about 3 oz. of food  mixed  with blood  could  be  detected.   Injury no.1 could be caused by some firearm like gun and which was the cause of the death which occurred on account of shock and hemorrhage.  The witness proved his report Ex.Ka.6.”

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9. Dr.  B.N.  Gupta,  PW7  conducted  the  post  mortem

examination of Hiralal and he found the following injuries on

his person:

“1. Stitched wound 12 cm in length containing six stitched on the middle  of  the stomach.   The injury was found 1 cm in width and was cavity deep.

2. Stitched wound 7.5 cm in length and oblique in nature.   It  contained seven stitched and it  was also found to be 1 cm in width and it was also cavity deep. One end of the injury was 6 cm away from injury no.1 towards left while the other end of the injury was in the middle of injury no.1.

3. Incised wound 1.5 cm x 5 cm x stomach cavity deep  on  the  right  side  of  the  stomach,  10  cm away from the middle on the outer aspect.

4. Incised wound 1.5 cm x 1 cm x stomach cavity deep on the left side of the stomach, 10 cm away from the midline towards outer aspect.

5. Abraded abrasion 5 cm x 1.5 cm on the left elbow on the outer side.

6. Abraded abrasion 1.5 cm x 1 cm on the left elbow on the front.

7. Abraded abrasion 6 cm x 3 cm on the left side of the back on 1/3rd lower part of the back and one cm below the shoulder bone.

8. Abraded abrasion 10 cm x 5 cm on the left hip on the upper part.

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9. Abraded  abrasion 1/5 cm x 5 cm on the right elbow in the front.

10. Abraded abrasion 1 cm x 5 cm on the right wrist in the front.  Pus was found inside the stomach. One pellet was also recovered from the stomach which was found empty.  The cause of death was peritonitis due to gun-shot injury.  According to the  doctor,  injuries  no.1  to  4  were  surgical injuries.   The  witness  proved  his  postmortem examination report Ext. Ka.7.”

10. Dr. S.K. Jha, posted as Medical  Officer Primary Health

Centre, Sikandra Rao on 1.9.1979 examined Smt. Longshree

and found the following injuries on person:

“1. Contusion 4 cm x 1/5 cm on the left shoulder.

2. Contusion 3 cm x 1.5 cm on the left shoulder.

3. Contusion 5 cm x 2 cm on the outer and middle part of right arm on upper side.

4. Contusion  6  cm  x  2  m  on  the  right  scapular region.

5. Contusion 10 cm x 2 cm on the right side of the back, 7 cm below lower angle of scapula.

6. Contusion 6 cm x 1 cm on the left side of back.

All  the  injuries  were  caused  by  some  hard  blunt object  and were  found to  be  fresh at  the  time of examination.”

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11. Dr.  Jha  also  examined  Chandan  Giri  and  found  the

following one injury on his person:-

“Lacerated wound 1 cm x 0.2 cm x muscle deep on the back of left hand.”

12. According  to  the  doctor,  the  injuries  to  Hiralal,  Aidal

Singh and Chandan Giri could be caused by gun shots while

injuries to Smt. Longshree could be caused by some lathi or

danda.  The doctor further stated that he had written a letter

to Tehsildar Magistrate,  Sikandrarao for recording the dying

declarations of Aidal Singh and Hiralal and their statements

were  recorded.   The  injured  were  in  fit  condition  to  make

statements for which he appended his certificates Exs. Ka.13

and Ka.14.  The Tehsildar Magistrate also obtained the thumb

impression  of  Aidal  Singh  and  signature  of  Hiralal  on  the

statements before him.

13. Smt.  Longshree,  PW5,  wife  of  Hiralal  deceased,  is  an

injured eye-witness.  In her testimony, she clearly stated that

at about 7.30 p.m. in the night, she was inside her house with

the  wife  of  Aidal  Singh and  along  with  the  children  of  her

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family.   At that time,  she was busy cooking food while  her

husband Hiralal was sitting in the chowk along with Chandan

Giri and some others.  About 8 or 10 miscreants had entered

her house armed with guns, lathis and kattas etc. and started

firing as a result of which her husband Hiralal and Chandan

Giri were injured.  Inside the house, the miscreants injured

her and Aidal Singh as well.  The miscreants uttered that they

would destroy the family of Hiralal and they in fact took away

the gun and some other articles.  She also stated that there

was  moonlight  and  lantern  light  and  she  could  identify

accused Ajanti,  Munna Giri,  Sukhpal  and Harpal  who were

otherwise known to her.  The miscreants made their escape

good from the spot.  She was also medically examined and the

doctor  found  number  of  injuries  as  enumerated  in  the

preceding paragraphs.

