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PETITIONER: STATE OF U.P.

       Vs.

RESPONDENT: ROOP SINGH & OTHERS

DATE OF JUDGMENT12/09/1995

BENCH: AHMADI A.M. (CJ) BENCH: AHMADI A.M. (CJ) BHARUCHA S.P. (J) PARIPOORNAN, K.S.(J)

CITATION:  1996 AIR  215            JT 1995 (6)   479  1995 SCALE  (5)264

ACT:

HEADNOTE:

JUDGMENT:                        J U D G M E N T Ahmadi, CJI      This appeal  by the  State of Uttar Pradesh is directed against the  order of  acquittal passed by the High Court on 19th May,  1991 in  reversal  of  the  order  of  conviction recorded by the Ist Additional Sessions Judge, Farukhabad by which the respondents were convicted under Sections 302/149, IPC, and  were sentenced  to suffer  imprisonment for  life. They were  also convicted  under Section  147, IPC, and were ordered to  suffer rigorous  imprisonment for one year. Both the sentences  were to  run concurrently. Briefly stated the facts are these:      On the  morning of 23rd April, 1977, PW.3 Beti Devi had gone to ease herself when Bhanwarpal, since deceased, teased her which  was noticed  by the girl’s uncle Rambir Singh who reprimanded the  former. This  led  to  a  heated  argument. Bhanwarpal left  in a  huff threatening  to see  him. On the same day  at about  12.30 p.m.  when Rambir  Singh was  near Gulu’s ‘Madhiya’  (a shed with a roof but open on all sides) along with  Deopal Singh  and Babu  Singh,  the  respondents along with  Bhanwarpal came  there  armed  with  sticks  and lathis and  launched an  assault on  them. Deopal  Singh and Babu Singh  had knives  which they  wielded in self defence. But both  of them  were killed and Rambir Singh tried to run away but  he too  was chased  and killed  near a mango tree. Ganga Singh  brother of  Rambir singh  went  to  the  police station and  lodged  his  FIR  at  about  1.50  p.m.  During investigation two knives were recovered from the place where the deceased Deopal Singh and Babu Singh were lying.      The defence  version is  that there  was an altercation between Rambir  Singh and  Bhanwarpal around  10.00 a.m.  at which the  former was  very angry.  At about 12.30 p.m. Roop Singh and  Bhanwarpal had  gone to  the village  and feeling tired the  latter sat  in Gulu’s ‘Madhiya’ to rest. While he

