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PETITIONER: STATE OF U. P.

       Vs.

RESPONDENT: HARI PRASAD & OTHERS

DATE OF JUDGMENT06/12/1973

BENCH: CHANDRACHUD, Y.V. BENCH: CHANDRACHUD, Y.V. BEG, M. HAMEEDULLAH

CITATION:  1974 AIR 1740            1974 SCR  (2) 588  1974 SCC  (3) 673  CITATOR INFO :  R          1976 SC 980  (9)  D          1987 SC1222  (13)  D          1992 SC 214  (10)

ACT: Penal Code-murder-Motive for murder.

HEADNOTE: There  ware disputes over land between the  complainant  and the  party of the amused, all of whom were  connected  inter se.   The  deceased was a traditional priest,  both  of  the complainant as well as of the accused.  All the accused were on  friendly  terms with the deceased.  On the  day  of  the occurrence  the deceased priest and his mother were  staying with the complainant as his guests The complainant and sofa, members  of  his  family were sleeping on one  side  of  the terrace  of  his  house,  the priest  and  few  others  were sleeping  on another side, while the  complainant’s  servant and some others were sleeping yet on another portion of  the terrace  of the am, house.  While one group of five  accused committed the murder of the servant of the complainant,  the second  group of five murdered the priest and caused  injury to  his mother.  The witnesses claimed that they  identified the accused in the light of the lantern which was alleged to be hanging by a pole four or five feet high. The sessions Judge held that the 10 accused formed  unlawful assembly  for the purposes of committing the murder  of  the complainant  but  by  mistake committed the  murder  of  the priest  and the servant.  Five of the accused  belonging  to the  village were sentenced to death while the  others  were sentenced   to  imprisonment  for  life.   The  High   Court acquitted all the accused. Dismissing the appeal of the State to this Court HELD  :  (1) The High Court was right in the view  that  the occurrence took place under darkness and that in the absence of  any light none of the prosecution witnesses  could  have identified  the  culprits  and that  the  existence  of  the lantern was open to grave doubt. If the pattern was  burning just  near  the place where the priest was  sleeping  it  is difficult  to hold that the murder was committed through  an error mistaking him to be the complainant.  The accused  had no  motive  to  assault the priest and case  injury  to  his

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mother  which tended to show that they had not  participated in his murder. [593F; 592B and D] (2)  If the various eye witnesses were able to identify  the accused  in the light of the lantern the accused could  have been able to identify the victim. [592E]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.215  of 1970. Appeal  by special leave from the judgment and  order  dated the 12th May, 1970 of the Allahabad High Court Lucknow Bench at Lucknow in Criminal Appeal Nos. 35 and 36 of 1970. O.   P. Rana, for the appellant. A.   K. Gupta, for the respondents. The Judgment of the Court was delivered by CHANDRACHUD, J.-As criminal cases go, this is an interesting case  in the sense that it offers for solution a  riddle  of many  facets.   And since many answers  reasonably  come  to mind, the accused would appear to be entitled to the benefit of  that perplexity.  The monsoon night of August  27,  1968 was  dark,  so  dark indeed that the  Sessions  Court  which sentenced  five  of the accused to death and  the  remaining five to 589 life  imprisonment  made a finding that "it is  an  admitted case that without light it was not possible to identify  the assailants".   Witnesses usually place torches in the  hands of  dacoits and though the motive of the crime in this  case was  not burglary, a faint attempt. was made by some of  the witnesses  to show that, on occasions, a few of the  accused had  flashed  their torches at strategic stages.   But  that part of the case is clearly unworthy of belief.  And so, the main.question  in  this  appeal is  whether  a  lantern  was burning  at the scene of offence, lantern hanging by a  pole four   or  five  feet  high.   Witnesses  claim  that   they identified the accused in the light of that lantern. The case is riddled with these mysteries Why did the accused murder  Vishwanath  Panda, their traditional  family  priest with  whom  they were on friendly terms and  who,  with  his mother Birja, had come on the 27th evening to stay with  the complainant Kanahaiya Bux Singh as a guest?  The answer made by  the prosecution is that it is a sorry case  of  mistaken identity;  the accused wanted to murder the complainant  but mistook  Vishwanath for him, both being of the same  colour, size  and  age,  Why did the  accused  assault  Birja  whose husband first, and after his death her son was their priest? The  explanation  offered  is that  the  accused  wanted  to terrorise  her  lest  she raised an alarm.   If  the  common intention  of  the  accused  was to  commit  the  murder  of Kanahaiya  Bux Singh why did they allow him to escape  under their  very noses ? They were ten strong.  It  is  suggested that  on  seeing the assault on  Vishwanath,  Kanahaiya  Bux Singh  escaped  into  the nearby Chhappar,  along  with  his brother  kishan Pal Singh and his sister Chandrawali.   They covered  themselves with old clothes lying in the  Chhappar, but kept an opening for the eyes so as to be able to see the incident from the beginning to the fall of the curtain.  Why was  the complainant’s servant Ram Gopal murdered?   No  ex- planation  is forthcoming.  And if the complainant  and  his family  were  the real target, how could  the  complainant’s brother  Bhagwan  Bux Singh, his mother Ram Dulari  and  her sister   Raja  Munni  escape  with  no  more  than   simple, superficial  injuries?  This is not to say that even if  the

