http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

PETITIONER: STATE OF U.P.

       Vs.

RESPONDENT: BHOORA & ORS.

DATE OF JUDGMENT:       23/10/1997

BENCH: G.T. NANAVATI, V.N. KHARE

ACT:

HEADNOTE:

JUDGMENT:                THE 23RD DAY OF OCTOBER, 1997 Present:                Hon’ble Mr. Justice G.T.Nanavati                Hon’ble  Mr. Justice V.N.Khare T.N.Singh, Adv. for the appellant T. Vasandhi, Adv. (A.C.) for the Respondents.                       J U D G M E N T      The following Judgment of the Court was delivered: NANAVATI, J.      The State  has filed  this appeal  against  the  common judgment and order of acquittal passed by the Allahabad High Court in  Criminal Appeal No. 905/83 and Reference No. 4/83. Both the  respondents were  convicted by the trial court for the offence  punishable under  Section 396 read with Section 34 IPC and were sentenced to death.      The prosecution case was that Bhoora and Vishram Singh, the two respondent herein, along with about 20 to 25 dacoits went to  village Aimanpura  on 23.11.78  at about  6.30 p.m. Killed Raja  Ram who  was at  his tube-well  which was  very close to  the village,  then went to the house of Om Prakash and started firing at the persons who were sitting under the ‘Chhappar’ of  his house  and then  looted property from the houses of  Om Prakash  and other. Om Prakash somehow managed to escape from that place. He first went to the tube-well of Raja Ram as he was having a licenced gun and who happened to be his brother -in -law but finding him dead went running to the Police  Station which  was about  a mile  away  from  hi village. He  informed P.I  Surinder Kumar  Singh who was in- charge of  the  Police  Station  that  about  20-25  dacoits including Bhoora  and Vishram have come to his village, that they have  killed some  persons  and  are  still  committing dacoity. Thereupon  the police  party consisting of Surinder Kumar  Singh,  one  police  sub-Inspector  and  3  Constable accompanied Om  Prakash to  the village.  They first went to the house  of Data  Ram. When  they disclosed their identity and told  him that  they have  come to the village to render help to  the villagers,  the dacoits  who were  in his house opened fire.  The Police  also fired back and thereafter for some time  there was  an exchange of fire between the police and the dacoits. After seam time the dacoits retreated. They

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

were chased  by the  police  upto  a  certain  distance  but because of  darkness and  the forest being dense had to give up the chase. When the police returned to village they found that Raja  Ram. Jay  Prakash, Mata  Prasad and Ghundari were already dad  as result  of the  injuries received by the and Data Ram,  Siya Ram and Sudama were seriously injured. There fore, they  made arrangements  for sending  the injured to a hospital for treatment. Thereafter the investigation started and chargesheet  was filed the two respondent and some other who were  absconding. Both the respondent were the tried for committing the  offence punishable  under Section  396  read with Section 34 IPC.      In order to prove its case the prosecution had examined four eye  witnesses: Om  Prakash (PW.1),  Data  Ram  (PW.2), Hardev (PW.4)  and Phoolan  Singh (PW.5).  The  trial  court found that  about 5  to 6  years back,  uncle of  Om Prakash (PW.1) had  eloped with the mother of the respondent, and as the respondents  are Ahirs  and the person who had taken her away was  a Barahman, they had taken it an  insult and since the they  had a  grudge  against  the  Brahmans  of  village Aimanpura and,  therefore, on  the date of the incident they had gone  to the  village, killed some persons and committed dacoity. The  trail court  believed the  evidence of all the four witnesses as it found that there was enough light where the incident  had taken  place  and  that  they  had  enough opportunity to  see the  faces of  the respondent  who  were already known  to them.  The trial  court also  believed the evidence of  PW.1 and PW.2 that while running away from that village the  two  respondent  had  a  bused  Om  Prakash  by uttering the following words:      "Sale tum  aurato ko bhagate to Aaj      to tum  apne mehman  yani police ko      bula laye ho. Aage dekhenge."      The  trial   Court,  therefore,   convicted  both   the respondent under  Section 396  read  with  Section  34  IPC. Considering the  gravity of  the offence  committed  by  the accused, the trial court thought that the proper sentence to be imposes upon them was death. Therefore, it sentenced them to death.      As the  accused were sentenced to death a reference was made to  the High Court for confirmation of the sentence and an appeal  was also  preferred by  the accused against their conviction. The High Court on reappreciation of the evidence came to  the conclusion  that PW.4  Hardev and  PW.5 Phoolan Singh could  not have  seen the incident from the place from where they  have stated that they had seen the incident and, therefore, could  not have  identified the accused. The High Court believed the evidence of PW.1 and PW.2 that they along with others  were playing  cards under the ‘Chhapper’ of the house of  Om Prakash  and that  they got  up on hearing some noise coming from the side of tube well of Rajaram which was in the north-western direction. The High Court also believed their evidence that at the material time there was a lantern burning in  the shed  where they were playing cards and that there were  2  electric  poles  one  in  the  north  eastern direction at  distance of  about 10-15  paces and one in the north-western direction  at a distance of about 30 paces and that lights  on both the poles were burning. The High Court, however, was  of the  view that  as all  the accused were in khaki uniform  and were  wearing hats. the eye witness could not have identified the respondents. The High Court was also of the  view that  two witnesss  did not have enough time or opportunity to  recognise the  two respondent as the dacoits had started  firing as  soon as the person sitting under the ‘Chhapar’ go  tup to  see what was happening. The High Court

