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PETITIONER: STATE OF UTTAR PRADESH

       Vs.

RESPONDENT: LALLOO & OTHERS.

DATE OF JUDGMENT13/08/1985

BENCH: VARADARAJAN, A. (J) BENCH: VARADARAJAN, A. (J) FAZALALI, SYED MURTAZA

CITATION:  1986 AIR  576            1985 SCR  Supl. (2) 543  1985 SCC  Supl.  379     1985 SCALE  (2)297

ACT:      A.  Murder   trial  -   Evidence  of   eye   witnesses, appreciation of - Probability of their presence at the scene of occurrence of the crime - Section 3 of the Evidence Act.      B. First Information Report - Can the authorship of the First Information Report be doubted, just because the report is long  and contains all the details - Sections 144 and 145 of the  Code of  Criminal Procedure  (Act II  of 1974), 1973 read with Section 114 of the Evidence Act.      C. Conviction and sentence - Where two views leading to the guilt  of the  accused, on  the  evidence  available  on record are  not possible,  conviction is justified - Even in case of  gruesome and  cold-blooded  murder  long  delay  in hearing an  appeal justifies  conversion of  death sentences into one  of life  imprisonment Supreme  Court  Rules,  1966 Order XXII  read with  order XLVI  and Article 142(1) of the Constitution.

HEADNOTE:      Respondent  Laloo   and  three   others  were  charged, convicted, and  sentenced to death for the commission of the offence of murder under section 302 IPC read with section 34 IPC of  the  deceased  Babu  Jaleshwar  Singh  under  bright moonlight and  at about  8 p.m.  On 24.9.1974,  while he was accompanied by  the three  eye witnesses,  Ram Surat (PW 1), Subhan Sain  (PW 2),  Bansidhar (PW 3). The prosecution case was; (a)  that there  was a long standing enmity between the accused and  the deceased  Jaleshwar Singh who was a leading land owner  and agriculturist  of Mangalpura and the Pradhan of that  village for  over 18 or 20 years before the date of occurrence;  (ii)  that  the  deceased  had  stated  in  his complaint Ex. KA-13 dated 14.2.1973 that the accused and the one Chandrika  Mallah were  planning  to  kill  him  due  to election and litigation enmity and were collecting money for that purpose  amongst themselves; (iii) that the accused and others had  moved two  complaints for  the  removal  of  the deceased as  Pradhan of  Mangalpura; that  while  the  first complaint had  been rejected  by the Sub-divisional Officer, Ballia on 10.5.1974, the second 544 complaint was  pending enquiry  before that  Officer at  the time of  his death and factually the deceased accompanied by

