03 October 1956
Supreme Court
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NIRANJAN SINGH Vs THE STATE OF UTTAR PRADESH(and connected appeal)

Case number: Appeal (crl.) 60 of 1956


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PETITIONER: NIRANJAN SINGH

       Vs.

RESPONDENT: THE STATE OF UTTAR PRADESH(and connected appeal)

DATE OF JUDGMENT: 03/10/1956

BENCH: MENON, P. GOVINDA BENCH: MENON, P. GOVINDA BHAGWATI, NATWARLAL H. IMAM, SYED JAFFER DAS, S.K.

CITATION:  1957 AIR  142            1956 SCR  734

ACT: Criminal      trial-Investigation      of       crime-Police Regulations--Case  diary-Submission  of the  case  diary  to superior  officers  day to day-Contravention  of  the  rule- Whether   it   vitiates  the  trial-Uttar   Pradesh   Police Begulations, r. 109.

HEADNOTE: Rule  109  of the Uttar Pradesh Police  Regulations  dealing with  the  investigation of crimes enjoins upon  the  police officer when an investigation is closed for the day to  note the  time  and place at which it closed and also  lays  down that  throughout  the investigation the diary must  be  sent daily  to the Superintendent of Police on all days on  which any proceedings are taken. The  question that had to be decided by the court was as  to whether the appellants took part in the dacoity and the case of the prosecution depended mainly on the identification  of the appellants.  It was found that the investigating officer did  not send the case diary daily to the Superintendent  of Police  but  only all together at the end of the  period  of investigation.  It was contended for the appellants that the case  diary  could  not be relied upon  as  it  enabled  the officer to make alterations during the course of the  period of investigation and that as there had been an infraction of r. 109 of (1)  [1950] S.C R. 335; [1950] I.T.R. 472. 735 the  Uttar Pradesh Police Regulations which had resulted  in prejudice, the whole trial was vitiated thereby. Held:(1)  Rule 109 of the Uttar Pradesh  Police  Regulations has no statutory foundation but is only an injunction by the executive  Government to the police officers as to how  they must  regulate their work and conduct themselves during  the course  of  investigation and a failure to comply  with  the rule  relating to the submission of the police diary  cannot vitiate the trial. Hafiz  Mohammad  Sanii and others v.  Emperor  (A.I.R.  1931 Patna 15O), approved. Observations in Tilkeshwar Singh and others v. The State  of

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Bihar ([1955] 2 S.C.R. 1043), followed. (2)  It  could  not  be said in the  absence  of  compelling reasons that because the investigating officer did not  send the  case diary to the superior officers every day the  same is unworthy of credit particularly in view of the fact  that the courts below have cast no doubt upon its genuineness.

