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CASE NO.: Appeal (crl.)  54 of 2001

PETITIONER: State of U.P.

RESPONDENT: Atar Singh and Ors

DATE OF JUDGMENT: 12/11/2007

BENCH: Dr. ARIJIT PASAYAT & D.K. JAIN

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO. 54 OF 2001

Dr. ARIJIT PASAYAT, J.

       Challenge in this appeal is to the judgment rendered by a   Division Bench of the Allahabad High Court which by the  impugned judgment acquitted the  respondents and set aside  the conviction recorded by the learned Additional Sessions  Judge in .Sessions Trial No.316 of 1979. Each of the accused  had been convicted by the trial court and sentenced to life  imprisonment under Section 302 of the Indian Penal Code,  1860 (in short the ’IPC’) read with Section 149 IPC, three  months RI under Section 323 read with Section 149 IPC, six  months RI under Section 324 IPC read with Section 149 IPC  and two years RI under Section 452 IPC. Accused Jai Singh,  Atar Singh, Mohan Singh, Beer Singh and Baburam were  further convicted under Section 147 IPC and sentenced to  nine months RI. Accused Ramesh and Lal Singh were however  convicted under Section 148 IPC and sentenced to one year’s  RI. All the sentences were directed to run concurrently. The  High Court reversed the judgment and directed acquittal in  the appeal filed by the accused persons.

       Prosecution version as unfolded during trial is as follows:                      One Ram Murti (hereinafter referred to as ’deceased’) lost  his life in the incident whereas three others namely, Shyam  Pal (PW 1), Sohan Pal (PW 3) and Katori Devi sustained  injuries. The incident took place on 4.5.1979 at about 6.30  P.M. in village Balli Nagla, Police Station Qadarchowk, District  Budaun. The report of the incident was lodged by Shyam Pal  (PW 1) on 5.5.1979 at 3.15 A.M.  The distance of police station  from the place of occurrence is 8 kms. The accused- respondents Lal Singh and Ramesh were allegedly armed with  spears whereas rest had lathis. The accused-respondents Jai  Singh, Atar Singh, Lal Singh, Mohar Singh and Beer Singh are  the sons of Dallu who also allegedly participated in the  incident but died after few days of the incident. About 6  months before this incident, Durgapal-brother-in-law of  Shyam Pal (PW 1) had abducted Dhika daughter of Dallu.  Accused-respondents began to bear ill will against him and his  family members on this account. On 4-5-79 at about 6.30  P.M., exchange of hot words and abuses took place between  Shyam Pal (PW 1) and Dallu at the Chaupal of Nek Ram in  connection with abduction of Dhika. Some persons intervened

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in the matter and Shyam Pal went to his home. A little later,  all the accused-respondents along with Dallu entered the  house of Shyam Pal. As mentioned earlier, Lal Singh and  Ramesh were armed with spears whereas rest had lathis.  Dallu asked the other accused persons to teach a lesson to  Shyam Pal and his family members for defaming him. All the  accused-respondents then started assaulting Shyam Pal (PW  1) and his brothers Sonpal and Ram Murti who were present  there.  When their mother Katori Devi came to their rescue,  she was also beaten up.  Nathu Singh (PW 2), Ulnfat Irfan,  Prem Pal and others also arrived there.  Shyam Pal (PW 1),  Ram Murti, Sohan Pal (PW 3) and their mother Katori Devi  sustained injuries.  Shyam Pal (PW 2) with his nephew  Prempal went to the police station and lodged a report by oral  narration on 5.5.1979 at 3.15 A.M. which was taken down by  head constable Baburam (PW 4). Investigation was undertaken  and on completion thereof, charge sheet was filed. Accused  persons pleaded innocence. In order to further accusations,  prosecution examined eleven witnesses. Learned trial Judge  recorded conviction primarily relying on the evidence of  injured witnesses.   