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PWs 1  to 3 was returning after attending the case posted on that day; (iv) that while they were returning, at the end of the Moonj  jungle situate  about 1-1/2  furlongs  away  from Mangalpura village  the  accused  respondents  attacked  the deceased with  the tamancha  (country-made pistol)  and daos (long heavy  knives used  for slaughtering goats and cutting wood); (v)  that it  was Lalloo  who fired with his tamancha and the  deceased fell  down after  receiving injury  on his chest and  on his  exhortion to  severe his  neck the others Ganga Dayal  Gond, Sri  Kishun Chamar and Jagan Nath Godaria pounced upon  the deceased  and cut the neck; (vi) that when PWs 1 to 3 shouted in disapproval of what the respondents  were  doing, Lalloo  pointed his  tamancha towards them and threatened to  kill them  and getting  frightened  they  ran towards Gosainpur and after informing Ayodhaya and Sheo that the respondents  had attacked  the deceased  they rushed  to Mangalpura where  they met  Kharag Bahadur (PW 6) and others and informed  them also  about the attack on the deceased by the respondents  accused; (vii)  that the  first information report was written by Raghubans Tiwari (PW 16) of Mangalpura with the  particulars furnished by PW 1 at the spot at about 9 p.m.  On 24.9.74, and later handed over by PW 1 at Bansidh Police Station,  PW 15;  (viii) that  PW 15  left the police station along  with  PW  1  and  others  for  the  scene  of occurrence  at   1.30  a.m.   On  25.9.74   and  began   his investigation at  the spot at 4 a.m.; (ix) that the headless body was  identified to  be that  of the  deceased Jaleshwar Singh by  PWs 1,3,6  and 16  and Bachchalal  (PW 5) - all of whom belonged to Mangalpura; (x) that autopsy on the body bf the deceased  disclosed, incised  wound  severing  the  neck completely, multiple  gun shot  wounds on  the upper part of the front  chest, and abraded contusions over the upper part of the  hip; and (xi) that the doctor opined that death  was due to  severence of  the neck  by a  sharp-edged and  heavy cutting  weapon   and  that  the  injury  to  the  neck  was sufficient in the ordinary course of nature to cause death.      For coming  to the  conclusion  as  to  conviction  and sentence, the  Trial Court accepted the evidence of PWs 1 to 3 who were  Examined as eye witnesses and also the evidence of PW 5 and 6 and  relied upon  the First Information Report given by PW 1. But  on appeal,  the Learned  Judges of  the  High  Court suspected the genuineness of the First Information Report as being that of PW 1 for the reason that it was quite long and contained all the details, rejected the evidence of PWs 1 to 3  about  the  occurrence  and  acquitted  the  respondents, although they found that the 545 factum of  the occurrence of the crime, the prosecution case with A  regard to  its time  and the  weapons  used  in  the assault fully  corroborated by  medical evidence  while  the recovery of  blood fixed  the venue  of the crime. Hence the appeal by the state.      Allowing  the   appeal  and   while  confirming   their convictions, the  Court altered the sentence of death passed on them to that of K imprisonment and ^ HELD: 1.1 A thorough and careful analysis of the evidence on record shows  that the  evidence of  PWs 1 to 3 are true and reliable and  that they were present at the scene and at the time of  the commission  of the  offence. And  this is not a case where two views of the evidence available on record are possible. [555 D-F]      1.2 It  cannot be  said that if there are ten pieces of circumstantial evidence  in a  case, an  inference that  the

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investigating officer  did not  have honest  belief  in  the truth of  the  proceedings  nine  pieces  of  circumstantial evidence, merely  because he  had brought on record even the tenth piece of circumstantial evidence. [551 E-F]      1.3 Exhibit  Ka-1 is  the only first information report in the  case and that it was scribed by PW 16 at the spot on the basis  of particulars  furnished by P.W. 1 at 9 p.m. and handed over  by P.W.1  at the  police station at about 11.30 p.m. On  the same  day and  that only  after a case had been registered on  the basis  of that  first information report, P.W.15 left  the police  station along with P.W.1 and others at  1.30   a.m.  On  25.9.1974  and  reached  the  scene  of occurrence at  4 a.m. To contend that PW 1 is not the author of the  first information  report and it was recorded at the police station  at 11  a.m. On  25.9.1974 on the evidence of P.W.16 who  is a self-condemned witness who had been treated as hostile  to the prosecution will not only be inconsistent but also  incorrect. If  it had  been recorded  only at that time it  is improbable  that copies  thereof would have been delivered by  PW 14 to the higher authorities in the morning of 25.9.1974. [553 B,D]      1.4 No  adverse inference  can be drawn from the cross- examination of  PW 15 to the effect that the first parcha of the case  diary which is dated 25.9.1974 bears the signature of the  Deputy Superintendent  of police  and endorsement of his office  has made  on 28.9.1974  and without  the seal of that office.  That there  was delay  in the  receipt of  the copies of relevant records from the 546 police station in the office of the Superintendent of Police though even  according to  the evidence  of PW  16 which  is unreliable the  first information report was in existence at least at 11 a.m. On 25.9.1974 is incorrect. [552 G-H, 553 A- B]      1.5 The  facts that  P.W.1 was  seen by PW 6 soon after the occurrence,  and he  got the  first  information  report scribed by  PW 16  at 9 p.m. On 24.9.74 itself and handed it over at the police station at 11.30 p.m. On the same day and accompanied PW  15 from  the police  station to the scene of occurrence at  1.30 a.m.  On 25.9.74 probablise the evidence of PW  1 that he had gone to Ballia on 24.9.74 and left that place for  Mangalpura by a bus along with the deceased. [553 G-H, 554 A B]      1.6 The  name of  PW 1 not finding a place in the order sheet of  the Trial  Court at  Ballia is not a sure base for holding that  he could not have gone to Ballia on 24.9.1974. Equally the  evidence of PW 2 to the effect that much jungle falls in  the first  route and  therefore people  go by that route only  during the day time while the second route which is plain  is normally taken by the commutors during night is convincing. The  High Court  failed to take note of the fact that it  was night  time and PW 2 would have had the company of the  deceased and PW8 1 and 3. Further the examination of PW 15  at Mangalpura  by PW  1 to 3 on 25.9.1974 itself also probablises their  presence and witnessing the occurrence of the crime.  PW 1 alone belongs to Mangalpura while PWs 2 and 3 belongs to different villages. PWs 2 and 3 are independent witnesses and  PW 1  is a  respectable witness  as he  is  a member of  the Gram  Sabha and President of the Co-operative Society, though  admittedly he  was the  pairokar    of  the deceased in  the case  for which  he had  gone to  Ballia on 24.9.1974 which  has a little importance. [554 B-G, 555 A,D- E]