JUDGMENT: CRIMINAL  APPFLLATE JURISDICTION: Criminal Appeals  Nos.  60 and 61 of 1956. Appeal  by -special leave from the judgment and order  dated August  4,  1955, of the Allahabad High  Court  in  Criminal Appeal  No.  298 of 1955 and Referred No. 31  of  1955  with connected Criminal Appeals Nos. 299 and 307 of 1955  arising out  of the judgment and order dated February 28,  1955,  of the  Court  of Sessions Judge, Meerut in  Criminal  Sessions rial o. 142 of 1954. Jai  Gopal  Sethi,  S.  C.  Saran  and  G.  C.  Mathur,  for appellants in Criminal Appeal No. 60 of 1956. J.N.  Bannerji  and  P. C. Agarwala, for  the  appellant  in Criminal Appeal No. 61 of 1956. H.J.  Umrigar  and C. P. Lat, for the  respondents  in  both Appeals. 1956.  October 3. The Judgment of the Court was delivered by GOVINDA  MENON J.-On September 6, 1955, this  court  granted the  appellants herein, special leave to appeal  under  art. 136(1) of the Constitution from the judgment and order dated August 4, 1955, of the 736 Allahabad  High  Court, in Criminal Appeal No. 298  of  1955 (Reference  No. 31 of 1955) connected with Criminal  Appeals Nos.  299 and 307 of 1955, limited to the  question  whether the  failure  to  comply  with the  rules  relating  to  the submission  of  the police case diary, vitiates  the  entire trial and what the consequences of such failure are.  It  is in  pursuance to the leave so granted, that Criminal  Appeal No. 60 of 1956, has been preferred by accused Nos. 4, 7,  I, 3, 5 & 2 (Niranjan Singh, Tikam Singh, Kharak Singh,  Harpal Singh,  Sardar  Singh  and  Satpal  Singh)  respectively  in Sessions 3 Trial No. 142 of 1954, in the court of Session at Meerut  and Criminal Appeal No. 61 of 1956, is preferred  by accused  No. 6 (Udaibir Singh) in the same  Sessions  trial. Appellants 1 to 3 in Criminal Appeal No. 60 of 1956 (accused Nos. 4, 7 & 1, Niranjan Singh, Tikam Singh and Kbarak Singh) have  been sentenced to the extreme penalty of the  law  and the  remaining  appellants in that appeal sentenced  to  im- prisonment  for  life.   The appellant (accused  No.  6)  in Appeal No. 61 of 1956, has also been sentenced to death. On  the  night  between February 28, and March  1,  1954,  a dacoity took place in the house of Atal Singh in the village of  Akheypur  in which about twenty dacoits  took  part  and considerable  property  was  looted and taken  away  by  the dacoits.  During the course of this incident four members of the family of Atal Singh, including himself, were shot  dead and another received gun-shot wounds as a result of which be died  subsequently in the hospital.  Four other  members  of the  family received gun-shot wounds and incised  wounds  at the  hands of the dacoits but they survived as a  result  of treatment in the hospital. The  prosecution  case was that among the dacoits  who  took part were the seven appellants in these two appeals, as well as  two  others; and of them accused No. I  (Kharak  Singh), accused  No.  4  (Niranjan Singh), accused  No.  6  (Udaibir

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Singh) and accused No. 7 (Tikam Singh) were armed with  guns and  as such were responsible for the shooting and  murders. The two others, namely, Achhpal Singh and Deoki Saran alias 737 Beg Saran, who figured as accused Nos. 8 & 9 respectively in the  court  of  Sessions,  were  acquitted  by  the  learned Sessions  Judge, who, after an analysis of the large  volume of  evidence,  found  that all the  appellants  herein  were guilty  of an offence under s. 396 of the Indian Penal  Code and  sentenced  accused Nos. 1, 4, 6 and  7  (Kharak  Singh, Niranjan Singh, Udaibir Singh and Tikam Singh) to death  and accused Nos. 2, 3 & 5 (Satpal Singh, Harpal Singh and Sardar Singh).to  imprisonment for life as hereinbefore  mentioned. On appeal to the High Court of Judicature at Allahabad,  the learned   Judges  (Asthana  and  Roy  JJ.)   confirmed   the convictions  and  sentences and dismissed the  appeals.   As stated already, leave to appeal to this court under art. 136 was granted restricted to the question outlined by us at the beginning. The  prosecution case is that the village of Akheypur  is  a factious  one in which one Narain Singh, the brother of  the 4th accused, was the leader of one party and Atal Singh, one of the deceased, was the leader of the other.   Consequently the  dacoity  and murders in the house of  Atal  Singh  took place as a matter of revenge.  Shortly stated, the case  put forward on behalf of the prosecution is that the  appellants and  others, some of whom were armed with guns,  raided  the house  of Atal Singh on the night in question.  The  inmates of  -the  house and others were inflicted injuries  and  the dacoits  after  looting  ?he  house  carried  away  valuable property.   It is not suggested that if the facts spoken  to by  the  prosecution witnesses, who are  eye-witnesses,  are true, then an offence under s. 396 of the Indian Penal  Code has not been amply proved; but the only question is  whether the appellants took part in the crime. That a dacoity took place in the house of Atal Singh  admits of  no doubt and the appellants do not deny the  occurrence, but  it is the case of accused Nos. 4 and 7 (Niranjan  Singh and  Tikam  Singh) that while the dacoity was  in  progress, they,  along  with the other residents of the  village,  had gone  to  the enclosure of Sardara Singh and  Daryao  Singh, close  to the house of Atal Singh, armed with guns with  the object 738 of giving assistance and succour to the inmates of the house and  it  was  they who opened fire from that  place  on  the dacoits, compelling them to take to their heels as a  result of the firing, and that after the dacoits had left the scene of  occurrence, they, as. well as others, proceeded to  Atal Singh’s house where Dharam Singh and other persons requested them -to go to the Police Station at Kithore on their motor- cycle  in  order  to make a report to  the  police.   It  is further  alleged  that both of them went to  Kithore  police station  and  reported the occurrence to the  Sub  Inspector Dalbir  Singh  (P.W.  28) who was in charge  of  the  police station and on the direction given by him, they went to  the police  station  Garhmukteshwar  to  give  information.,  In short,  the  defence  is that these two  accused  were  good Samaritans  who  tried to help the family of Atal  Singh  in their  hour of dire need and not the assailants.  The  other appellants denied the charge. It  is not necessary, in view of the concurrent  conclusions arrived  at by the trial court and by the learned Judges  of the High Court, to restate with any elaboration the  details of the incident which culminated in the dacoity and murders.