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was resting  there he  was surrounded by Rambir Singh, Kedar Singh, Gyan  Singh, Babu  Singh and  Deopal  Singh  and  was stabbed to  death. Because  of the  hue and  cry  raised  by Bhanwarpal, since  deceased, and  Roop Singh, members of the public came there and attacked the assailants with lathis to rescue the  victim. In the course of this attack lathi blows were sustained  by the assailants resulting in loss of life. Thus, the  respondents  contend  that  the  assault  by  the villagers was  responsible for  the death  of Rambir  Singh, Deopal Singh and Babu Singh whereas Bhanwarpal was killed by the last  two. Find  of knives  from near the dead bodies of the said  two persons  is  projected  as  corroborating  the defence version.  Bhanwarpal Singh  had  three  incised  and three penetrating  stab wounds. Roop Singh lodged the FIR at 1.40 p.m.      There is no dispute that the incident happened in which in all four lives were lost. The medical evidence shows that Rambir Singh, Deopal Singh and Babu Singh died on account of lathi blows received by them whereas Bhanwarpal died of stab wounds. The  find of  blood and knives establishes the place of the  incident. Both  sides had lodged complaints with the police, the  respondents’ side  at about 1.50 p.m. There is, therefore, no  dispute that  all the four met with homicidal deaths.      The prosecution  examined four  witnesses, namely  PW.1 Ganga Singh  brother of  deceased Rambir  Singh, PW.2  Usman Khan, PW.3 Beti Devi and PW.4 Gyan Singh as eye witnesses to the occurrence  whereas the  defence  relied  on  the  dying declaration of  deceased Bhanwarpal Singh and the FIR lodged by Roop  Singh wherein  the case set up is that the three of the prosecution  side were  killed by  the villagers and not the respondents. As stated earlier the trial court convicted the respondents  but the  High Court  acquitted them holding that the  respondents  had  caused  the  injuries  in  self- defence. Four defence-witnesses were also examined.      The time  of the  incident is not in dispute. As to the place  of   the  incident   there  are   two  versions.  The prosecution case  is that they were assaulted outside Gulu’s shed and it was in the course of the said attack that Deopal Singh and  Babu Singh used their knives in self-defence. The respondent contend  that the  assault was launched by Deopal Singh and Babu Singh with knives when Bhanwarpal was sitting inside the  shed and  this fact  they say is corroborated by the find  of blood  from that place. Unfortunately the blood soaked earth  was not  sent to  the chemical analyst and the serologist with the result that it is difficult to say if it was of  Bhanwarpal or  as urged  by the  prosecution that it could be  of Deopal  Singh  and  Babu  Singh  who  may  have staggered into  the shed.  The High  Court has  accepted the defence version  and disbelieved  the prosecution story that the  two  had  pulled  out  their  knives  after  they  were attacked.      PW.3 Beti  Devi is  the young  girl who  was teased  by Bhanwarpal in  the morning  and her  uncle Rambir  Singh had reprimanded the  former which led to a heated exchange. That was the  immediate cause  for the subsequent incident in the afternoon. PW.1 Ganga Singh lodged the FIR wherein reference was made  to the  morning incident.  The prosecution case is that in  the afternoon  when the  three deceased persons and PW.1  were   returning  after   purchasing   medicine   from Gursahaiganj they  were attacked  by  the  respondents  near Gulu’s shed  in Ismailpur.  There is  no  dispute  that  the police station  being one and a half miles from the place of occurrence, there  was  no  delay  in  the  lodging  of  the complaint, the respondents side lodged it ten minutes before

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the prosecution  side. Therefore,  if any  weight is  to  be given to  the prompt lodging of the FIR we do not think that either side can claim to score over the other.      The immediate  cause for  the incident is not in doubt. PW.3 Beti  Devi has proved it and is corroborated by the FIR lodged by PW.1 Ganga Singh. In a village such an incident in which a  young lady  of  20  or  22  is  involved  is  taken seriously. Therefore,  it is  quite possible  that her uncle Rambir Singh  had  not  taken  the  behavior  of  Bhanwarpal kindly. He  must have  lost his  temper.  While  he  may  be justifiably annoyed  with Bhanwarpal,  if he had crossed his limits it  is quite  possible that  the latter may have felt insulted. This much for the morning incident.      The learned  Additional  Sessions  Judge  accepted  the prosecution version  regarding the incident and rejected the defence as  improbable. According  to him, the plea of self- defence is  not borne  out from  evidence, direct as well as circumstantial. The morning incident may have annoyed Rambir Singh, but  so far as he is concerned, it had come to an end because if  he wanted to do any harm to Bhanwarpal Singh, he had the  opportunity to do so in the morning itself when the latter  was   alone.  The   greater  possibility   was  that Bhanwarpal Singh  felt insulted  and annoyed  and carried  a desire for  revenge. It  is, therefore, possible that he and his companions,  having come  to know  that Rambir Singh and others had  gone to purchase medicine and would pass by that way on  return, waited for them and when they passed by, the assault was  launched. The story that after Bhanwarpal Singh was fatally  injured, third  persons, namely,  villagers who had nothing  to do  with the  dispute intervened causing the death of  all the three persons is difficult to accept. Even if villagers were to intervene, they would intervene for the limited purpose of separating the feuding sides, not to kill members of  one side;  they would not show such animosity as to chase  Rambir Singh  and kill him. In any case, according to the  learned Judge, there was absolutely no justification for chasing  and killing  Rambir Singh  even if  one were to assume that  villagers had  attacked Deopal  Singh and  Babu Singh. Lastly,  he noticed  that if  there was  any ring  of truth in  the defence version, it is difficult to appreciate why PW.1  Ganga Singh  would allow  the real culprits of his close relatives to escape while naming the assailants.      The High  Court on  the other  hand  refused  to  place reliance on  the prosecution  witnesses and  found a ring of truth in  the defence version for the two reasons, (i) blood was found in Gulu’s ‘Madhiya’ and (ii) two knives were lying near about  the dead  bodies of Deopal Singh and Babu Singh. The High  Court doubted  the prosecution  version  that  the assault was  launched by  the defence  side and Deopal Singh and Babu  Singh had used the knives which they were carrying in self-defence.  In taking  this view, it noted that if the prosecution version was correct, the two deceased would have had no opportunity to take out their knives from their waist as  even  that  fraction  of  a  movement  would  have  been sufficient for the assailants to finish them. That is why it was inclined  to think  that the  two deceased  persons  who happened to be the sons-in-law of the  complainant must have launched the  assault. It  is only then that they would have been able  to cause  as many  injuries as  they did  on  the person of Bhanwarpal Singh. It also thought that the defence version that  he was  attacked by  as many as 4 persons with knives was  probable having  regard to  the number  of  stab injuries sustained by him. In this connection, reference has been made  to the  evidence of the defence witness Dr. S. C. Dubey. The other facet highlighted by the High Court is that