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JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION :  Criminal Appeal No. 320 of 1977.      From the  Judgment and  Order dated  27.10.1976 of  the Allahabad High Court in Criminal Appeal No. 1411 of 1976.      Dalveer Bhandari  and Manoj  Prasad for the appellants. R.K.Garg, L.R.  Singh, N.M.  Popli and  V.J. Francis for the respondents.      The Judgment of the Court was delivered by 547      VARADARAJAN, J.  This appeal by special is by the State of   Uttar Pradesh  against the acquittal of the respondents Lalloo, Ganga  Dayal Gond,  Sri Kishun Chamar and Jagan Nath Godaria by  the High  Court, reversing  the judgment  of the trial court which convicted them and sentenced them to death under section  302 IPC  for the murder of one Babu Jaleshwar Singh at about 8 p.m. On 24.9.1974.      The case  of the  prosecution has  been set  out in the judgments  of   the  courts  below.  Therefore,  it  is  not necessary to set out in detail the facts of the case in this judgment. Suffice  it to  say that  the prosecution  case is that there  was long standing enmity between the respondents and the  deceased Jaleshwar  Singh who  was a  leading  land owner and  agriculturist of  Mangalpura and  the Pradhan  of that village  for 18  or 20  years before he was murdered at about 8  p.m. On  24.9,1974 at  the end  of the Moonj jungle situate about  1-1/2 furlongs  away from  Mangalpura village when he  was coming  along the footpath running through that moonj jungle in the company of Ram Surat (PW 1), Subhan Sain (PW 2),  Bansidhar (PW  3) by  the respondents attacking him with a  tamancha (country-made  pistol) and daos (long heavy knives used  for slaughtering goats and cutting wood). There was bright  moonlight during  that night it being the day of Bhado Sudi  9 and  there were also torch-lights with P.Ws. 1 and 3.  PWs. 1  to 3 belongs respectively to Mangalpura, Ram Nagar and  Shankerpura which  is situate  about 1-1/2  miles north of  Mangalpura. P.W.1  is Adhyaksha (President) of the Co-operative Society of Mangalpura besides being a member of the Gram  Sabha of  that village.  The respondent Jagan Nath belongs  to  Gosainpur  which  being  a  nearby  village  is included in  Mangalpura Gram  Sabha while  the  other  three respondents belong  to Mangalpura  itself.  The  respondent, Jagan Nath  is also  a member  of the same Gram Sabha. There was admittedly  long-standing enmity between the respondents and the  deceased  Jaleshwar  Singh  right  from  1959.  The deceased  had   stated  in   his  complaint  Ex.Ka-13  dated 14.2.1973 that the respondents and one Chandrika Mallah were planning to  kill him  due to election and litigation enmity and  were   collecting  money   for  that   purpose  amongst themselves.  The   respondents  and  others  had  moved  two complaints for  the removal  of the  deceased as  Pradhan of Mangalpura. m  e first of those complaints had been rejected by the Sub-Divisional Officer, Ballia on 10.5.1974 while the second was  pending enquiry  before that Officer at the time of his  death. The  deceased accompanied  by PWs  1 to 3 was returning on  24.9.1974 from  Ballia where  he had  gone  in connection with  the enquiry into the second complaint which had been  posted on  that day.  The facts  relating  to  the admitted enmity between the respondents and the deceased are mentioned in para 10 of the trial court’s judgment. 548      When the deceased was going a little ahead of PWs. 1 to 3 in  the eastern  end of  the moonj jungle, the respondents emerged  from   the  moonj  plants,  armed,  Lalloo  with  a

