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PETITIONER: STATE UTTAR PRADESH

       Vs.

RESPONDENT: NAHAR SINGH (DEAD) & ORS.

DATE OF JUDGMENT:       18/02/1998

BENCH: G.T. NANAVATI, SYED SHAH MOHAMMED QARDRI

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T QUADRI, J.      These four  appeals arise  from the  common judgment of the Division Bench of the Allahabad High Court dated October 3, 1985,  in four  criminal appeals (Nos. 1846 of 1984, 1930 of 1984,  2870 of  1971 and  2871 of 1984) and Referred Case No.5 of  1984. The  Allahabad High  Court  allowed  Criminal Appeal No.  1846 of  1984 filed  by Nahar  Singh  (A-1)  and Criminal Appeal  NO. 1830  of 1984  filed by Shishupal Singh and Ram  Gopal, A-2 and A-6 respectively; dismissed Criminal Appeal No.  2970 of 1984 filed by the State of Uttar Pradesh against the  acquittal of  Liyaqat Ali  (A-3), Rakshpal Sing (A-4, Durgpal  Singh (A-5), Bhagat Singh (A-7), Hari Shankar Singh (A-5),  Hari Shankar  Singh (A-8)  and Criminal Appeal No. 2871  of 1984  against the  acquittal of  Brijendra  Pal Singh and  Satendra Pal  Singh. The above said eight persons (A-1 to  A-8) and Brijendra Pal Singh and Satendra Pal Singh were tried  by the  learned IIIrd  Additional  District  and Session Judge,  Ethane in  Sessions Trial  No.43 of 1981 and Sessions Trial No. 144 of 1981, respectively, clubbing those two cases  together, for  various offences  punishable under different provisions of Indian Penal Code indicated below.      By judgment  dated 3rd July, 1984, the learned Sessions Judge found Nahar Singh (A-1) quality of offences punishable under Sections  148, 302  (simplicitor), 449  and  201  IPC, sentenced him  to death  under Section  302 IPC,  subject to confirmation by the High Court; sentenced him to undergo two years’ rigors  imprisonment under  Section  148  IPC,  seven year’s rigors  imprisonment under  Section 449  IPC and four years’  rigorous   imprisonment  under   Section  201   IPC. Shishupal Singh (A-2) and Ram Gopal (A-6) were found quality of offences under Sections 148, 302/149, 449 and 201 IPC and were  sentenced  to  undergo  imprisonment  for  life  under Section 302/149, IPC, two years’ rigorous imprisonment under Section 148  IPC, seven years under Section 449 IPC and five years’ rigorous  imprisonment under  Section  201  IPC.  The sentences of imprisonment were directed to run concurrently. The other  accused persons,  namely, Liyaqat  Ali,  Rakshpal Singh, Durgpal  Singh, Bhagat Singh, Hari Shankar, Brijendra Pal Singh  and Satendra  Pal Singh, were held not quality of