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In  addition to the corroborating pieces of evidence,  there are  eye-witnesses  who  have identified  some  or  all  the accused at the scene of crime and it may also be stated that some  of  them  had received injuries at the  hands  of  the miscreants.  We have also a dying declaration, Exhibit P-50, recorded by P.W. 20, a Magistrate, who also had recorded the  statements of Ganga Saran (P.W. 2) and Ranbir (P.W. 18) when they  were in  a  serious condition anticipating that  they  might  not survive the injuries but which they fortunately did. The earliest information of the crime (Ex.  P. 1) was  given by  Samey  Singh (P.W. 1) at the Police Station  Kithore  at about  2  a.m. on March 1, 1954.  It does  not  contain  any details  of  the incident and is confined to  the  statement that  a  dacoity was being committed at the  house  of  Atal Singh in the village and that the informant had rushed  from the village 730 for  making a report.  That guns were being fired  has  also been  recorded  in it.  P.W. 28 Dalbir Singh, who  was  Sub- Inspector of Police and the Station House Officer of  Police Station Kithore at that time, received the information,  and reached  the scene of dacoity at about 2-30 a.m.,  whereupon Jhamel  Kaur  (P.W. 4) handed over to him the  list  of  the looted property (Ex.  P. 2).  According to this witness,  he immediately examined P. W. 2 and other witnesses on the spot and  recorded  their statements.  The injured  persons  were sent  to the hospital and inquests were held over  the  dead bodies of Rohtas Singh, Tejpal Singh, Atal Singh and  Charan Singh in the presence of witnesses.  Between 2-30 a.m. and 7 or 7-30 a.m., P.W. 28, according to him, did a  considerable amount of work, such as recording the statements of all  the available  witnesses,  sending the injured  persons  to  the hospital  after  taking their statements,  holding  inquests over  the  dead  bodies, inspecting the  scene  of  dacoity, finding  lead shots and wads there, and taking such  .things into  custody,  etc.   By about 7 or 7-30  a.m.  the  Senior Superintendent  of  Police,  the  Deputy  Superintendent  of Police  and  other  police officials reached  the  place  of incident on bearing of the dacoity and by the time of  their arrival,   according  to  P.W.  28,  he  had  finished   the preliminary  work.  He also deposes that the parchas of  the case diary for the period between March I and March 7, 1954, were sent all together to the Superintendent of Police  only on March 7, and not as is enjoined by the rules every day as and  when the day’s recording is complete.  We shall  advert to   the  arguments  of  the  learned  counsel  about   this circumstance at a later stage. The  prosecution case depends, mainly if not solely, on  the identification of the various accused persons by some or all of  the  prosecution  witnesses, in addition  to  the  dying declaration  Exhibit P. 50 and the corroborating  statements of P.W. 2, vide Exhibit P.    49) and P.W. 18 (vide  Exhibit P. 48). We  may here summarise in very sbort-outline the details  of identification  by  the  witnesses.  P.  W.  2  Ganga  Saran identified accused Nos. 1, 3, 4, 5 and 7 96 740 (Kharak  Singh, Harpal Singh, Niranjan Singh,  Sardar  Singh and  Tikam Singh).  Dharam Singh P. W. 3 identified  accused No. 6(Udaibir Singh) among the dacoits and also deposes that Atal  Singh  told him that accused No. 7 (Tikam  Singh)  had shot him with a gun.  P. W. 4 Mst.  Jhamel Kaur, in addition to  giving  a list of the looted property  (Exhibit  P.  2), identified  accused  Nos. 2 & 6 (Satpal  Singh  and  Udaibir