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tamancha, Sri  Kishun and  Ganga Dayal  with daos  and Jagan Nath with  a whip.  Lalloo fired  with his  tamancha and the deceased fell down after receiving  injury  on his  chest. Therefore, Lalloo exhorted the other respondents for  cutting the  neck of the deceased whereupon the other respondents pounced upon the deceased for severing his neck.  When P.Ws  1 to  3 shouted in disapproval of what the respondents  were doing,  Lalloo  pointed  his  tamancha towards them  and threatened  to kill them. They, therefore, got frightened and ran towards Gosainpur and after informing Ayodhaya and  Sheo that  the respondents  had  attacked  the deceased they  rushed to  Mangalpura where  they met  Kharag Bahadur (PW  6) and  others and informed them also about the attack on  the deceased by the respondents. Subsequently all of them  went to  the scene  of  occurrence  and  found  the deceased’s headless body lying in a pool of blood.      The first  information report  was written by Raghubans Tiwari (PW  16) of Mangalpura with the particulars furnished by PW  1 at  the spot  at about  9 p.m. On 24.9.1974. It was handed over by P.W.1 at Bansidh police station at 11.30 p.m. On 24.9.1974  to the  Sub-Inspector of police P.W.15. P.W.15 left the  police station along with P.W 1 and others for the scene of  occurrence at  1.30 a.m. On 25.9.1974 and he began his investigation at the spot at 4 a.m.      The headless  body was  identified to  be that  of  the deceased Jaleshwar Singh by PWs. 1,3,6 and 16 and Bachchalal (P.W 5)  all of  whom belong  to Mangalpura.  The trunk  was further identified  to be  that of  the  deceased  Jaleshwar Singh with  reference to  the towel(Ex.  II), ganj (Ex.III), kurta (Ex.IV),  dhoti (Ex.V),  chhata (Ex.VI), hand-kerchief (Ex.XI), letter  (Ex.XII) addressed to the deceased on which he had written that he had given Rs. 10 to PW 1 for bringing witnesses and  thumb-impression of  the deceased  which  had been compared  with his undisputed thumb impression. Autopsy on the  body of  the deceased  Jaleshwar Singh disclosed (1) incised  wound  severing the  neck completely; (2) multiple gun shot wounds on  the upper part of the front chest and (3) abraded contusions over the upper part of the hip. The doctor opined that death was due to severance of the neck by a sharp-edged and heavy cutting weapon and that the injury to the neck was sufficient in the ordinary course of nature to cause death.      The entire  prosecution case  against  the  respondents rests on  the evidence  of PWs  1 to  3 who were Examined as eye-witnesses and 549 also on  the evidence  of PWs  5 and 6. The learned Sessions Judge accepted  their evidence  and relied  upon  the  first information report  given by  PW 1  and found  that all  the respondents had  committed the  brutal murder  of  Jaleshwar Singh on  account of  the admitted enmity and he accordingly convicted and sentenced them to death under section 302 read with section  34 I.P.C.  But on appeal the learned Judges of the High  Court  suspected  the  genuineness  of  the  first information report  as being  that of  PW 1 and rejected the evidence of  PWs 1  to 3  about the occurrence and acquitted the respondents although they found:           "The medical  evidence leaves no room for doubt as           to  the   factum  of   the  occurrence,   and  the           prosecution case  with regard  to its time and the           weapons used  in the  assault also  receives broad           corroboration from  it. The  place  of  occurrence           (near the  eastern end  of- the  jungle  of  moon;           plants in  village Mangalpura) is also fixed up by           the recovery of blood from there."

