http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

PETITIONER: SUBHASH & ANOTHER

       Vs.

RESPONDENT: STATE OF U.P.

DATE OF JUDGMENT06/05/1976

BENCH: CHANDRACHUD, Y.V. BENCH: CHANDRACHUD, Y.V. SARKARIA, RANJIT SINGH SHINGAL, P.N.

CITATION:  1976 AIR 1924            1976 SCR  587  1976 SCC  (3) 629

ACT:      Code  of   Criminal  Procedure,  S.  374-Reference  for confirmation of  death sentence,  whether High Court obliged to examine entire evidence independently.

HEADNOTE:      Ram Sanehi  received two  gun-shot wounds on his chest, and died  within ten minutes. Two of his children claimed to have witnessed  the occurrence.  The dead body was subjected to post-mortem  only after  about 24  hours had elapsed. The same evening,  appellant Subhash  surrendered, and appellant Shyam  Narain  was  arrested,  though  for  another  offence altogether. The  Sessions Court  convicted them under s. 302 I.P.C. and  sentenced Subhash  to death  and Shyam Narain to imprisonment for  life. The  accused moved the High Court in appeal, while  the Sessions  Court referred the matter to it under s. 374, for confirmation of the death-sentence.      The question before this Court was, whether in the case of such  references, the  High Court  was obliged to examine the entire evidence independently.      Allowing the appeal, the Court, ^      HELD: On  a reference  for confirmation of the sentence of death,  the High  Court is under an obligation to proceed in accordance with the provisions of sections 375 and 376 of the Criminal  Procedure Code.  The High  Court must not only see whether  the other order passed by the Sessions Court is correct but  it is under an obligation to examine the entire evidence for  itself, apart  from and  independently of  the Sessions Court’s  appraisal and assessment of that evidence. [589A-B]      Jumman and  Ors. v.  The State  of Punjab AIR 1957 S.C. 460; Ram  Shanker Singh  and Ors.  v. State  of West  Bengal [1962] Supp.  1 SCR  49 at  59 and  Bhupendra   Singh v. The State of Punjab [1968] 3 SCR 404, followed.

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 420 of 1974.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

    Appeal by  Special Leave  from the  Judgment and  Order dated 27-11-74  of the  Allahabad  High  Court  in  Criminal Appeal No. 2646/73 and Referred No. 95/73.      Frank Anthony,  E.C. Agarwala and A. T. M. Sampath; for the Appellants.      O.P. Rana; for the Respondent.      The Judgment of the Court was delivered by      CHANDRACHUD,  J.  The  appellants,  Subhash  and  Shyam Narain, were  convicted by  the learned  Civil and  Sessions Judge, Farrukhabad  under section  302 of  the Penal Code on the charge  that at  about 9  a.m.  on  June  9,  1972  they committed  the   murder  of  one  Ram  Sanehi.  Subhash  was sentenced to  death and  Shyam Narain  to  imprisonment  for life. The  judgment of the trial court having been confirmed in appeal  by the  High Court  of Allahabad, the two accused have filed this appeal by special leave of this Court. 588      The case  of the  prosecution is briefly as follows: on the morning of June 9, 1972 the deceased Ram Sanehi had gone to his field along with his son Bal Kishore and his daughter Kusuma Devi  for eating Kharbuzas. While they were returning from the  field at  about 9  a.m. the  appellants, who  were lying in  wait near a culvert, suddenly accosted Ram Sanehi. The Appeallent Subhash pointed the barred of his gun towards the chest of Ram Sanehi and said  that since he, Ram Sanehi, was a witness against him in a complaint filed by Pooran Lal and since  he was  also doing Pairvi on behalf of Pooran Lal he would not be allowed to remain alive. The appellant Shyam Narain was  armed      with a  lathi. Bal Kishore and Kusuma Devi pleaded  with the  appellants to spare their father but Shyam Narain  asked Subhash  not to  delay  the  matter  and finish Ram  Sanehi quickly.  Subhash thereupon  fired  three shots from  his double-barrelled  gun,  the  last  of  which misfired. Ram  Sanehi fell  down, whereupon  the  appellants dragged him by his legs over a distance of 6 or 7 paces. Bal Kishore and  Kusuma Devi then raised an alarm whereupon Brij Bhusan, Shyam  Lal Mangali  Prasad and  Jhabbo Singh  Thakur reached  the   place  of   occurecnce  and   challenged  the appellants. Before  running away, the appellant Subhash told his companion Shyam Narain that he on his own part was going to surrender  before a  court and  that Shyam  Narain should make his  own arrangements.  Ram Sanehi died within about 10 minutes after receiving the injuries.      Bal Kishore first went to his house which is at about a distance of 120 yards from the scene of offence. At about 12 o’clock at  noon he went to the Kamalgani police station and lodged  his   First  Information  Report  (Ex.  Ka-3).  S.I. Vishwanath Sharma  who was  posted as  a 2nd  officer at the police station recorded Bal Kishore’s complaint. went to the scene of  occurrence, prepared the inquest report and handed over  the   dead  body   for  being   sent  for  post-mortem examination to the District Hospital at Farrukhabad which is about 10 miles away form the village of Kandharpur where the incident took  place. S.I  Sharma took samples of earth from the place  of occurrence  an seized  a mis  fired  cartridge which was  lying concealed  in the  folds of  the deceased’s Dhoti. The  Fard in  that behalf  is Ex. Ka-10 and the site- plan is Ex. Ka-11.      The appellant Subhash surrendered before the Additional District Magistrate  (Judicial) at  Farrukhabad at  about  4 p.m. on  the  very  day.  The  appellant  Shyam  Narain  was arrested at  about 2-40  p.m. on  the same day under section 122  of  the  Railway  Act  for  crossing  The  railines  at Fatehgarh.      The  appellants   denied  the   charge  that  they  had

