REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 362-363 OF 2002

State of U.P. ..Appellant

Versus

Sheo Lal & Ors. ..Respondents

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Challenge in these appeals is to the judgment of a Division Bench of

the Allahabad High Court  directing acquittal  of the respondents.   By the

impugned judgment two appeals were disposed of.  The appellant-accused

in each case had questioned correctness of the judgment rendered by learned

9th Additional Sessions Judge, Kanpur in ST Case Nos. 190 of 1979 and 212

of 1979. Each was convicted for offence punishable under Section 302 read

with Section 34 and Section 323 read with Section 34 of the Indian Penal

Code,   1860  (in  short  the  ‘IPC’)  respectively.  Additionally,  accused

Surender was convicted for offence punishable under Section 354 IPC.

2. Prosecution version as unfolded during trial is as follows:

In the evening of 20.3.1979 at about 6.00 pm Km. Sharmi (PW 4) was

going to attend the call of nature.  She was moving few steps ahead of Km.

Munni.   It  is  alleged  that  at  the  relevant  moment  Surendra  and  Suresh

accosted Km. Sharmi. They told her to accompany them into Arhar field and

with that intent they also held her hands. On the alarm raised by her Km.

Munni rushed to her rescue. At this, both the accused persons took to their

heels. On her return to the house, Km Sharmi (P.W.4) narrated the incident

to  her  maternal  uncle  Krishanapal,  the  deceased  in  the  incident,  and

Vijaypal (P.W.3). Both the brothers, went to the house of accused Sheo Lal,

and made a complaint about the shameful behavior of his son and nephew.

Having made the complaint they came back to their house.

The deceased, Krishnapal, and his brother Vijayapal were relaxing

and smoking Bidis on the Chabutara, which abuts their house. A burning

lantern was also hanging near the grass-cutting machine. A lamp was also

burning at the main door of the house.

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At about 8.00 P.M. Sheo Lal accompanied by Suresh and Surendra

came to  the  house  of  Krishanapal,  deceased.  Sheo  Lal  and Suresh  were

armed with Lathis and Surendra was armed with a knife. Immediately on

their  arrival  near  the  deceased,  they started  hurling  abuses  and said  that

since  they  are  maligning  his  family,  inflicted  lathi  injuries  upon  the

deceased and Surendra attacked him with knife. The hue and cry raised by

the  deceased  attracted  Ratipal  (P.W1),  Chandrapal  (P.W.2),  Km. Sharmi

(P.W.4)  and  some  other  family  members  to  the  spot.  Ratipal  was  also

possessing a torch in his  hand.  Chandrapal  was also attacked with  lathis

when he tried to intercede. He had sustained lathi injuries. As a result of the

injuries  sustained,  Krishanapal  fell  down  and  died  instantaneously.  The

accused persons withdrew thereafter.

The  F.I.R.  of  the  incident  was  lodged  by  Vijaypal  (P.W.3).  The

written report is Ext. Ka.l. It was scribed by Rampal and was lodged at P.S.

Bidhnoo  at  11.15  P.M.  He  was  accompanied  to  the  police  station  by

Ratipal, Chandrapal and Rampal. The chick is Ext. Ka. 2. It was prepared

by P.W. Lallan Singh, Head Moharir.

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Chandrapal (P.W.2) was sent from the police station to the Primary

Health  Center,  Bidhnoo for medical  examination of his  injuries.  He was

escorted by constable Mahipal (P.W.5), for that purpose.

After  completion  of  investigation  charge  sheet  was  filed.   As  the

accused persons pleaded innocence trial was held.  The trial court recorded

conviction.  As noted above separate appeals were filed by each one of the

accused persons which were disposed of by the common judgment directing

their acquittal.  The stand of the accused appellant before the High Court

was  that  the  motive  suggested  is  clearly  unacceptable  as  the  parties  are

inter-se related and it is improbable that the accused persons will tried to

molest their cousin (PW 4) in the manner as alleged by the prosecution. It

was submitted that the incident has not occurred in the manner alleged and

the FIR was ante dated. The trial court placed reliance on the evidence of

four eye witnesses PW 1 to PW4.  The High Court noted that so far as the

motive is concerned the only witness is PW 4. The High Court accepted the

defence  version  that  the motive  was  not  established  and  the accusations

were also not established.  Accordingly, it directed acquittal.

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3. In support of the appeals, learned counsel for the appellant submitted

that the conclusions of the High Court are absolutely unsustainable.  What

appears  to  have  weighed  with  the  High  Court  to  doubt  versity  of

prosecution  version  is  the  introduction  of  a  witness  i.e.  Munni  Devi

regarding  the  motive.  The  conclusions  are  based  on  presumption  and

surmises.  There were contradictory observations and no reason has been

indicated to discard the version of the injured eye witnesses.   

4. In  response,  learned  counsel  for  the  respondents  supported  the

judgment of the High Court.   