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    The case  of the prosecution is that the informant PW 1 got the  first information  report scribed  by PW  16 at the spot at  about 9  p.m. On  24.9.1974 and presented it at the police station  at 11.30  p.m. On  the same  day to the Sub- Inspector of  police PW  15 and  that PW  15 left the police station  after   registering  the   case  to  the  scene  of occurrence along  with PW  1 and  others  at  1.30  a.m.  On 25.9.1974 and began his investigation at 4 a.m. The names of the respondents as the assailants of the deceased as well as the names  of PWs.  1 to  3 as  those of  eye-witnesses  are mentioned in  the first information report and all the three witnesses had  been examined  by PW  15 on  25.9.1974 itself although,  as   stated  earlier,   PW  1  alone  belongs  to Mangalpura and  PWs. 2  and 3  belong to Shankerpura and Ram Nagar respectively.  The prosecution  relied on the evidence of PW  5 who  has stated  that he  saw all  the  respondents sitting and  talking under cover of the munjahani near about the scene  of occurrence at about nightfall on 24.9.1974 and that at  about 8.30 or 8.45 p.m. On that day he heard shouts that the  respondents whose  names  he  has  mentioned  were beating Babu  Jaleshwar Singh.  On hearing those shouts PW 5 ran and  on the way he met PW 6 and others and he went along with them  to the  scene of  occurrence and saw the headless body of  the  deceased  Jaleshwar  Singh  lying  there.  The evidence of PW 6 is that when he was sitting at his house at about 8  p.m. On  the day  of occurrence  he heard the alarm "Run up  people, I  am being  killed". He  took up lathi and lantern and asked his companions to proceed, and when all of them were about 50 yards 550 away from  the out-skirts  of the village, PW 6 saw PW 1 and others coming  and PW  1 told  him that  Lallo had  shot the deceased Jaleshwar  Singh with  pistol, that  Sri Kishun and Ganga Dayal  armed with  daos and Jagan Nath armed with Kora (whip) were  sitting on the chest of the deceased and Lalloo had said  "cut the neck of salaPradhan" and that they (PWs 1 to 3)  ran away  from the scene when Lalloo aimed and pistol at them.  Thereafter PW  6 and  others went  to the scene of occurrence and  found the  headless body  of Jaleshwar Singh lying there, and subsequently PW 1 got the report written by PW 16 and proceeded with it to the police station.      The learned Judges of the High Court rejected the first information report of two grounds, namely, that it is quite long and  contains all  the details and that PW 1 is not the author of  its contents. They rejected the evidence of PWs 1 to 3  as unreliable  but accepted the evidence of PW 16 that he wrote  the first information report at the police station in the  presence  of  his  own  father  and  others  to  the dictation of  PW 15.  They acquitted the respondents and set aside the conviction and the sentence awarded to them by the trial court.      Mr. Dalveer Bhandari, learned counsel for the appellant State of Uttar Pradesh took us through the evidence of PWs 1 to 3  and the  other witnesses as also through the judgments of the courts below and submitted that the learned Judges of the High  Court were  not justified  in holding that PW 1 is not the author  of  the first information report and that it was written by PW 16  at the  police station  to the dictation of PW 15. He also submitted  that the  learned Judges  of the  High Court were not  justified in  rejecting the  evidence of  the eye- witnesses. PWs.  1 to  3 also of PWs. 5 and 6 and acquitting the respondents.  On the  other hand, Mr. R.K. Garg, learned counsel  for   the  respondents  submitted  that  the  first information report is not the "brain child" of PW 1 and that