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offences punishable under Section 147, 148, 392/149, 449 and 201 IPC  and they  were accordingly  acquitted  of  all  the charges levelled against them.      The events  leading  to  the  ghastly  murders  on  the fateful day,  October 4,  1980, had  their  genesis  in  the murder of  Kunwar Pal  Singh, father of Nahar Singh in 1978, in respect  of which  he gave a complaint against Ram Gopal, Vijay Pal, Shyam and Bhupinder Singh. Thereafter, there have been murders  allegedly by  the members of the rival groups. In the  instant case,  the case set up by the prosecution is that on  that day  at about  6.30 P.M.,  Ram Gopal, his son, Satendra Pal Singh (PW-1) and his brother Krishan Gopal (PW- 2) were sitting at the Baithak of his house in village Patna and were  talking to Saheb Singh, resident of Nagla Madhupur (father-in-law of  his sons,  Jitendra  Singh),  when  Nahar Singh, Shishupal  Singh, Ram  Gopal (another  person of  the same name)  all residents  of village  Patna, Bhagat  Singh, resident of  village Lakhnai, Hari Shankar (brother of Nahar Singh), Liyaqat  Ali, Durgpal  Singh, Rakshpal Singh, Bhagat Singh, Vijendra  Pal Singh,  Hari Shankar  and Satendra  Pal Singh Accompanied  by seven or eight unknown persons arrived there armed with guns, pistols, spears and lathis and caught hold of  Ram Gopal who was shot dead by Nahar Singh, Some of them then  present uttered  that Vijay  Pal Singh And Manpal were at  their houses.  The then  proceeded to  the house of Vijay Pal  Singh where  Nahar Singh  fired at Manpal causing his instantaneous  death. On  seeing this,  Vijay Pal  Singh rushed to  a room  inside the  house, bolted  the door  from inside but  the followed  him, broke  open the door with the help of  axe and  then Nahar  Singh fired at Vijay Pal Singh who died  then and  there. They  dragged the  dead bodies of Manpal and  Vijay Pal  Singh to the house of Ram Gopal where Nahar Singh again fired at the dead body of Ram Gopal. Then, all the  three dead  bodies were  dragged to  the open  land lying behind the Junior High School, put them on the heap of dung cakes  and lit  fire to  them. They kept a watch on the road near Junior High School upto 5.00 A.M. On early morning of 5th  October, 1980, PW-1 went to the police station along with the written report already prepared at his house in the night at  about 2.00 A.M. and handed over the same (Exh. Ka) in the  police station  to the Head Constable, Pyare Lal, at 7.00 A.M.,  who prepared  check report (Exh.Ka-13). Rajender Singh   Asthana,   Sub-Inspector   (PW-16)   took   up   the investigation. He  found three half burnt dead bodies on the vacant  land  behind  the  Junior  High  School,  Patna.  He prepared inquest  report and  sent the dead bodies for post- mortem  examination   through  Constable  Gajender  Pal  and Rajender Pal. Thereafter, he recorded the statements of PWs. 1,2,3 and  5 (eye witnesses). proceeded to house of deceased Ram Gopal,  prepared recovery  memo of  empty cartridges and collected the  blood stained earth the plain earth which was found in  front of  his house. He then went to the houses of Vijay Pal and Manpal, the victims. He noticed the marks of dragging of  the dead bodies from their houses to the Junior High School  where the  bodies were dept on the heap of dung cakes and  burnt. He also found blood at two places in front of the  house of  Vijay Pal  and also  inside the  house and collected the  blood  stained  earth  and  plain  earth  and prepared recovery  memo. He  found ten  pellets and two wads inside one  of the rooms of the house of Vijay Pal, where he was murdered.      Dr.  O.P.   Vaidya  (PW-4)  conducted  the  post-mortem examination on  the remains  of the bodies of the said three deceased persons  and prepared  report (Exh.Ka-3). He opined that the  burnt bones  and parts  of the  body were of human