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Singh).   P.  W.  5 (Richpal Singh) states  that  among  the dacoits,  there were accused Nos. 2, 4, 5, 6 and  7  (Satpal Singh, Niranjan Singh, Sardar Singh, Udaibir Singh and Tikam Singh).   P. W. 7. (Om Pal) found among the dacoits  accused Nos. 2,6 and 7. The, deposition of P. W. 9 is to the  effect that  he identified accused No. 6 (Udaibir Singh)- and  also that  Atal Singh told him that accused No. 7  (Tikam  Singh) had shot him.  P. W. 10 Jagbir Singh identified accused  No. 1  (Kharak  Singh).   All  the  appellants  before  us  were identified by  W. 11 (Ganga Bal), and P. W. 18 (Rdnbir)  was able to identify accused No. 6 Udaibir Singh.  The result of the above analysis is that each one of the accused has  been identified  by  one or more of  the  prosecution  witnesses. Accused  No. I (Kharak Singh) is identified by P.W. 2,  P.W. 10 and P.W. 1 1; accused No. 2 (Satpal Singh) is  identified by P.W. 4) P.W. 5, P.W. 7 and P.W. 11; accused No. 3 (Harpal Singh)  is identified by P.W. 2 and P.W. 11; accused  No.  4 (Niranjan Singh) is identified by P.W. 2, P.W 5 and P. W.  1 1;  accused No. 5 (Sardar Singh) by P.W. 2, P.W. 5 and  P.W. 11;  accused No. 6 (Udaibir Singh) by P.W. 4, P.W., 5,  P.W. 7,  P.W.  9, P.W. 11 and P.W. 18; and accused No.  7  (Tikam Singh) is identified by P.W. 2, P.W. 5, P.W. 7, P.W. 9 and P.W. 11. The  learned Sessions Judge accepted the testimony of  these witnesses  and  disbelieved the story put,  forward  by  the accused  and  in  this he had the concurrence  of  the  High Court.   Such  being  the  case, this  court  would  not  be justified  in re-opening the finding about the guilt of  the appellants  if  no question of law is involved,  or  if  the conclusion  is  not  preverse or opposed  to  principles  of natural justice or revolt- 741 ing  to  judicial  conscience.  But  Mr.  Jai  Gopal  Sethi, counsel  for the appellants, strenuously contended  that  in view  of the failure of the Sub-Inspector P.W. 28 to  comply with  para.  109  of Ch.  XI of  the  Uttar  Pradesh  Police Regulations, which lays down that when the investigation  is closed-for  the  day, a copy of the case diary for  the  day should  be sent to the superior police officers,  there  has been  an  infraction of a mandatory rule of  law  which  has resulted  in  prejudice  and if that  is  so,  the  findings regarding  the guilt of the accused should be re-opened  and this  court should reassess and assay the evidence  to  find out  how  far the guilt of the appellants  has  been  proved beyond reasonable doubt. The  question, therefore, is whether the action of the  Sub- Inspector  amounts  to  a  violation  of  a  statutory  duty enjoined  on him.  If the Uttar Pradesh  Police  Regulations were  a set of rules framed under any statute, and  as  such have  the  force  of  law, then  a  violation  of  any  rule thereunder,  may  either  amount  to  an  illegality  or  an irregularity  which may or may not vitiate the  proceedings. The  Police Act,’1861 was enacted to reorganize  the  police and  to  make  it  a  more  efficient  instrument  for   the prevention  and  detection  of  crimes,  whereby  the  State Government  is given authority to appoint  police  officers, such  as the Inspector-General, ete,.  Under s. 12  of  that Act the Inspector-General of Police may, from time to  time, subject to the approval of the State Government, frame  such rules and orders as he shall deem expedient relative to  the organization, classification and distribution of the  police force,  the places at which the members of the  force  shall reside, and the particular services to be performed by them; their inspection, the description of arms, accoutrements and other  necessaries to be furnished to them;  the  collecting