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it had been prepared at 11 a.m. on 25.9.1974 as stated by PW 16 after  PW 15 had visited the scene of occurrence and seen the injuries  found on  the headless  body of  the  deceased Jaleshwar Singh. He submitted that the evidence of PW 1 that he had  gone to  Ballia in  connection with the enquiry into the  complaint   filed  for  the  removal  of  the  deceased Jaleshwar Singh  from the  office of  Pradhan of  Mangalpura village and that he was accompanying h m from Ballia and was present at  the time  of the occurrence is not believable at all having  regard to the fact that although it is stated in the first  information report  that  PW  1  went  to  Ballia alongwith the  deceased Jaleshwar  Singh he  has admitted in his evidence that he did not go with the 551 deceased to  Ballia  and  stated  that  he  went  to  Ballia separately and  reached the  office  of  the  Sub-Divisional Officer only  at about  1.30 p.m. On 24.9.1974 and also that his name  is not  mentioned in  the order  sheet relating to that case.  He further  submitted that the learned Judges of the High  Court were  justified in rejecting the evidence of not only  PW 1  but also  of PWs.  2 and 3 as unreliable and that it  would appear  from the  fact that the investigating officer had gone in search of circumstantial evidence by way of dress,  shoes, letter,  thumb-impression etc.,  mentioned above for  identifying the  headless trunk  as that  of  the deceased  Jaleshwar  Singh  that  he  did  not  believe  the testimony of  PWs. 1  to 3  who  are  put  forward  as  eye- witnesses in the case.      In our  opinion the  submission that  the investigating officer PW 15 had no faith or honest belief in the testimony of PWs.  1 to 3 regarding the identity of the headless trunk as that  of the  deceased Jaleshwar  Singh merely because he had looked  up for  other circumstantial evidence to connect the headless  trunk with the deceased Jaleshwar Singh has to be stated  only to be rejected, for it is impossible to hold from the  fact that  the investigating officer looked up for some corroborative  circumstantial evidence  that he did not have faith  or belief  in the  testimony of  PWs. 1  to 3 as regards the  identity and  therefore it  is not  possible to rely upon the evidence of PWs.1 to 3 as regards the identity and therefore  it is  not possible to rely upon the evidence of PWs 1 to 3 that they witnessed the occurrence. It will be unreasonable  to  hold  chat  if  there  are  10  pieces  of circumstantial evidence  in a  case an  inference  that  the investigating officer  did not  have honest  belief  in  the truth of  the preceding  9 pieces of circumstantial evidence merely because he had brought on record even the tenth piece of circumstantial evidence.      The learned Judges of the High Court were not justified in basing  their conclusion  that PW  1 is not the author of the first information report and that it was recorded at the police station at 11 a.m. On 25.9.1974 on the evidence of PW 16 who  is a  selfcondemned witness  who had been treated as hostile to the prosecution. It is not possible to accept the evidence of  PW 16  who was admittedly present in the police station along  with his  father and others and had consulted his father  before writing  the first information report and wrote it  after his  father asked  him to  write it  that he wrote it  to the  dictation of PW 15 at 11 a.m. On 25.9.1974 and dated  it as 24.9.1974 as desired by PW 15. The evidence of PW 16 is highly discrepant, for he has stated in one 552 portion of  his evidence  that along  with  his  father  and others he  reached the  police station  at about  10 a.m. On 25.9.1974 and  returned from  there at about 11 a.m. leaving