14. Shri  Ram  Autar  Saxena  PW9,  Tehsildar  (Executive

Magistrate),  Sikandra  Rao stated  that  on  1.9.1979,  he  had

recorded  the  dying  declarations  Ex.Ka15  and  Ex.Ka16  of

Hiralal  and Aidal  Singh.   He also stated that whatever  was

stated before him by the abovementioned two persons, he had

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reduced  the  same  in  writing  as  contained  in  the  two

documents  mentioned  above  and  before  recording  their

statements  had  satisfied  himself  that  the  deponents  had

obtained the certificates of the doctor as well Exs.Ka.13 and

Ka.14.  He had obtained the thumb impression and signature

of  the  deponents  (under  their  signatures)  after  having

recorded their statements which were read over to them.  The

accused  persons  in  their  statements  under  section  313

Cr.P.C.  pleaded  not  guilty  and  consequently  they  were

charged under section 396 IPC .

15. The  prosecution  has  based  its  case  primarily  on  the

evidence  of  the  injured witnesses  Smt.  Longshree  PW5 and

Chandan Giri PW3 respectively.  Smt. Longshree PW5, injured

eyewitness  clearly  stated  in  her  statement  that  she  had

recognized accused persons in the moonlight and the light of

the lantern.  She also stated that she had otherwise known

the  accused  persons.   She  also  stated  that  the  accused

persons  had  injured  her.   The  relevant  portion  of  her

statement reads thus:

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“The criminals had asked me about the goods kept in the house. I had told them about the goods and that the entire kothi is open, search the goods.  All the criminals were open faced.  They had tied cloth on  their  heads.   The  criminals  remained  in  my house for half an hour.  After firing, the criminals searched for articles in the house for half an hour.”

16. Chandan  Giri,  PW3  also  supported  the  entire

prosecution version.  

17. The trial court found the testimony of Bhagwant Singh,

PW2 brother  of  deceased  Hiralal  and Aidal  Singh and PW5

injured  eye-witness  Smt.  Longshree,  wife  of  Hiralal  and

another injured PW3 Chandan Giri credible and trustworthy.

18. The appellants were not strangers to the witnesses.  They

had known each other.  There was adequate moonlight and

the light of the burning lantern.  The trial court analyzed the

prosecution version and the defence version and came to the

clear  conclusion  that  the  prosecution  has  succeeded  in

establishing its case beyond shadow of doubt.    

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19. The trial court found the accused persons guilty under

section  396  IPC  and  sentenced  them to  life  imprisonment.

The accused aggrieved by their conviction by the trial court

preferred appeal before the High Court.  The High Court by

the impugned judgment allowed the appeal.  The State of U.P.

aggrieved  by  the  impugned  judgment  has  preferred  these

appeals.

20. We have  carefully  analyzed  the impugned judgment  of

the High Court and also the judgment of the trial court and

have  also  carefully  perused  the  entire  evidence  on  record.

Certain findings in the impugned judgment of the High Court

are based on no evidence, such as:  

“Thus, it is clear from the evidence on record that neither the appellants intended to commit dacoity nor dacoity took place.  But all the appellants were charged for the offence of dacoity with murder.”

21. This is quite contrary to the evidence on record.  The eye-

witnesses  have  specifically  stated  that  the  accused  persons

had committed dacoity.  The accused had also taken away the

licensed gun and other articles.  So the aforesaid findings of

the High Court are not based on evidence on record.

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22. The  High  Court  in  the  impugned  judgment  also

erroneously observed that-  

“…  the  chief   intention  of  accused  was  not  to commit  robbery,  theft  or  extortion  but  to  commit murder and it was subsequent to the murder that they removed certain property dishonestly.”

23. This finding cannot be supported by evidence on record.

This  finding also  runs contrary to the earlier  finding of the

High Court and is contrary to the evidence on record.   

24. The following findings of the High Court are also contrary

to the evidence on record:

“But prosecution could not prove that dacoity took place  and  two  deceased  were  murdered  during commission of dacoity.”

25. In  the instant  case,  all  the witnesses  have  stated that

they had otherwise known the accused persons and they were

not strangers to them.  In the moonlight and lantern light they

clearly  identified  them.   Therefore,  the  test  identification

parade was really not necessary in this case.   Whether test

identification parade is necessary or not would depend on the

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facts and circumstances of each case.  This court in a series of

cases has taken the view that the test identification parade

under section 9 of the Evidence Act is to test the veracity of

the witness and his capacity to identify the unknown persons

whom the witness must have seen only once but in the instant

case the witnesses were otherwise known to accused persons,

therefore, the test identification parade has no great relevance

in the facts and circumstances of this case.

26. The  High  Court  has  altogether  failed  to  deal  with  the

dying  declarations  of  both  the  deceased  Hiralal  and  Aidal

Singh.   The  High  Court  has  not  correctly  construed  and

analysed the evidence on record. In this case, all the witnesses

have categorically stated that the accused persons committed

dacoity and killed Hiralal and Aidal Singh and injured Smt.

Longshree  and  Chandan  Giri  in  the  incident.   There  was

adequate  light  in  which they  had recognized  these  accused

persons who were otherwise known to them.  