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

also did  not accept  the evidence of these two witness that while running  away the  respondents, had made the utterance referred to  above for  the reason  that Data  Ram  had  not stated so  before the  police and also because Phoolan Singh has stated in his evidence that after the police had come to the village  the did not hear any dacoit saying anything. As regards the  evidence of  notice the  High Court  was of the view that as the incident of kidnapping had taken place some years back  that could  not have  been the  reason  for  the respondents to commit this offence. The High Court has given one more reason for not believing the evidence of Om Prakash PW.1 It  considered his  conduct in first going to the tube- well of  Rajaram which  was in the north - eastern direction and then  to the  police station  which was  in the south as unnatural.  The   High  Court,   therefore,  held  that  the prosecution has  filed to  establish beyond reasonable doubt that respondents  were among  the dacoits  who had committed the dacoity in the village on that day.      The learned  counsel for  the appellant  submitted that the reasons  given by the High Court in holding that witness could not  have  indentified  the  respondents  are  neither proper nor  sufficient. He has taken us through the evidence of PW  2.1, 2, 4, 5 and 6 all of whom have deposed about the presence of  two electric  poles of  their  evidence  has  a remained almost  unchallenged. The  only attempt made by the defence in  this behalf  was to  put a  question to  PW.2 in cross-examination whether  he had drawn the attention of the police officer  to the existence of the second electric pole towards  the  west  of  Om  Prakas’s  house.  Possibly  this question was put to him because in the site plan prepared by the Investigating  Officer the  second pole  situated in the western direction  of the  house of  Om Prakash has not been shown. The  Investigating Officer has stated in his evidence that immediately  on being  informed by  Om Prakash,  he had gone to  the village  and at  that time  he had noticed that lights on both the electric poles were burning. This part of his evidence has remained unchallenged in cross-examination. As stated  earlier even  the High Court has accepted version of the witnesses that there were two poles near the house of Om Prakash  and on  both of  them lights were burning at the time of  incident. It  was no body’s case that the light was so sufficient  that from  a distance  of 30  paces a  person standing near the electric pole could not be identified. The reason given  by the  High Court  that because  dacoits were wearing khaki  uniform and  were wearing hats they could not have been  identified appears  to be more in the nature of a surmise, as  it was  not even  suggested to any witness that because of the hats worn by the respondents there was shadow on their  faces and,  therefore,  it  was  not  possible  to recognise them.  It si difficult to appreciate the reasoning of the  High Court.  If the witnesses were able to recognise the colour  of the  clothes worn by the dacoits, surely they could have  recognised their  faces also  of those  who were known to  them. As  noticed from the site plan and also from the evidence  of the witnesses, one electric pole was to the north-western of  the even of Om Prakash and one was towards north-east of  the house  of Om  Prakash and one was towards north-west. The  accused had  come  from  the  north-western direction and  even if  it is  assumed that their caps could have cast  a shadow over their faces while they were passing by the  north-western electric pole the light from the other pole would have fallen on their faces. Om Prakash and others had stood  up to see that what happening. Thus they were not taken by surprise. Therefore, their evidence that they stood up and  noticed that there were about 20-25 person about 30-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