       It was firstly noticed by the High Court that the motive  assigned by the prosecution against the accused respondents  did not stand the test of logic. The incident of kidnapping and  abduction of Dhika daughter of Dallu by Durgapal-brother-in- law of Shyam Pal (PW-1) had taken place about six months  before. Even no FIR had been lodged against Durgapal from  the side of accused persons regarding that incident. It was  admitted by PW-1 that even no Panchayat was convened.  Further Shyam Pal (PW-1) had admitted that at the time of  exchange of hot words with Dallu at the Chaupal of Nek Ram,  two persons namely, Nek Ram and Urman Singh were there  who had intervened. None of them was produced by the  prosecution to indicate the origin of the incident. Dallu himself  was a T.B. patient and the High Court found it hard to believe  that after alleged exchange of hot words at the Chaupal of Nek  Ram, he with all his sons, brother and nephew would have  appeared in the house of PW-1 to assault him and his family  members. Accordingly, it was held that even there was no  immediate motive for the alleged occurrence.  

       It was also noted that there was no corroboration to the  prosecution version by any independent witnesses.  Nathu  Singh (PW-2) was resident of another village who claimed to be  present at the place of occurence. He stated that he had come  to the village to meet his relative. According to him the house  of Rajpal was situated at a distance of 15-16 paces  from the  place of incident. The High Court noted that the existence of  Rajpal’s house in the vicinity of place of occurrence had not  been shown in the site plan.  The High Court found that some  parts of his statement could not be re-conciled with other  parts eg. that he had reached the village of incident at 6.30  a.m. and was present at the time of incident which took place  about 12 hours later. His statement was to the effect that he  had gone to his  son- in-law Rajpal as the latter was about to  go to his father-in-law’s house and he wanted to send some  cows to his father-in-law. He wanted to send this information  to his father-in-law but his cousin-in-law was not available.   He also stated that after some time he had returned to his  village. The High Court found his presence to be not  established. The High Court also noted that Sohan Pal (PW-3)  who claimed to be an eye witness was the brother of PW-1.

       The High Court noted that even though in the FIR names

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of some other persons have been noted as witnesses, none of  them had been examined.   The High Court was of the view  that statement of the deceased recorded by the investigating  officer under Section 161 of the Code of Criminal Procedure,  1973 (in short the ’Cr.P.C.’)  cannot be treated to be the dying  declaration. The investigating officer (PW-11) noted that when  he reached the spot in the morning of 5.5.1979 subsequent to  the lodging of the FIR at about 3.15 a.m. he had found the  deceased, Sohan Pal and Katori to be lying there in injured  condition. He recorded the statement of the deceased (Exh.Ka.  20). The High Court referred to the bed head ticket of the  deceased in which it was stated that his general condition was  noted low when he was admitted in the hospital on 5.5.1979.   The High Court also noted the admitted position that the  investigating officer did not follow the instructions contained  in Rule 115 of the U.P. Police Regulations relating to recording  of dying declaration.  Reference was made to a decision of this  Court in Palak Ram v. State of U.P. ( AIR 1974 SC 2165)  wherein it was noted that it would not be prudent to base  conviction on a dying declaration made to the investigating  officer which is not signed by the persons making it and has  not been taken in the presence of two witnesses.   The High Court also noted that there was no explanation  offered as to why the dying declaration was not recorded in the  presence of the Magistrate which is the usual course, though  he died on 7.5.1979 at about 4.00 p.m. Therefore, the High  Court treated the same to be a statement recorded in terms of  Section 161 of Cr.P.C. which cannot be treated to be a dying  declaration.  