27. The  High  Court  erroneously  set  aside  a  well  reasoned

judgment  of  the  trial  court  which  is  based  on  correct

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evaluation  of  evidence  of  injured  eye-witnesses  and  other

witnesses and dying declarations on record.

28. In the instant case, before the trial court an application

was  filed  that  the  accused  persons  ought  to  have  been

charged  under  section  302  IPC  instead  of  section  396  IPC

which was rejected by the trial court on the ground that the

accused persons were  justifiably charged under section 396

IPC.  In  these  facts and circumstances,  the  Trial  Court  was

justified in arriving at the correct conclusion that the accused

were correctly charged under section 396 IPC and on the basis

of  clear  evidence  on record,  the accused persons were  held

guilty of the offence under section 396 IPC.   

29. The evidence on record clearly reveals that the accused

persons  entered  the  premises  of  the  deceased  Hiralal  for

committing dacoity.  They had looted a licensed gun and other

articles and in the process they had also killed Hiralal  and

Aidal Singh and injured Smt. Longshree and Chandan Gir.  

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30. On careful consideration of the entire evidence on record,

the following conclusions are inescapable:

1. The  impugned  judgment  of  the  High

Court is based on total misreading of the

evidence  of  the  injured  eye-witnesses

PW3  Chandan  Giri  and  PW5  Smt.

Longshree;

2. The High Court failed to appreciate that

in this case, the test identification parade

was not required since the accused were

otherwise  known  to  the  witnesses.  The

conducting  of  test  identification  parade

depends on the facts and circumstances

of each case.  

3. In  the  impugned  judgment,  the  High

Court ought to have considered the entire

case  in correct  perspective  of  the  small

rural  village  background  where  most  of

the people know each other.  They live in

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the  vicinity.  The  test  which  may  be

relevant  for  metros  or  big  cities  cannot

always be  applied  to  small  rural  village

settings.  

4. The  High  Court  in  the  impugned

judgment  has  gravely  erred  in  totally

ignoring the dying declarations of Hiralal

and  Aidal  Singh,  particularly  when  the

dying declarations were recorded by the

Magistrate.

5. The High Court erred in discarding the evidence

of the injured eye-witnesses whose statement is

consistent and corroborated by other evidence on

record.

31. The impugned judgment of the High Court is contrary to

the well settled legal principles which have been crystallized

by  a  series  of  decisions  of  this  court.   In  the  latest

pronouncement of this court in  Ghure Lal  v.  State of U.P.

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(2008)  10  SCC  450,  this  court  comprehensively  dealt  with

series of cases and clearly came to the conclusion as under:  

“A  number  of  instances  arise  in  which  the appellate court would have "very substantial and compelling  reasons"  to  discard  the  trial  court's decision.  “Very  substantial  and  compelling reasons" exist when: I) The trial court's conclusion with regard to the facts is palpably wrong;  II) The trial court's decision was based on an erroneous view of law; III) The trial court's judgment is likely to result in "grave miscarriage of justice"; IV) The entire approach of the trial court in dealing with the  evidence  was  patently  illegal;  V)  The  trial court's  judgment  was  manifestly  unjust  and unreasonable; VI) The trial court has ignored the evidence or misread the material evidence or has ignored  material  documents  like  dying declarations/  report  of  the  Ballistic  expert,  etc. (VII)  This  list  is  intended  to  be  illustrative,  not exhaustive.”

32. In  Ghurey Lal (supra), the court clearly observed that

unless there are compelling reasons, the High Court should

not set aside the judgment of the trial court.  The High Court

must always keep in view that the trial court had advantage of

seeing  the  demeanour  of  the  witnesses  and,  therefore,  the

conclusion of  the trial  court should not be set  aside in the

light hearted manner.  The court dealt with various cases and

observed as under:  

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“The appellate court is given wide powers to review the evidence  to come to its own conclusions.  he appellate court may review the evidence in appeals against acquittal under Sections  378 and  386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record. It can review the trial court's conclusion with respect to  both  facts  and  law.  But  this  power  must  be exercised with great care and caution.”

33. Ordinarily this court would have been very reluctant to

interfere with the judgment of acquittal but in this case for

very substantially and compelling reasons we are constraint to

set aside the impugned judgment of the High Court because

the High Court totally misread the entire evidence on record.  

34. On  consideration  of  the  totality  of  facts  and

circumstances particularly evidence on record, the impugned

judgment cannot be sustained and is, consequently, set aside

and the judgment of the trial court is restored.  Accordingly,

the appeals are allowed.

35. The bail bonds of the respondents are cancelled.  They

are directed to surrender forthwith to serve out the remaining

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sentence and if the accused-respondents do not surrender, in

that event, the State is directed to arrest the respondents and

lodge them before the concerned jail to serve out the sentence.

….……………………..J.      (Dalveer Bhandari)

….……………………..J.      (Harjit Singh Bedi)

New Delhi;

January 12, 2009

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