35 steps  away from  the house  deserves to be believed. The reasons  given  by  the  High  Court  for  disbelieving  the evidence of  Om Prakash  and Data  Ram, therefore, cannot be regarded as  proper and  sufficient and  we hold  that their evidence deserves  to be believed. The High Court overlooked the fact that as soon as firing had started and some persons standing with  him were  injured Om  Prakash left that place and went  to the  police station.  He  informed  the  police officer in-charge  of the  police station  that about  20-25 dacoits have come to the village and were committing dacoity in his  house. He  further stated  that they  had killed Jai prakash, Raja  Ram and  Gundhari and other persons have also been inured.  He had  further stated  that he had recognised Bhoora and  Vishram of  village Madanpur in the light of the two electric  poles.  Thus  within  45  minutes  even  while dacoity was  being committed  in the  village Om Prakash had stated that  he had  identified two  of them  because of the electric lights. If the High Court had considered this piece of evidence  along with the oral testimony of Om Prakas then possibly  it   would  not  have  committed  the  mistake  of discarding his  evidence as  regards  the  identify  of  the respondents. The  High Court also committed an error when it observed that  Om Prakash could not have known that Raja Ram was murdered  when he  had lodged  the report  at the police station. It  discarded the explanation given by him that the first went  to the  tube-well of Raja Ram and, therefore, he had come  to know  about the  death of  Raja Ram.  As stated earlier the  High Court  found the  conduct of  this witness unnatural  as   the  tube-well   was  in  the  north-western direction  and  the  police  station  was  situated  in  the southers direction. This reasoning of the High Court appears to us  highly unreasonable because a person who was attacked by dacoits and had seen his colleagues being shot dead could not be  expected to  act in  a cool and collected manner. He was a  frightened  person and had thought fit to first go to the tube-well  of Raja  Ram as he was having a licensed gun. Such  a   conduct  can  hardly  be  regarded  as  unnatural. Moreover, nothing was suggested to the Investigation Officer in the  cross-examination that FIR was prepared later on. Om Prakash would  not have come to know about the death of Raja Ram unless  he had gone to the tube-well where his dead body was fond  later by the Investigating Officer. In our opinion the High  Court was  wrong in  discarding the evidence of Om Prakash on the ground that his conduct in going to the tube- well of  Raja  Ram  and  then  to  the  Police  Station  was unnatural.      As we find that the reasons given by the High Court for disbelieving the  prosecution evidence are not at all proper and that  has led  to the  failure of  justice, the order of acquittal passed  by the  High Court  will have  to  be  set aside.      In the  result we  allow this  appeal,  set  aside  the acquittal of  the respondents and convict them under Section 396 read  with 34  IPC. Though  we are  thus  restoring  the judgment and  order passed  by the  trial court,  we do  not think that  we should  also restore  the order  of  sentence passed by it. In view of long lapse of time and also because of the  facts and  circumstances of  the case, we are of the opinion  that   ends  of   justice  would  be  met  if  both respondents are  ordered to  suffer imprisonment  for  life. They shall  surrender to  custody to serve out the remaining period of sentence. The State is also directed to take steps to secure their presence in jail for that purpose.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5