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witnesses  are truthful, the prosecution must fail  for  the reason  that the motive of the crime is difficult  to  find. For  the  matter  of  that, it is  never  incumbent  on  the prosecution  to prove the motive for the crime.   And  often times,  a  motive is indicated to heighten  the  probability that  the  offence  was  committed by  the  person  who  was impelled  by that motive.  But, if the crime is  alleged  to have been committed for a particular motive, it is  relevant to inquire whether the pattern of the crime fits in with the alleged  motive. if the motive, here, was  directed  against Kanahaiya  Bux Singh and his family, how strange it is  that Kanahaiya  Bux Singh his sister Chandrawali and his  brother Kishan  Pal  Singh  should  have  been  allowed  to,  escape unscathed  when  they  were within the  easy  reach  of  the accused; and how strange again that Bhagwan Bux, Ram  Dulari and  Raja  Munni  should  escape as  if  through  a  passing household   scramble.    The  accused,  according   to   the prosecution, pooled their strength to murder a foe-Kanahaiya Bux Singh-but murdered through mistake a ’friend  Vishwanath Panda-and for no apparent reason, an innocent servant.   Ram Gopal. 12--602 CI/74 590 The  incident  leading to this appeal took  place  at  about 11.30 p. m. on August, 27, 1968 in the village of Kunwarpur, district Lucknow. kunwarpur is a tiny village consisting  of but  ten  houses.   The complainant,  Thakur  Kanahaiya  Bux Singh,  lived  with  his family in one  house,  while  three houses  were  in  the  occupation of five  out  of  the  ten accused:   Badlu,  Manohar,  Chhotey  Lal,   Jagannath   and Dhaniram.   The  remaining  five  belonged  to  neighbouring villages. There  were disputes between the complainant and one  Bindra Ahir  over  a plot of land, which led to  proceedings  under sections  107 and 117, Criminal Procedure Code.  One of  the accused, Manohar, is Bindra’s son, two of them are  Bindra’s brothers, two are his cousins while three are his  brothers- in  law.   In  one  way or another,  all  the  accused  are. connected inter se.  The complainant lived in a spacious house and had a  fairly large family.  On the 27th evening, Vishwanath Panda and his mother  Birja arrived at the complainant’s house on  one  of their routine visits to the ’jijmans’.  Vishwanath’s  father was a family priest of the complainant and after his  death, Vishwanath  took  up that mantle.  Birja used  to  accompany Vishwanath  on  his  visits  to  the  patrons.   It  is   of significant   relevance   that   Vishwanath’s   father   and thereafter  lie  ’himself were also family  priests  of  the accused belonging to Kunwarpur. The  terrace  over the complainant’s house is  divided  into separate  portions which are described in these  proceedings as so many roofs. On the night of the 27th the  complainant, his brother Kishan Pal Singh and his sister Chandrawali were sleeping on the roof situated in the north-western corner of the  house.  Vishwanath Panda, his mother Birja Rama  Dualri the  mother  of the complainant, and her sister  Raja  Munni were sleeping on the roof situated in the north-east corner, on  the south-west were sleeping Bhagwan Bux, a  twelve-year old brother of the complainant and Ram Gopal. a servant. The case of the prosecution is that at about 11.30 p, m.  on August  27,  the  ten accused climbed to  the  roof  of  the complainant’s house by placing a ladder on the south-eastern side.  The accused divided themselves into two groups:  five of  them, namely Badlu, Manohar, Chhotey Lal, putti Lal  and Hira  Lal went to the place where Vishwanath  Panda,  Birja,