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if the  prosecution version  was correct, it is difficult to understand why  only one person received knife injuries when the two  sons-in-law of  PW.1 were being attacked by as many as 7  persons with  lathis and  sticks. It  is difficult  to believe  that  only  one  person  would  receive  the  knife injuries and  all others would go scot-free. On this line of reasoning the  High Court  came to  the conclusion  that the defence version was more probable and accepted the theory of self-defence propounded  by the  accused.  The  High  Court, therefore,  reversed   the  conviction   and  acquitted  the accused.      As pointed  out earlier,  there is no dispute in regard to the  morning incident.  Bhanwarpal Singh had made certain indecent and  suggestive gestures  when PW.3  Beti Devi  had gone out  to ease  herself. Being  a young  lady of 20 or 22 years, Rambir  Singh justifiably  lost his  tamper  when  he noticed the misdemeanour of Bhanwarpal Singh. He reprimanded the delinquent  whereupon he  left in  a  huff.  As  rightly pointed out  by the  trial court  if Rambir  Singh wanted to physically assault  Bhanwarpal Singh,  he had the reason and opportunity to  do so  at that  very point of time and would not  have  allowed  Bhanwarpal  Singh  to  leave  the  place unharmed. Therefore, so far as Rambir Singh is concerned, he took the  morning incident as closed. But as rightly pointed out by  the trial  court the possibility of Bhanwarpal Singh smarting under  the morning  insult could  not be ruled out. Secondly, the  High Court does not deal with the probability of the  defence version  from the  point as to why villagers who had  no axe  to grind launched a fatal attack on all the three persons  and should show such venom as to chase Rambir Singh who  was running away from the scene of occurrence and kill him  under a  mango tree.  The High  Court  is  totally silent on  this aspect  of the case. The theory that all the four persons  on the prosecution side were armed with knives is also  not corroborated  since only  two knives were found lying near  the dead  bodies of Deopal Singh and Babu Singh. No  other  knife  was  found  from  or  near  the  scene  of occurrence or  on the  person of  Rambir Singh.  PW.1  Ganga Singh was  not named  as one  of the assailants in the cross complaint lodged  by Roop Singh. This aspect of the case has also been  over-ruled by the High Court. The situation which then emerges  is that  after the morning incident Bhanwarpal Singh felt  insulted and  smarting under  that insult he was perhaps keen  to take revenge. He  must have learnt that the members of  the  prosecution  party  had  gone  to  purchase medicine and  would be  returning via  Gulu’s shed.  It  is, therefore, quite  probable that he and the other respondents were waiting  for them  to return. It is an established fact that both  Deopal Singh and Babu Singh were carrying knives. The find of blood from Gulu’s shed is one feature which must be kept in mind. But at the same time, it must be remembered that the  Investigating Officer had not bothered to send the blood stained  earth  which  he  claims  to  have  recovered therefrom  to  the  Chemical  Analyser  and  Serologist  for report. Even the blood groups of Deopal Singh and Babu Singh was not  secured by  scientific  analysis.  The  clothes  of Bhanwarpal Singh  must also  have been  drenched with blood, but no  attempt was  made to  ascertain his  blood group and match it  with the  blood group  of the blood found in blood stained earth.  The Investigating  Officer  was,  therefore, rather casual  in his  approach though  this was  a case  of triple murder  and fatal  serious injuries  were  caused  to Bhanwarpal Singh  who died a few days later in the hospital. The High  Court placed  reliance on the dying declaration of Bhanwarpal Singh recorded by the Medical Officer but did not