5. One of the prime reasons indicated by the High Court to discard the

prosecution version is that in a dark night the possibility of identification

was not there.  The source of light for identification was not mentioned in

the FIR.  It is significant to note that there were four of the witnesses and

some of  them were  injured  in  the  incidence.   PW2 was  an  injured  eye

witness.   His  evidence  has  been  discarded on the  ground that  the  injury

sustained by him was a typical bruise.  The following observations of the

High Court show total non application of mind.

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“Now  we  take  up  the  testimony  of  Chandrapal

(P.W.2), who, according to the prosecution, is an injured

witness. He has sustained these injuries while trying to

intervene.  His  injury  was  examined  on  20-3-1979  at

11.30 p.m. His medical  examination was conducted by

Dr.  A.K.  Shukla  (P.W.8).  This  witness  has  sustained

only a solitary contusion. The injury is 21 cm.x 15 cm.

On the left side of back crossing the spine upto the right

side at the level of fourth vertebral column. The injury

was  simple  and  was  fresh  at  the  time  of  medical

examination. The Doctor has not noted the color of this

injury. He stated that by writing `fresh' he meant that the

injury was 2/3  hours  old.  He has  made the entry with

regard  to  this  injury  in  the  out  door  patients'  register.

When this doctor was examined in court, the injured was

not present before him. He has not noted down the depth

of the bruise. He had admitted that these bruises could be

managed with a chemical. He had stated in court that the

injury  sustained  by  injured  Chandrapal  was  a  typical

bruise. It was depressed in the middle and the edges were

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slightly raised, but when probed further he admitted that

these facts,  were  not  noted down by him in the injury

report or any where else.”

6. Merely becasuse the colour of the injury was not noted and the doctor

has  written  that  the  injury  was  fresh,  that  is  no  ground  to  discard  his

evidence.  The High Court has also attached unnecessary importance to the

fact that one witness stated that the assault continued for 8 to 10 minutes

while another said it was around three minutes. The doctor’s evidence was

discarded on the ground that his testimony was of poor quality and does not

inspire  confidence.  The  injury  appeared  to  be  manufactured  one.  The

judgment is full of contradictions. As stated above, the High Court at one

place noticed that it is improbable that the accused person who was cousin

of PW 4 tried to molest her.  In the same breath the High Court in another

place  has  held  that  the  accused  persons  to  molest  PW 4  at  a  particular

moment  took  her  to  the  Arhar  field  and  this  was  done  with  her  prior

consent.  The High Court goes further to say that there was no planning in

the act and had appeared to be chance meeting which led to it. The absurdity

of the High Court’s conclusions can be gauged from the fact that the High

Court found it unnatural that two girls of almost of the same age group were

walking and as to why one of them would move ahead and the other would

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come behind is unnatural. The High Court further has held that PW 3 stated

in Court that PW4 on her return told him that accused persons has teased

her  in  the  field.   The  High  Court  found fault  with  the  statement  on  the

ground that he did not tell before the police that the girl did not tell PW 3

that  the  accused  persons  held  her  hands.   So  far  as  the  High  Court’s

conclusions that there was non-mention of the source of light in the FIR it

needs  to  be  noted  that  the  accused  persons  were  not  strangers  to  the

witnesses.  They were closely related.

7. In  Nathuni Yadav v.  State of  Bihar [1998(9)  SCC 238] this  Court

observed that under what circumstances the lack of moonlight or artificial

light does not per se preclude identification of the assailants. It was noted as

follows: (SCC p. 242, para 9)

“Even assuming that there was no moonlight then, we have to  gauge  the  situation  carefully.  The proximity at  which  the assailants  would  have  confronted  with  the  injured,  the possibility of some light reaching there from the glow of stars, and  the  fact  that  the  murder  was  committed  on  a  roofless terrace are germane factors to be borne in mind while judging whether  the  victims  could  have  had  enough  visibility  to correctly identify the assailants. Over and above those factors, we must bear in mind the further fact that the assailants were no  strangers  to  the  inmates  of  the  tragedy-bound  house,  the eyewitnesses being well acquainted with the physiognomy of each  one  of  the  killers.  We are,  therefore,  not  persuaded  to assume that it would not have been possible for the victims to see  the  assailants  or  that  there  was  possibility  for  making  a wrong identification of them. We are keeping in mind the fact that even the assailants had enough light to identify the victims

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whom they  targeted  without  any mistake  from among  those who were sleeping on the terrace. If the light  then available, though meagre, was enough for the assailants why should we think that the same light was not enough for the injured who would certainly have pointedly focussed their eyes on the faces of the intruders standing in front of them. What is sauce for the goose is sauce for the gander.”

8. The position was reiterated in Bharosi v. State of M.P. [2002(7) SCC

239] and S. Sudershan Reddy v. State of A.P. [2006(10) SCC 163].

9. The High Court’s judgment therefore is clearly unsustainable and is

set aside.  The judgment of the trial court is restored. The respondents shall

surrender to custody forthwith to serve the remainder of sentence.   

10. Appeals are allowed.

  …………....…………………….J.           (Dr. ARIJIT PASAYAT)

………..…………………………J. (Dr. MUKUNDAKAM SHARMA)

New Delhi, February 12, 2009

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