       The High Court also noted another factor which  according to it was significant, i.e. the presence of large  number of injuries on accused Mohar Singh for which no  explanation was offered. This according to the High Court cast  a genuine doubt about the actual time, place, number of  assailants and weapons for the injuries.  The High Court noted  that injuries on accused Mohar Singh were not superficial and  some of them were even incised wounds. The investigating  officer had admitted that Mohar Singh was arrested on  6.5.1979. The High Court found it rather unusual that he was  produced for medical examination before a Doctor Shiv Kumar  Saxena (PW-5) on 5.5.1979 at 5.20 p.m. by a constable of the  Police Station.  Therefore, the High Court noted that if there  was no explanation offered as to why he was not arrested on  5.5.1979, the FIR was claimed to have been lodged at 3.15  a.m. on that day. The High Court noted that though PW-1 and  PW-3 were stated to be injured witnesses in the background  facts the prosecution version was highly improbabilised. The  evidence of PW-2 was found to be not truthful. As a  cumulative result of the discussions the High Court found that  the prosecution has not been able to substantiate its version.   

As noted above, the State has questioned correctness of  the conclusions recorded by the High Court.     With reference  to the evidence of injured witnesses, PW-1 and PW-3 it is  stated that they are injured witnesses and their version was to  be taken as credible and cogent. There was no reason as to  why the injured person would falsely implicate the innocent  person.  

       None appeared for the respondents when the matter was  called.  

There is no embargo on the appellate Court reviewing the

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evidence upon which an order of acquittal is based.  Generally,  the order of acquittal shall not be interfered with because the  presumption of innocence of the accused is further  strengthened by acquittal. The golden thread which runs  through the web of administration of justice in criminal cases  is that if two views are possible on the evidence adduced in the  case, one pointing to the guilt of the accused and the other to  his innocence, the view which is favourable to the accused  should be adopted. The paramount consideration of the Court  is to ensure that miscarriage of justice is prevented. A  miscarriage of justice which may arise from acquittal of the  guilty is no less than from the conviction of an innocent. In a  case where admissible evidence is ignored, a duty is cast upon  the appellate Court to re-appreciate the evidence where the  accused has been acquitted, for the purpose of ascertaining as  to whether any of the accused really committed any offence or  not. [See Bhagwan Singh and Ors. v. State of Madhya Pradesh  (2002 (2) Supreme 567)]. The principle to be followed by  appellate Court considering the appeal against the judgment of  acquittal is to interfere only when there are compelling and  substantial reasons for doing so. If the impugned judgment is  clearly unreasonable and relevant and convincing materials  have been unjustifiably eliminated in the process, it is a  compelling reason for interference. These aspects were  highlighted by this Court in Shivaji Sahabrao Bobade and Anr.  v. State of Maharashtra (AIR 1973  SC 2622), Ramesh Babulal  Doshi v. State of Gujarat (1996 (4) Supreme 167), Jaswant  Singh v. State of Haryana (2000 (3) Supreme 320), Raj Kishore  Jha v. State of Bihar and Ors. (2003 (7) Supreme 152), State of  Punjab v. Karnail Singh (2003 (5) Supreme 508 and State of  Punjab v. Pohla Singh and Anr. (2003 (7) Supreme 17) and  V.N. Ratheesh v. State of Kerala (2006(10) SCC 617).

       As is rightly contended by learned counsel for the  appellate-State in isolation the circumstances highlighted by  the High Court may not be sufficient to direct acquittal. Two  important factors which have been noted by the High Court  are (i) non explanation of injuries on accused Mohar Singh  and (ii) the reason for his non arrest on 5.5.1979 when he had  appeared before the police officers and had been sent for  medical examination.  

We shall first deal with the question regarding non- explanation of injuries on the accused. Issue is if there is  no such explanation what would be its effect? We are not  prepared to agree with the learned counsel for the defence  that in each and every case where prosecution fails to explain  the injuries found on some of the accused, the prosecution  case should automatically be rejected, without any further  probe. In Mohar Rai and Bharath Rai v. The State of Bihar  (1968 (3) SCR 525), it was observed:

       "...In our judgment, the failure of the  prosecution to offer any explanation in that  regard shows that evidence of the prosecution  witnesses relating to the incident is not true  or at any rate not wholly true. Further those  injuries probabilise the plea taken by the  appellants."