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Ram  Dulari  and  Raja  Munni  were  sleeping.   This  group ,committed  the murder of Vishwanath and caused injuries  to the  three  ladies.  The other group comprising  Dhani  Ram, Jagannath,  Daya Shanker, Mohan Lal and Hari Prasad went  to the  place  where  Ram  Gopal and  Bhagwan  Bux  Singh  were sleeping.  This group committed the murder of Ram Gopal  and caused injuries to Bhagwan Bux Singh’, Kanahaiya Bux  Singh, his brother Kishan Pal Singh and his sister Chandrawali  who were sleeping on the north-western part of the roof  escaped stealthily to a Chappar and concealed themselves behind  the old clothes lying therein.  It is alleged that a lantern was burning near the place where Vishwanath was sleeping and the accused  were  identified in the light of  that  lantern  by Kahahaiya Bux 591 Singh,  Chandrawali,  Kishan Pal Singh, Birja,  Raja  Munni, Bhagwan Bux Singh and Ram Dulari.  These, respectively,  are prosecution witnesses 1 to 5, 7 and 8. Vishwanath  received two formidable incised injuries on  his head  and a long linear cut on his chest.  On the person  of Ram Gopal were found 17 incised injuries, a linear cut and a contusion.  Birja received 3 incised injuries , a  lacerated wound and an abrasion.  Almost all of these were  skin-deep. Ram  Dulari  had three incised injuries on her  person,  one being  muscle-deep  and  the other  bone-deep.   Raja  Munni received a muscle-deep incised injury behind her right  ear. Bhagwan Bux Singh had one incised injury on his person. The  complainant lodged the First Information Report at  the Itaunja  police  station through the son of a  Chaukidar  at about  9.15 a.m. on the 28th.  The names of all the  accused are  mentioned therein together with the weapons wielded  by them on the previous night. The learned Sessions Judge accepted the evidence of the eye- witnesses and held that all of the ten accused had formed an unlawful  assembly with the common object of committing  the murder  of  Kanahaiya Bux Singh and of causing hurt  to  the other members of his family, that they committed the  murder of  Vishwanath Panda, mistaking him for Kanahaiya Bux  Singh and  that they also committed the murder of Ram Gopal.   The five  accused belonging to Kunwarpur were sentenced  by  the learned  Judge to death while the other five were  sentenced to  imprisonment  for  life.  Varying  sentences  were  also imposed on the accused for the comparatively minor offences. In appeals Nos. 35 and 36 of 1970 filed by the accused,  the High  Court of Allahabad (Lucknow Bench) has set  aside  the order  of conviction and sentence and has acquitted all  the accused The State of Uttar Pradesh has filed this appeal  by special  leave against that judgment.  One of  the  accused, Putti Lal, died during the pendency of this appeal. The judgment of the High Court is perhaps open to the charge that, unconventionally, it has taken into consideration  the broad features of the case without discussing separately the evidence  of  each one of the  eyewitnesses.   The  judgment would  have  been of greater assistance to us  if  the  High Court had referred to the main points in the evidence of the important  witnesses,  but in view of  the  rather  peculiar facts of the case we are not prepared to say that the method adopted by the High Court has caused failure of justice. The fate of the entire case depends on the question  whether a lantern was burning near the place where Vishwanath  Panda was  sleeping. it is in the light of that lantern  that  the several  witnesses  are  alleged  to  have  identified   the respondent.   Having considered the evidence of the  various witnesses  we are of the view that the High Court was  right in  coming  to  the conclusion that  the  existence  of  the