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deal with  the reasons which weighed with the trial court in rejecting that  piece of  evidence. We  are afraid that even the approach of the High Court leaves much to be desired. If we consider  it probable  that it  was Bhanwarpal  Singh who felt  insulted  and  had  reason  to  take  revenge,  it  is difficult to  proceed on  the premise  that the  attack  was launched by  the prosecution  side. At  the same  time it is intriguing how  only Bhanwarpal  Singh received all the stab wounds from  Deopal Singh and Babu Singh. As we have pointed out earlier, the deceased Bhanwarpal Singh had three incised wounds, first  on the  back of  the left fore-arm, second on the right  side of  the epigastric  region and  third on the outer  side  of  the  second  injury,  while  he  had  three penetrating wounds  on  the  abdominal  side.  When  he  was admitted to  the hospital  at about  1.30 p.m. his condition was poor  and his pulse rate was low. This is clear from the evidence of  DW.4 Dr.  S. C.  Dubey. DW.1 Dr. K. K. Aggarwal had conducted the post-mortem on the dead body of Bhanwarpal Singh after  he passed  away on 29th April, 1977 i.e. 6 days after the  incident. His  evidence shows that he had noticed certain stitched  wounds at  the places  noticed by Dr. S.C. Dubey. No  other member  of the  defence side  sustained any stab injuries.  This would  go to  reveal that  the  initial attack or fight was between Bhanwarpal Singh on the one hand and Deopal  Singh and Babu Singh on the other hand. It would be seen  that while  the attack  was launched  by Bhanwarpal Singh, the  other two  got the  better of  him and inflicted knife injuries  on him.  Immediately  thereafter  the  other members of  Bhanwarpal’s  party  launched  the  attack  with lathis and  sticks on  Deopal  Singh  and  Babu  Singh.  The evidence of  Dr. Bansal  shows that  Deopal Singh  had  four lacerated wounds,  first, on  the back  of the head over the left side  which was  scalp deep; second, on the left elbow, third, on  the left  side of  the thigh and the fourth, over the left front of the left leg. He also had a contusion over the left  side of  the neck,  possibly a continuation of the first mentioned  lacerated wound. There was an abrasion also on the  left side  of the fore-head and an abraded contusion over the  right fore-arm.  This would  show that lathi blows were showered  on him  and the most serious blow fell on the left side  at the  back of the head. So far as Babu Singh is concerned, he  had three  laceration, the first over back of the head  which was scalp deep, the second over the right of the head  and the  third over  the left side of the head. He had multiple  abrasion over  the right  shoulder and deltoid region, an  abraded contusion on the back of the right fore- arm, an  abrasion on  the right  leg, swelling over the neck and multiple  contusions all over the back. This would go to show that  lathi blows  were showered  on  him  and  he  was ultimately  strangulated   to  death.  This  would  give  an indication of the nature of assault on these two persons. In the course  of such  an assault  by several  lathi  wielding assailants, the  High Court  is right in suspecting why only Bhanwarpal  Singh   received  knife   injuries.  It   would, therefore, seem  that the  more  probable  version  is  that although Bhanwarpal  Singh may  have initiated  the assault, the other  two got  the better  of him, stabbed him and only thereafter the  others assaulted  him to free him from their clutches. To  that extent  it can be said that they acted in self-defence. But  when Rambir  Singh saw his two companions being killed in this ruthless manner he got scared and tried to run  away from  the scene  of  occurrence.  There  is  no evidence worth  the name  to show  that he  was armed with a knife or  any other weapon. No one has tried to question the correctness of  the prosecution  evidence that  his body was