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and  communicating by them of intelligence and  information, and  all such other orders and rules relative to the  police force  as  the Inspector-General shall, from time  to  time, deem expedient for preventing abuse or neglect of duty,  and for  rendering such force efficient in the discharge of  its duties.  It is not as if 742 these police regulations are rules framed by the  Inspector- General  in  accordance with section 12; but  they  are  the result  of  the  State Government laying down  the  mode  of conduct  and how the officers have to perform their  duties. Rule  109  in Chapter XI dealing with the  investigation  of crimes   enjoins   upon   the  police   officers   when   an investigation  is  closed for the day to note the  time  and place at which it closed and also lays down that  throughout the investigation the diary must be sent daily to the Police Superintendent  on  all days on which  any  proceedings  are taken.   If  the investigating officer is  not  himself  in- charge  of the station, the diary must be sent  through  the officer  in-charge  except when this will cause  delay.   It also directs the police officer to study carefully  sections 162  and 173 of the Code of Criminal Procedure.  Nowhere  in the rules is it stated that there is any statutory authority for  the  framing of rule 109, nor is it said  to  form  any addition  to  a statute, even though some  other  rules  are expressly stated to be statutory ones.  Such being the case, it  is clear that rule 109 has no statutory’ foundation  but is  only  an injunction by the executive Government  to  the police officers as to how they must regulate their work  and conduct themselves during the course of investigation. Mr.  Jai  Gopal Sethi, who appeared for  the  appellants  in Criminal  Appeal  No.  60 of 1956, ’and  Dr.  Banerjee,  who appeared  for the appellant-accused No. 6, in Appeal No.  61 of 1956, put their case in this way: According to the police officer P.W. 28, he recorded the statements of all the  eye- witnesses  before day-break, and in case the diary under  s. 172 containing the statements recorded under s. 162 had been sent  to the superior police officers every day,  then  that fact  would vouchsafe for the correctness of  that  document and  it would not be possible for the officer to  change  or alter the statements of witnesses as it suited his desire if he  wanted to do so at a later stage.  In the  present  case since  admittedly  the case diary and the  details  of  work during  the  course of seven days had not been sent  to  the superior  police  officers for a period of one week,  it  is suggested that it is possible that it might be considered  a false  document because it was not prepared then  and  there containing  statements recorded as and when they were  made. In  that  case, both the learned counsel  contend  that  the opportunity of cross-examinidg the witnesses and finding out whether the names of the accused were given at the  earliest point  of time has been lost to the defence.  The result  of this,   according  to  the  learned  -counsel,  has   caused ’irreparable   prejudice   which  cannot  be   condoned   or regularised. But  the  learned counsel have not been able to show  to  us that para. 109 of Ch.  XI of the Police Regulations has  the force  of law.  In this connection reference may be made  to Ch.   XLV  of the Code of Criminal  Procedure  dealing  with illegal and irregular proceedings and to s. 529 laying  down irregularities  which do not vitiate proceedings,  while  s. 530  concerns  irregularities  which  vitiate   proceedings. Section 537 is to the effect that subject to the  provisions contained  in  the  previous sections  of  that  Chapter  no finding,  sentence or order passed by a Court  of  competent