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beings. He  could not  ascertain the sex, age and stature of the  persons   whose  remains   were  sent  for  post-mortem examination. He,  however, opined  that the  death  was  the result of  the fire  arm injuries  sustained by the deceased persons. In  the test  identification held at District Jail. Etah on   31st  March, 1981.  Vijender Pal  and Satender Pal were  identified  by  the  prosecution  witnesses  but  Hari Shankar could not be identified by them.      On  the   application  of   the  accused   persons  for investigation by  CID, the  case was  entrusted to  Devinder Singh (PW-17),  CB CID  Inspector, who  after completing the investigation  submitted   the  chargesheet  against  eleven persons of  whom one  Khajanchi was  discharged by the trial court under Section 227 Cr. P.C. The cases proceeded against the remaining  ten  persons  noted  above.  The  prosecution produced eighteen  witnesses out of whom PWs.1 to 3 and PW-5 are eye  witnesses. PW-1  is the son and PW-2 is the brother of the  deceased Ra,  Gopal; PW-3,  Anusuiya, a girl of nine years is the daughter of Manpal and PW-5, Kaila Devi, is the widow of  Vijay Pal  Singh. On consideration of the material on  record,   the  learned  IIIrd  Additional  District  and Sessions Judge found the above said three accused quality of offences and awarded them various sentences noted above, and acquitted the remaining seven accused.      It has already ben mentioned that on appeal by the said convicted accused  (A-1, A-2  and A-6),  the High  Court set aside the  conviction and sentence and allowed their appeals and dismissed  the appeals  filed by  the State  against the acquittal of the seven accused.      In these  appeals, it  is brought  to our  notice  that Nahar Singh  (A-1), who was on bail, was murdered on October 20, 1986.  The appeal  relating to  Nahar Singh,  therefore, abated.      In the  appeal relating  to  Shishupal  Singh  and  Ram Gopal, Sri G.K. Mathur, the learned senior counsel appearing for the State of Utter Pradesh, has contended that the trial court has  correctly assessed  the evidence  on  record  and after elaborate  discussion found  A-2 and  A-6  quality  of offences charted  and that  the High Court was not justified in acquitting  A-2 and A-6 for reasons which are trivial and contrary to  the evidence.  The learned counsel for the said respondents supported  the reasons  given by  the High Court and argued that after thoroughly examining the evidence, the High Court found them not quality and it is not a case which warrants interference in the appeal against acquittal.      To appreciate  the contentions  of the learned counsel, we have  gone through  the judgments  of the trial court and the High  Court and  the evidence on record. The trial court believed the  evidence of PW-1 (an eye witness) who spoke to the fact  that Nahar  Singh and  Shishupal Singh  were armed with guns  and Ram  Gopal was  armed with Ballam (spear) and they were amount the bandits who committed the murder of the deceased Ram Gopal. The evidence of PW-1 was corroborated on all the  material facts  by PW-2  (another eye witness). The statement of  the third  eye witness, PW-3, although a child witness, was  also relied  upon by  the trial  court, noting that she  was consistent  in her  statement that Nahar Singh and Shishupal  Singh were  armed with  gunned and  that  Ram Gopal  was  armed  with  Ballam  (spear)  when  Nahar  Singh murdered her  father in  front of  the house  of  Vijay  Pal Singh. She  specifically stated  that Nahar  Singh fired  at Vijay Pal  Singh from  his gun  and Vijay  Pal Singh died of gunned shot. The presence of those witnesses was believed by the trial  court as well as by the High Court at the time of occurrence. PW-5,  yet another eye witness, also stated that

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on the  date of  occurrence at  about 6.30  P.M., there  was twilight and a lamp was also burning in the house when Nahar Singh, Shishupal  Singh and  Ram Gopal  entered  her  house. Nahar Singh  dragged Vijay  Pal out  of Kotha  and Vijay Pal Singh was  murdered by  Nahar Singh  stating that  he  alone would kill  him. Thus, statements of PWs.1 and 2 established that Nahar  Singh had  murdered the  deceased Ram  Gopal and that of  PWs.3 and 5 that he also committed murder of Manpal and Vijay Pal and that at that time Shishupal Singh was also armed with  gun and  Ram Gopal was armed with spear. Relying on the oral evidence of the above said eye witnesses and the evidence of  Dr. O.P. Vaidya (PW-4) the trial court found A- 1, A-2 and A-6 quality of offences charged.      The High Court accepted the testimony of PWs. 1,2,3 and 5 and that of PW-4 (Doctor) and held that it was established that Ram  Gopal, Manpal  and Vijay Pal were done to death in the morning  of 4th  October, 1980.  However, observing that though Ram  Gopal (A-6)  was said  to have  been armed  with spear, according to the evidence of their witnesses recorded by the  trial court,  yet no  weapon or role was assigned to him in  the FIR,  the  High  Court  concluded  that  it  was difficult to  hold that  the prosecution  has  succeeded  in proving his  quilt and  set  aside  the  conviction  of  and sentence awarded  to A-6.  Regarding Shishupal  Singh (A-2), the High  Court noted  that he  was said  to have been armed with gun  by the  witnesses before  the court  and in  their statements recorded by the second investigating officer (PW- 17), after a lapse of two months of the occurrence, although no weapon  was assigned  to  him  in  the  FIR,  or  in  the statements given to the first investigating officer (PW-16). It also  noted that  no specific  role was  assigned to  him either in  the FIR  or in  the statements  by the witnesses. These factors  together with  the findings  that  there  was delay in  lodging the  FIR and the explanation for delay was not convincing:  the FIR  was filed  after consultation  and that here  was o  light at  the time of occurrence oat about 6.30 P.M.,  either at  house of Ram Gopal or at the house of Vijay  Pal   to  enable   the  witnesses  to  recognize  the assailants of  the three  deceased persons, weighed with the High Court  to conclude  that the  prosecution had failed to prove the guilt of A-2 and A-6 beyond shadow of doubt.      On careful reading of the evidence of PWs. 1,2,3 and 5, which was  accepted by  the High Court to record the finding that Ram Gopal, Vijay Pal Singh  and Manpal were murdered on the evening of 4th October, 1980, we are of the opinion that reasons given  by the  High Court  to acquit  A-2 are hardly sufficient to  justify interference with the well considered judgment of the trial court finding them quality of offences under Sections 302, 148 and 201 IPC.      Now, we  shall examine  those reasons.  The High  Court laid some  emphasis on certain aspects dealing with the FIR; firstly delay in filing the FIR, which remained unexplained, and also  on the  fact that  there was  consultation  before filing the  FIR.  The  evidence  on  record  discloses  that gruesome murder of the deceased persons was committed by the appellants and  others who  dragged the  dead bodies  to the rear side of the Junior High School, placed them on the heap of dung  cake and  burnt them  there.  The  assailants  were keeping a  watch on  the  road  throughout  the  night.  The atmosphere there was awesome. In such circumstances, late in the night no reasonable person would have dared to go to the police station  to lodge  the complaint. PW-1 stated that he noticed that  the assailants  left the  place at  about 5.00 A.M. He then proceeded from the house to go to police. Thus, he lodged  complaint at  the earliest  possible time. It has