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lantern is open to grave doubt. The  respondent had no motive whatsoever for committing  the murder  of Vishwanath or for causing injuries to his  mother Birja. 592 Vishwanath’s   father,  and  after  his  ’death   Vishwanath himself,  was  the  priest  of  the  group  of  accused  who committed  his  murder.   It is  said  that  Vishwanath  was murdered  through an error as the accused who assaulted  him mistook  him for the complainant, Kanahaiya Bux  Singh.   If the lantern was burning just near the place where Vishwanath was  sleeping,  it  is difficult to appreciate  how  such  a mistake  could  have  been  committed.   It  is  urged  that Vishwanath  and  the complainant were of the  same  age  and complexion  and  since Vishwanaths’ face was away  from  the lantern,  the  accused  must  have  mistaken  him  for   the complainant.  Assuming for the sake of argument that such  a mistake was initially committed, there is no reason why  the five  accused  should continue to assault  Vishwanath  after they had discovered their mistake.  Birja has stated in  her evidence  that she woke up immediately after the first  blow was   given  to  Vishwanath  and  she  asked   the   accused imploringly  as  to why they were beating their  own  Panda. Birja says that thereafter the five accused not only  conti- nued  to  assault Vishwanath but they  also  assaulted  her, knocking  out  her  teeth  in the  process.   This,  is  our opinion,  clearly  shows that Vishwanath was  not  assaulted through an error or an oversight.  The accused evidently had no  motive to assault him which tends to show that they  had not participated in the murder of Vishwanath. We  also find it difficult to believe that though a  lantern was  burning  just  near  the  place  where  Vishwanath  was sleeping,  the  accused were unable to identify  him.   They knew  Vishwanath intimately and it is highly  unlikely  that they would commit a mistake of such a grave nature.  Indeed, if  the  various  eye-witnesses were able  to  identify  the accused in the light of the lantern, the accused should have been able to identify Vishwanath. The  case of the prosecution is that the real target of  the accused was the complainant Kanahaiya Bux Singh. if that  be so it seems to us surprising that though he was sleeping  on one  of the roofs, none of the accused should have made  any effort  to  follow him into Chappar or to trace him  in  any other part of the house after Vishwanath and Ram Gopal  were done to death.  Kanahaiya Bux Singh his, brother Kishan  Pal Singh  and  his sister Chandrawali have told a  story  which strikes us as highly imaginative.  All the three claim  that they  walked into the Chappar, covered themselves  with  old clothes,  kept  their  eyes uncovered  and  saw  the  entire incident through small slits.  If at all the complainant and the  other two persons were sleeping on the roof  they  must have  run  away  to  a  safe  distance.   But  the   greater probability  is that this group was sleeping on  the  ground floor  of the house and not on the roof at  all.   Kanahaiya Bux  Singh’s wife, his daughter and  Chandrawali’s  children were   admittedly  sleeping  on  the  ground  floor.    That eliminates  the possibility that the incident was  witnessed by Kanahaiya Bux Singh, Chandrawali and Kishan Pal Singh. Learned  counsel for the State has placed great reliance  on evidence  of  Vishwanath’s mother Birja.  He  contends  that Birja is an independent witness, that she has no motive  for implicating the 593 accused  falsely  and  that her evidence in  regard  to  the identification must be accepted as true.  Birja  undoubtedly

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is  an independent _witness but if there was no  lantern  on the  roof,  she  could  not  have  possibly  identified  the accused.   The  judgement  of  the  learned  Sessions  Judge contains a statement. that it was an admitted position  that if  there  was no lantern burning, it was  not  possible  to identify the assailants.  It seems that on the next morning, the  large crowed of neighbours which gathered at the  scene of  offence ventured into the usual speculative guesses  and Birja,  having lost her son, readily believed that what  was guessed  was  true.   That  explains  why  Birja   persuaded herself  to  say that Kanahaiya Bux Singh,  Chandrawali  and Kishan  Pal  Singh  were sleeping on  the  roof  though,  as indicated  above, the greater probability is that they  were sleeping on the ground floor. It   is  important  in  this  connection  that   the   First Information  Report  contains a statement that  Birju  Pasi, Ganeshi  Pasi and several others had responded to the  alarm raised  by the members of the complainant’s family.  In  the Sessions Court the complainant stated that immediately after the occurrence, Birju and Ganeshi came to his house and that he  had narrated to them what had happened.  None  of  these persons  has been examined by the prosecution and no  reason was shown as to why they were not examined. Learned counsel for the State argued that it was open to  us to  examine  the evidence apart from  the  question  whether Vishwanath was assaulted through mistaken identity.  We  are unable to accept this argument.  The very foundation of  the prosecution case is that the accused had a motive to  commit the murder of the complainant, that they mistook  Vishwanath for  the complainant and that Vishwanath was murdered  as  a result  of this unfortunate mistake.  It is not open to  the prosecution to ask the court to discard the very  substratum of  their  care and to construct a new theory founded  on  a hypothesis presented for the first time before us. We  are  therefore in agreement with the view taken  by  the High  Court that the occurrence took place, under  cover  of darkness  and that in the absence of any light, none of  the prosecution  witnesses could have identified  the  culprits. We therefore confirm the order of acquittal under which  the accused  have  been given the benefit of doubt  and  dismiss this  appeal.  The bail bonds shall be cancelled and if  any of the accused are in jail they shall be set at property. P.B.R.                    Appeal dismissed. 594