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only PW  1 at that place. In another portion of his evidence he has  stated that PW 15 came to the scene of occurrence at 8 or  9 a.m.  On 25.9.1974 and that he (PW 16) started along with others to proceed to the  police  station for the scene of occurrence only at about 9 a.m. On  that day  when PW 15 arrived. he has further stated PW 15  started for  the scene of occurrence after he and the other persons  reached the  police station and that too only after the  first information report was lodged at the police station. He  has also  stated that  he too accompanied PW 15 when he  started from the police station at 10 or 10.30 a.m. and that  he does  not know  at what  time PW 15 reached the scene of  occurrence. Thus,  it is seen that PW 16 has given highly discrepant  evidence regarding  the time  at which he reached the  police station along with his father and others including PW  1 as also about the time at which he claims to have written  the first  information report to the dictation of PW  15 after  getting the  approval  of  his  father  for writing the same.      The evidence  of Uma  Shankar Upadhya  (PW 10)  who was Head Constable  at Bansidh  police station is that PW l came to the  police station  at 11.30  p.m. On 24.9.1974 with the first information  report (Ex.Ka-1) and that on the basis of that report  he prepared the check report (Ex.KA-21). It has been elicited  in his  cross-examination that  Constable Ram Naresh Singh  (PW 14)  left the  police station carrying the special reports  to his  superior officers  at 6.05  a.m. On 25.9.1974. In  answer to  questions put  to  him  in  cross- examination PW  14 has  stated that  he carried  the special reports to  his superior officers from the police station in the morning  of 25.9.1974. The investigating officer (PW 15) has stated  in his  evidence that after receipt of the first information report  at the police station in his presence he took  up  investigation  immediately  and  left  the  police station to  the scene  of occurrence  along with  PW  1  and others at about 1.30 a.m. On 25.9.1974 and reached the scene of occurrence  at about 4 a.m. after some delay as he had to cross a  river on the way and wait for some time to call the boats-men. No  doubt it  has been elicited from PW 15 in the cross-examination that  the first  parcha of  the case diary which is  dated 25.9.1974  bears the signature of the Deputy Superintendent of  Police made on 28.9.1974 but not the seal of that  office. From  that  fact  alone  it  could  not  be inferred that  there was  delay in the receipt of the copies of relevant records from the police station in the 553 office of the Superintendent of Police though it may be that the A  endorsement in  that office  had been  made  only  on 28.9.1974, for even according to the evidence of PW 16 which is unreliable  the first information report was in existence at least at 11 a.m. On 25.9.1974. In these circumstances, we accept the  evidence of  PW 16  and find that Ex.Ka-1 is the only first  information report  in the  case and that it was scribed by  PW 16  at the  spot on  the basis of particulars finished by  PW 1  at 9  p.m. and handed over by PW 1 at the police station  at about 11.30 p.m. On the same day and that only after  a case  had been registered on the basis of that first information report PW 15 left the police station along with PW  1 and  others at 1.30 a.m. On 25.9.1974 and reached the scene  of occurrence at 4 a.m. The learned Judges of the High Court,  in our  opinion, erred grievously in holding on the unreliable  evidence of  PW  16  alone  that  the  first information report  (Ex.Ka-1) was  recorded  at  the  police station at  11. a.m.  On 25.9.1974.  If it had been recorded only at that time it is improbable that copies thereof would

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have been  delivered by  PW 14  to the higher authorities in the morning of 25.9.1974 itself.      The learned  Judges of the High Court have rejected the evidence of PW 1 for two reasons, namely (1) that whereas he had stated  in the  first information report that he went to Ballia along with the deceased on 24.9.1974 he has stated in his evidence that he went to Ballia only later at about 1.30 p.m. On  that day  and did  not accompany  the deceased from Mangalpura and (2) that the name of PW 1 is not mentioned in the  order-sheet   of  the  Sub-Divisional  Officer,  Ballia relating to  the case  in connection with which the deceased had  gone   to  Ballia  on  that  day.  No  doubt  there  is discrepancy between  the recital  in the  first  information report and the evidence of PW i on the question whether PW 1 went along  with the  deceased to Ballia on 24.9.1974 or had gone to Ballia separately and met the deceased at that place at about  1.30 p.m.  On that  day.  It  is  not  a  material discrepancy. It  would appear  from the  fact  that  on  the letter (Ex.XII) an endorsement had been made by the deceased to the  effect that on 24.9.1974 he had given Rs. 10 to PW 1 for bringing  witnesses that PW 1 who was his pairokar might have gone  to Ballia with or without witnesses on 24.9.1974. It he  had not  gone to  Ballia on  that  day  and  had  not accompanied the deceased from Ballia when he left that place for Mangalpura  it is not probable that PW 1 would have been seen by  PW 6 soon after the occurrence or he could have got the first  information report  scribed by PW 16 at 9 p.m. On 24.9.1974 itself and handed it over at the police station at 11.30 p.m. on the same day and accompanied PW 15 from 554 the police  station to  the scene of occurrence at 1.30 a.m. On 25.9.1974. Therefore, we accept the evidence of PW 1 that he had  gone to  Ballia on 24.9.1974 and had left that place for Mangalpura  by a  bus along  with the  deceased and  was present at  the time  of occurrence  and had  witnessed  the same. The  learned Judges of the High Court had not rejected the evidence of PW 2 that on 24.9.1974 he had been to Ballia to meet  his ailing  relation Shamshuddin  Sain at Baheri in Ballia and  was in  his house  upto 4  or 4.30  p.m. He  has stated that  he thereafter  boarded the  bus  in  which  the deceased and  PW 1 were seated for proceeding to his village for which he had to get down from the bus and cross a river. They have  rejected the evidence of PW 2 that he was present along with  the deceased  at the  time of the occurrence and had seen the occurrence merely because after one crosses the ’dah’ (river) there are two routes to proceed to Shankerpura one of  them going from the ghat towards Shankerpura and the second towards  Mangalpura on  the west  and then  north  to reach Shankerpura, and the learned Judges thought that it is improbable that  PW 2  would have  taken the  route which is longer by  1 or  1-l/2 miles  instead of  the shorter  route proceedings from the ghat. The learned Judges have failed to give the  importance which it deserves to the evidence of PW 2 that  much jungle  falls in  the first route and therefore people go  by that route only during day time and the second route is  plain and  therefore they  go through  that  route during night. They have also failed to take note of the fact that it  was night  time and PW 2 would have had the company of the  deceased and  PWs. 1 and 3, if he went by the longer route and  would have  had to go all alone if he went by the shorter route  running through  the ghat. The learned Judges have rejected  the evidence  of PW  3 who  is  a  trader  in bullocks merely  because he  has stated in his evidence that on 24.9.1974 he went to Ballia for purchasing a weak bullock whereas he  had purchased  a stronger  bullock for  Rs. 1200