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come in  evidence  that  the  distance  from  the  scene  of occurrence to the police station can be covered in about two hours. The  complaint was  given in  the police  station  at about 7.00  A.M. This  account, in  our view,  is a good and sufficient explanation for the delay in giving the complaint explanation for  the delay in giving the complaint to police by   PW-1.      It may be noted here that that part of the statement of PW-1 was  not cross-examined  by the accused. In the absence of  cross-examination  on  the  explanation  of  delay,  the evidence PW-1   remained unchallenged and ought to have been believed by  the High Court. Section 138 of the Evidence Act confers a  valuable right  of  cross-examining  the  witness tendered in  evidence by  the opposite  party. The  scope of that provisions  is enlarged  by Section 146 of the Evidence Act by a allowing a witness to be questioned:      (1) to test his veracity.      (2) to  discover who he is and what      is his position in life, or      (3)  to   shake  his   credit,   by      injuring  his  character,  although      the answer  to such questions might      tend  directly   or  indirectly  to      criminate him  or might  expose  or      tend  directly   or  indirectly  to      expose  him   to   a   penalty   or      forfeiture.      The oft  quoted observation  of Lord Herschell, L.C. in Browne vs. Dunn [(1893) 6 The Reports 67] clearly elucidates the principle underlying those provisions.      It reads thus:      I cannot help saying, that it seems      to me to be absolutely essential to      the  proper  conduct  of  a  cause,      where it  is  intended  to  suggest      that a  witness is not speaking the      truth on  a  particular  point,  to      direct his attention to the fact by      some  questions   put   in   cross-      examination      showing       that      imputation is  intended to be made,      and not  to take  his evidence  and      pas it  by as  a matter  altogether      unchallenged, and  then, when it is      impossible for  him to  explain, as      perhaps he  might have been able to      do if  such questions  had been put      to him, the circumstances which, it      is suggested,  indicate that  story      he tells  ought not to be believed,      to  argue  that  he  is  a  witness      unworthy of  credit.  My  Lords,  I      have always  understood that if you      intend to  impeach a  witness,  you      are bound, whilst he is in the box,      to give  an opportunity  of  making      any explanation  which is  open  to      him; and,  as it  seems to me, that      is not  only a rule of professional      practice in  the conduct of a case,      but it  is essential  to fair  play      and fair dealing with witnesses.      This aspect  was unfortunately missed by the High Court when it  came to  the conclusion  that explanation  for  the delay is  not at  all convincing. This reason is, therefore,