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found almost  a furlong  away from  the place  of occurrence under a  mango tree.  If that  is so,  the evidence  of  the prosecution witnesses  that after he ran away from the scene of occurrence,  the respondents chased him, overtook him and thereafter killed him appears credible. The find of the body from under  the mango  tree is strong corroborative evidence in favour  of the prosecution version as regards the killing of Rambir  Singh. There  was no question of any self-defence because Rambir  Singh was running away and the defence party had nothing  to fear  from him.  In fact  it was their venom which led  them to chase him and kill him. He was a helpless unarmed person.  This aspect  of  the  prosecution  case  is difficult to  doubt even  though there  may be  some lurking doubt in  regard to  the correctness  of the  genesis of the incident near  Gulu’s shed. There is also considerable force in  the  trial  court’s  reasoning  that  while  it  may  be understandable  that   the  complainant  may  involve  false persons, it  is not  possible to believe that he would allow the real  culprits to escape. Therefore, the theory that the villagers had  launched an  attack on  both Deopal Singh and Babu Singh  and later  on  Rambir  Singh,  is  difficult  to believe. It  is, therefore, difficult to believe the defence version that  the assault  was launched  by villagers. It is here that  the defence version collapses. Therefore, even if we were  to give  the benefit  of doubt  in  regard  to  the killing  of   Deopal  Singh   and  Babu  Singh  because  the prosecution version  is suspect, there is no question of any doubt or  any right of self-defence so far as the killing of Rambir Singh  is concerned.  It must  also be  realised that besides, PW.1 we have the evidence of an independent witness PW.2 Usman  Khan who  largely supports  and corroborates the evidence of  PW.1 Ganga  Singh. The evidence of this witness was sought  to be  brushed aside on the ground that he was a chance witness  and that  he belonged to another village and had no  particular reason  to be  present at  the  scene  of occurrence. In the first place it is necessary to notice the fact that  his name  finds mention  in the first information report promptly  lodged by PW.1 Ganga Singh. Secondly, it is difficult to imagine how the name of this witness would come to the  mind of  the complainant and how he would be assured that the  witness would  support him  when he had no time to manipulate.   PW.2 Usman  Khan has given a cogent reason for his presence  near the  scene of  occurrence. He had gone to see the  operator of  the tubewell at Ismailpur and was near the public  road when he saw the occurrence at some distance therefrom. There  is no  reason why  PW.2 Usman  Khan  would stick his  neck out if he had not seen the incident. Nothing has been brought on record to show that he was in any manner close to  the prosecution  side or  inimical to the defence. The defence  tried to lead evidence to negative his presence through the  evidence of DW.2 Sukhwashi Lal and DW.3 Kailash Singh. But the trial court rightly pointed out in paragraphs 24 and  25 of  the judgment  that  their  evidence  did  not negative the  presence of  Usman Khan  on the public road, a little away from the place of occurrence. If that be so, the evidence of  Usman Khan, a wholly independent witness, lends sufficient corroboration  to the  prosecution  version  that after Rambir  Singh fled  away from the scene of occurrence, he was  chased, overtaken  and  killed  by  respondents.  As pointed out earlier so far as the killing of Rambir Singh is concerned his assailants can have no right of self-defence.      For the  above reasons  we are  of the opinion that the High Court  was wrong  in reversing  the order of conviction and sentence  recorded by  the  Additional  Sessions  Judge, Farukhabad. We,  therefore, set aside the order of acquittal

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recorded by  the High  Court and  restore the  order of  the learned trial  Judge. The  respondents  will  surrender  and serve out their sentence. Warrants for their arrest to issue by the trial court. Appeal is allowed accordingly.