In another important case Lakshmi Singh and Ors. v. State of  Bihar (1976 (4) SCC 394), after referring to the ratio laid down  in Mohar Rai’s case (supra), this Court observed:

               "Where the prosecution fails to explain

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the injuries on the accused, two results  follow:

               (1)     that the evidence of the prosecution  witnesses is untrue; and (2) that the injuries  probabilise the plea taken by the appellants."

It was further observed that:

"In a murder case, the non-explanation of the  injuries sustained by the accused at about  the time of the occurrence or in the course of  altercation is a very important circumstance  from which the Court can draw the following  inferences:

       (1)     that the prosecution has  suppressed the genesis and the origin of the  occurrence and has thus not presented the  true version;

       (2)     that the witnesses who have denied  the presence of the injuries on the person of  the accused are lying on a most material  point and, therefore, their evidence is  unreliable;

       (3)     that in case there is a defence  version which explains the injuries on the  person of the accused assumes much greater  importance where the evidence consists of  interested or inimical witnesses or where the  defence gives a version which competes in  probability with that of the prosecution one."

In Mohar Rai’s case (supra) it is made clear that failure of the  prosecution to offer any explanation regarding the injuries  found on the accused may show that the evidence related to  the incident is not true or at any rate not wholly true. Likewise  in Lakshmi Singh’s case (supra) it is observed that any non- explanation of the injuries on the accused by the prosecution  may affect the prosecution case. But such a non-explanation  may assume greater importance where the defence gives a  version which competes in probability with that of the  prosecution. But where the evidence is clear, cogent and  creditworthy and where the Court can distinguish the truth  from falsehood the mere fact that the injuries are not  explained by the prosecution cannot by itself be a sole basis to  reject such evidence, and consequently the whole case. Much  depends on the facts and circumstances of each case. These  aspects were highlighted by this Court in Vijayee Singh and  Ors. v. State of U.P. (AIR 1990 SC 1459).

Non-explanation of injuries by the prosecution will not  affect prosecution case where injuries sustained by the  accused are minor and superficial or where the evidence is so  clear and cogent, so independent and disinterested, so  probable, consistent and creditworthy, that it outweighs the  effect of the omission on the part of prosecution to explain the  injuries. As observed by this Court in Ramlagan Singh v. State  of Bihar (AIR 1972 SC 2593) prosecution is not called upon in  all cases to explain the injuries received by the accused  persons.  It is for the defence to put questions to the  prosecution witnesses regarding the injuries of the accused

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persons.  When that is not done, there is no occasion for the  prosecution witnesses to explain any injury on the person of  an accused.  In Hare krishna Singh and Ors. v. State of Bihar  (AIR 1988 SC 863), it was observed that the obligation of the  prosecution to explain the injuries sustained by the accused in  the same occurrence may not arise in each and every case. In  other words, it is not an invariable rule that the prosecution  has to explain the injuries sustained by the accused in the  same occurrence.  If the witnesses examined on behalf of the  prosecution are believed by the Court in proof of guilt of the  accused beyond reasonable doubt, question of obligation of  prosecution to explain injuries sustained by the accused will  not arise.  When the prosecution comes with a definite case  that the offence has been committed by the accused and  proves its case beyond any reasonable doubt, it becomes  hardly necessary for the prosecution to again explain how and  under what circumstances injuries have been inflicted on the  person of the accused.  It is more so when the injuries are  simple or superficial in nature.  In the case at hand, trifle and  superficial injuries on accused are of little assistance to them  to throw doubt on veracity of prosecution case. (See Surendra  Paswan v. State of Jharkhand (2003) 8 Supreme 476).

       Considering the cumulative effect of circumstances which  have weighed with the High Court to direct acquittal, it cannot  be said that the view taken by the High Court is not a  plausible view. That being so, we are not inclined to interfere  with the order of acquittal. The appeal deserves to be  dismissed which we direct.