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far from convincing.      Regarding preparation  of the FIR  in consultation with others, it  is noticed that this is spoken to by PW-2 who is the brother of the deceased Ram Gopal. The complaint is said to have  been prepared  by PW-1,  son of the said Ram Gopal, late in the night at about 2.00 A.M. When there are two male members of  the family  who were  grief stricken, it was but natural that  PW-1 and  his uncle  (PW-2) should  talk about giving the  complaint and  draft the  same. The fact, in the circumstances of this case, can hardly be a ground to weaken the case of the prosecution.      The third  aspect pointed  out by the High Court is, no motive was  assigned to  A-2 to  join  hands  with  A-1  for commission of  the offences.  When the  participation of the accused A-2  is established  by the evidence of eye witness, absence of  motive pales into insignificance and cannot be a ground to justify his acquittal.      The last  facet is  that no weapon or role was assigned to A-2 and A-6 in the FIR and that hose facts were stated in the statement  recorded by  the second investigating officer (PW-17) much  later. It  will he  useful to  read  here  the relevant portion  of the  FIR, which  is  in  the  following terms:      "That at  that time Nahar Singh s/o      Bhanwarpal  Singh,   Shishpal   s/o      Ishwarpal Singh,  Layakat  Ali  s/o      Raffique, Rakshpal  Singh s/o Kamal      Singh  and  Thakur  Ram  Gopal  s/p      Bhikey  Jatav  of  my  village  and      Bhagat  Singh   r/o  Lakhanai  P.S.      Jalessur   and    Harishankar   s/o      Mohinderpal  Singh,  Brother-in-law      of Nahar  Singh of  Shehzadpur P.S.      Hathras  Distt.   Aligarh  and  7-8      others persons  whom I  do not know      by name but can identify if fact to      face, came at once from in front of      the  house   helping  gun,  pistol,      ballam, lathie etc, and caught hold      of my  father who  was lying on the      cot  and   shot  him   dead.   This      incident was witnesses by the women      and children of our family*...*.      A perusal of the above excerpt of the FIR shows that it is not a case where weapons and different roles are assigned to some  of the accused but no weapon of role is assigned to A-2 and  A-6. The purpose of recording Fir under Section 154 of the  Criminal Procedure  Code is to set the investigating agency in  mooting for  prosecuting the  persons responsible for the  cognizable offence mentioned in the FIR. Though the FIR   should not be too sketchy or vague, yet non-mentioning of the  details and  meticulous particulars is not ground to reject the  case of  the prosecution  [Sec 1979 Criminal Law Journal 1295].  Therefore, the  omission pointed  out by the High Court is not fatal to the case of the prosecution.      Yet another  ground which  impressed the  High Court is about identification  of the assailants who took part in the commission of the offences. The High Court observed that the time was  6.30 P.M., it was dusk. lantern was burning at the scheme  of  the  occurrence  and  there  was  no  sufficient artificial light  which could  enable the  eye witnesses  to identify the  assailants. That part of the statement of PW-5 which is  referred to  by the High Court to infer that there was no light to identify the assailants, reads as follows:      "Sham Ke Sade Chhe Baje Samaye Tha.