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from near  about his  village a  few days  later. They  have observed that  it is improbable that PW 3 would have gone to Ballia on  24.9.1974 for  purchasing  a  weak  bullock  when strong bullocks were available in neighbourhood itself. PW 3 who trades in bullocks might purchase weak as well as strong bullocks depending upon the need as rightly submitted by Mr. Dalveer Bhandari.  The fact that PW 3 had gone to Ballia for purchasing a  weak bullock  is not  a sufficient  reason for disbelieving his  evidence that  he had  gone to  Ballia  on 24.9.1974 for  purchasing a bullock and that he travelled by the bus  in which  the  deceased  and  PWs.  1  and  2  were travelling on  their return  from Ballia  on  that  day.  As stated earlier  the name of not only PW 2 but those of PWs.1 and 3 as eye-witnesses are mentioned 555 in the first information report which has been found to have been recorded  at 9 p.m. itself at the spot and to have been handed over  at Bansidh  police station at 11.30 p.m. On the same day.  PWs 1  to 3  have all  been examined  by PW 15 at Mangalpura on 25.9.1974 itself. It is not probable that they would have been easily and readily available for examination on 25.9.1974 itself if they had not been present at the time of the occurrence and had not witnessed the occurrence. PW 1 alone belongs  to Mangalpura  while PWs  2 and  3 belong  to different villages  as  already  mentioned.  We,  therefore, accept the  evidence of  PWs 2 and 3 as well regarding their presence at  the time  of the  occurrence and witnessing the scene. PWs. 2 and 3 are independent witnesses, and PW 1 is a respectable witness  as he is a member of the Gram Sabha and President of  the Co-operative  Society though admittedly he was the  pairokar of  the deceased  in the case for which he had gone  to Ballia  on 24.9.1974.  The name  of  PW  1  not finding a  place in  the order sheet is not a sure basis for holding that  he could not have gone to Ballia on 24.9.1974. PWs. 1  to 3  have deposed about the occurrence as mentioned above, and we are of the opinion that there is no convincing reason for  rejecting their  evidence as unreliable and that the learned  Judges of  the High Court were not justified at all in  rejecting their  evidence  for  the  flimsy  reasons mentioned by  them. We  are also  of the  opinion  that  the learned trial Judge was absolutely justified in acceping the evidence of  the prosecution  witnesses and  convicting  the respondents for  the offence  of murder and that the learned Judges of  the High  Court had  not justification whatsoever for reversing  that judgment  and acquitting the respondents This is not a case where two views on the evidence available on record  are possible. We, therefore, allow the appeal and affirm that  of  the  learned  trial  Judge  convicting  the respondents for  the offence  of murder  of Jaleshwar Singh. But though  the case  is of  gruesome and coldblooded murder and the learned Sessions Judge was justified in awarding the sentence of  death  having  regard  to  the  fact  that  the occurrence took  place over  a decade  ago, we  sentence the respondents to undergo imprisonment for life. The bail bonds of the  respondents who  are on bail are cancelled, and they shall be  taken into-  custody  forthwith  for  serving  the remaining part of the sentence. S.R.                                         Appeal allowed. 556