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jurisdiction  shall be reversed or altered under Ch.   XXVII or  on appeal or revision on account of among  other  things any  error,  omission  or  irregularity  in  the  complaint, summons,  warrant,  proclamation, order, judgment  or  other proceedings  before  or during trial or in  any  inquiry  or other  proceedings under the Code.  There is an  Explanation added  that "in determining whether any error,  omission  or irregularity   in  any  proceeding  under  this   Code   has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings".  It is  true that  the  objection was taken before the  learned  Sessions Judge and, therefore, the Explanation cannot be applied.  In these  circumstances  and  on the  footing  that  the  Uttar Pradesh Police Regulations, are merely directions  regarding the course of conduct, can it be stated that a breach of  it would vitiate the trial?  The Code of Criminal Procedure  in laying  down  the omissions or irregularities  which  either vitiate the proceedings or not does not anywhere 744 specifically  say  that  a mistake  committed  by  a  police officer  during the course of the investigation can be  said to  be  an  illegality or  irregularity.   Investigation  is certainly  not an inquiry or trial before the court and  the fact  that there is no specific provision either way in  ch. XLV  with respect to omissions or mistakes committed  during the  course  of  investigation except  with  regard  to  the holding  of  an  inquest is, in our  opinion,  a  sufficient indication  that  the legislature did  not  contemplate  any irregularity in investigation as of sufficient importance to vitiate  or otherwise form any infirmity in the  inquiry  or trial. The  learned counsel for the State of Uttar Pradesh  invited our attention to a few cases which show that even  violation of  the  provisions  of the Code would  -not  amount  to  an illegality. The  decisions of their Lordships of the Judicial  Committee reported in Pulukuri Kotayya and otheers v. King-Emperor (1) and Zahiruddin v. King-Emperor (2) lay down that a breach of sections  162  and  172 of the Code does not  amount  to  an illegality.  If therefore such an omission could not vitiate a  trial,  it is all the more reasonable that a  failure  to conform  to  a  rule  of conduct  prescribed  by  the  State Government  on police officers cannot in any  way  interfere with  the legality of a trial.  That failure to  investigate an  offence  does not necessarily prejudice an  accused  and therefore   any   mistake   or   omission   in    conducting investigation  cannot vitiate a trial has been laid down  in Hafiz  Mohammad Sani and Others v. Emperor(3).  At  p.  152, Adami J. observes as follows:- "There  can  be  no  doubt that  the  Sub-Inspector  in  his procedure  disobeyed certain provisions of the law, and  for that he could be punished, if the authorities deemed it fit, but  I cannot find that his failure was to the prejudice  of the  petitioners.   Nor can I see how  failure  properly  to conduct an investigation into an offence can vitiate a trial which   was   started  on  the  final   report   after   the investigation". (1) [1948] L.R. 74 I.A. 65.   (2) [1947) L.R. 74 I.A. 80, (3) A.I.R. 1931 Pat. 150, 745 We are in agreement with these observations. In a recent case reported in Tilkeshwar Singh and Others  v. The  State of Bihar(1), Venkatarama Ayyar J.  expressed  the opinion   that  "while  the  failure  to  comply  with   the

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requirements of section 161(3) might affect the weight to be attached  to  the evidence of, the witnesses,  it  does  not render  it inadmissible".  He referred to the case of  Bejoy Chand  v. The State(2) and agreed with the  observations  of the  Calcutta High Court therein.  We have no hesitation  in following those observations.  Our attention was also  drawn to  the case of Gajanand and Others v. State of  Uttar  Pra- desh(3),  which contains statements of law helpful  for  the decision of this case. We are not prepared to say that because P.W. 28 did not send copies of his diary to the superior officers every day,  the same should be considered as a suspicious document  unworthy of  credit.   The learned Judges of the High Court  and  the court  of  first  instance  have  cast  no  doubt  upon  the genuineness of the case diary and that being the case it  is not open to us without any compelling reasons to say that it is spurious or suspicious.  In the circumstances, we do  not feel justified in holding that the omission of P.W. 28 is  a violation  of the provisions of a statute or a  rule  having the force of law which renders the trial invalid. Holding  therefore the point on which the special leave  had been  granted,  against the appellants, we  order  that  the appeals be dismissed. Appeals dismissed. (1)  [1955] 2 S.C.R. 1043, 1047, 1048. (2)  A.I.R. 1950 Cal. 363. (3)  A.I R. 1954 B.C. 695, 699. 746