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    Suraj Doob  Chuka Tha.  Suraj Chhip      Gaya  Tha,  Magar  Roshni  Thi"  Us      Samaye Ghar  Me Lalten Jala Li Thi.      Lalten Isliye  Jala Li  Thi Ki Dono      Wakt Mil Gaye The."      From the above quoted statement, it is evident that the time was  6.30. and  that though  the sun had set, yet there was light and at that time the lantern was also lighted. She had given  the explanation  for lighting the lantern as Dono Wakt mil;  gaye the".  It is a colloquial phrase which means that the  day  time  was  over  and  the  evening  time  had commenced. At  that time,  it won’t  be too  dark to see the person particularly  when they  are known. Further, when the light was  enough to enable the assailants to identify their victims and kill them, it can hardly be contended, much less accepted, that  the light  was not  enough to  identify  the assailants.      The principle with regard to interference in the appeal against  acquittal   under  Section  378  Cr.P.C.  are  well established. While  dealing with the power of the High Court to reverse  an order  of acquittal on a matter of fact, Lord Russell of Killowen, speaking for the Privy Council, in Sheo Swarup &  Ors. vs. King Emperor (AIR 1934 S.C.227). observed thus:      "There  is   in  their  opinion  no      foundation for the view, apparently      supported by  the judgments of some      Courts  in  India,  that  the  High      Court has  no power or jurisdiction      to reverse an order of acquittal on      a matter  of fac t, except in cases      in  which   the  lower   Court  has      ‘through   incompetence,  stupidity      or   perversity’    reaches    such      ‘distorted   conclusions    as   to      produce a  positive miscarriage  of      justice’, or  has in some other was      so conducted itself as to produce a      glaring miscarriage  of justice, or      has been  tricked by the defence so      as to produce a similar result.      Sections 417,  418 and  423 of  the      Code give  to the  High Court  full      power  to   review  at   large  the      evidence upon  which the  order  of      acquittal was founded, and to reach      the  conclusion   that  upon   that      evidence  the  order  to  acquittal      should be  reversed. No  limitation      should be  placed upon  that power,      unless it be found expressly stated      in the  Code. But in exercising the      power conferred  by  the  Code  and      before  reaching   its  conclusions      upon fac  t, the  High Court should      and will always given proper weight      and consideration  to such  matters      as (1) the views of the trial Judge      as  to   the  credibility   of  the      witnesses; (2)  the presumption  of      innocence in favour of the accused,      a   presumption    certainly    not      weakened by  the fact  that he  has      been acquitted  at his  trial;  (3)      the right  of the  accused  to  the

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    benefit of  any doubt;  and (4) the      slowness of  an appellate  court in      disturbing  a   finding   of   fact      arrived at  by a  Judge who had the      advantage or  seeing the witnesses.      To state  this however  is only  to      say that  High Court in its conduct      of the  appeal should  and will act      in  accordance   with   rules   and      principles    well     known    and      recognised in the administration of      justice."      These principles  have been  approved and  followed  in numerous decisions  of the  Supreme Court. To mention a few, see Paramdas  vs. The  State (AIR  1954 SC 36); Sanwat Singh vs. State  of Rajasthan  (AIR   1961 Sc  715 =  1961 (3) SCR 120).      In State of U.P. vs. Krishna Gopal & Anr. (1988 (4) SCC 302), M.N.  Venkatachaliah, J.  (as he  then was) summarised the principle as follows:      "The plenitude  of the power of the      appellate  court   to  review   and      reappreciate the evidence cannot be      limited  under  the  supposed  rule      that unless there are ‘substantial’      or ‘compelling’ reasons’ or ‘strong      reasons’,   the   findings   in   a      judgment of acquittal should not be      interfered with.  There is  thus no      immunity to an erroneous order from      strict scrutiny.  But the appellant      court     whenever     it     finds      justification   to    reverse    an      acquittal must  record reasons  why      it finds the lower court wrong."      In Ajit  Savant Majagvai  vs. State  of Karnataka (1997 (7) SCC  110), the above noted principles have been approved and restated.      If on  re-assessment of  the  evidence,  the  appellate court comes  to the conclusion that the quilt of the accused is established,  the fact  that the  appeal is  against  the acquittal will  be immaterial.  However, if  two  views  are possible, the  court, having  regard to  the basic principle that  presumption   of  innocence   of  the   accused   gets strengthened by  the fact  of his acquittal by court, should take the view that supports the acquittal of the accused.      For the  above reasons,  we hold  that the  view of the evidence taken  by the  High Court  is erroneous and that it misled itself  in coming to the conclusion that the quilt of A-2 and  A-6 was  not established;  we are  of the view that prosecution has  proved the  quilt of the accused beyond any reasonable doubt.  The trial  court was, therefore, right in convicting them and that the High Court was not justified in interfering with  the conviction  and sentence  of Shishupal Singh (A-2)  and Ram Gopal (A-6) on grounds which are hardly sustainable in  law. Accordingly, judgment of the High Court dated October  3, 1985  in Criminal  Appeal No. 1830 od 1994 is set  aside, judgment  of the  trial court dated 3rd July, 1984, insofar  as it related to A-2 and A-6, is restored and Shishupal Singh (A-2) and Ram Gopal (A-6) are directed to be taken into  custody to  serve their  sentences. The  appeals filed by the State against the said respondents (Respondents Nos.2 and  3) are  allowed, as indicated above, and they are dismissed against other respondents.

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