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

committed the  murder- of  Ram Sanehi  and stated  that they were involved  in the  case due  to enmity. This defence has been rejected both by the Sessions Court and the High Court.      Before referring  to the evidence in the case it has to be mentioned  that the High Court had before it not only the appeal filed by the accused but also a reference made by the Sessions Court  for confirma  tion of  the capital  sentence under section 374 of the Code of Criminal 589 Procedure. Time and again this Court has pointed out that on a reference  for confirmation  of the sentence of death, the High Court  is under  an obligation to proceed in accordance with the  provisions of sections 375 and 376 of the Criminal Procedure Code. Under these sections the High Court must not only see  whether the  order passed by the Sessions Court is correct but  it is under an obligation to examine the entire evidence for  itself, apart  from and  independently of  the Sessions Court’s  appraisal and assessment of that evidence. From the  long line  of decisions which have taken this view it would  be enough  to refer to the decisions in Jumman and ors. v.  The State  of Punjab,  Ram Shanker  Singh & ors. v. State of  West Bengal  and Bhupendra  Singh v.  The State of Punjab.      The High  Court has  failed to  show due regard to this well-established position  in law.  It did  not undertake  a full and  independent examination of the evidence led in the case and it mainly contented itself with finding out whether the Sessions  Court had  in any manner erred in reaching the conclusion that  the charge  of murder  levelled against the appellants was  established beyond  a reasonable  doubt. The High Court  is right in saying that the main question in the case was  whether Bal  Kishore  and  Kusuma  Devi  who  were examined as  eye-witnesses were truthful witnesses. But then it did  not subject  their evidence  to any minute scrutiny. Impressed  overbearingly   by  the   circumstance  that  the Sessions  Court   "had  the  opportunity  of  observing  the demeanour"  of  the  witnesses,  the  High  Court  apparenty thought that  such  an  opportunity  gave  to  the  Sessions Court’s judgment  a  mystical  weight  and  authority,  even though the  learned Sessions  Judge had not, in his judgment or while  recording the evidence, made any special reference to the  demeanour of  the witnesses. The High Court accepted the evidence  of Ram  Sanehi’s children  by  observing  that there was  no material  contradiction ill their evidence and that certain  statements in  the F.I.R. afforded a guarantee that the  two witnesses  were present  when their father was done to  death. We  will now  proceed to  show  how  several significant circumstances  either escaped  the attention  of the High  Court or  were not  given their  due and  rightful importance.      First as  to the  manner in which S.I. Sharma conducted investigation into the case. The offence took place at about 9 a.m.  on June  9  and  though  the  District  Hospital  at Farrukaabad was  just 10  miles away,  the dead body was not received at  the hospital  for nearly  24  hours  after  the incident  had   taken  place.  The  excuse  offered  by  the prosecution that cartman was not willing to take the body at night is  utterly flimsy  because the  Investigating officer could  have  easily  made  some  alternate  arrangement  for despatchin  the   dead  body   for  postmortem   examination expeditiously. With  the dead  body lying  at the  scene  of offence for  nearly 12  hours and  thereafter at  the police station for another 8 or 9 hours, it was easy enough for the witnesses to mould 590

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

their  statements  so  as  to  accord  with  the  nature  of injuries. The lnvestigating Officer did not make any note at all in the General Diary as to which witnesses were examined by him  on the  date of  the occurrence which was obligatory upon him  to do  under paragraph  44 of the U.P. Police Act. The time  when the  investigation was commenced and the time when it  was concluded  are not mentioned in the case diary. The time  when the Investigating officer reached the village and the time when he returned to the police station are also not noted  in the  case diary.  S.I. Sharma  stated  in  his evidence  that   several  important   facts  concerning  the investigation were  being stated by him in his evidence from memory. He  reached the  scene of offence at about 2-30 p.m. but it  was not  until about  6 p.m.  that he  inspected the site. The  dead body  was not  removed  from  the  scene  of offence till  about 9  p.m. and  even that  is open to grave doubt because  the Investigating officer has admitted in his evidence that  he was unable to say as to when the dead body was taken  way from  the  spot  and  whether  it  was  taken directly to  the hospital  or was  detained somewhere on the way. He was unable to say whether it was right or wrong that the dead  body remained in the village till about 4 ’O’clock on the  morning of  the 10th.  Forty or  fifty  persons  had gathered at  the scene  of offence  when  the  Investigating officer arrived  but the  record of  the case  does not show that  the  statement  of  any  of  those  persons  was  ever recorded. In  fact even  the statement  of Kusuma  Devi  was recorded late  at night for which the reason is stated to be that her  elder sister  Pushpa Devi  died of  shock  on  the evening of  the 9th after hearing of her father’s murder. It may be  that Pushpa Devi died on the 9th, but apart from the cause of  her death,  the statement  of Kusuma Devi need not have  been   held  up  so  long.  We  are  doubtful  if  the Investigating officer  at all  knew on  the 9th  that Pushpa Devi had  died. He  has admitted  that his knowledge in that behalf was  derived  from  hearsay  reports.  The  appellant Subhash  had  surrendered  before  the  Additional  District Magistrate, Farrukhabad  on the  afternoon of the 9th itself while the  other appellant  Shyam  Narain  was  arrested  at Fatehgarh at  about 2-40  p.m. The Investigating officer did not even know of these significant developments, though they had taken  place just  a few  miles away  from the  scene of investigation. He  says that  he learnt of the surrender and the arrest  of the  appellants on  the evening  of the 12th. Mangali Prasad  has been  examined by  the prosecution as an eye-witness and  his name  is mentioned in the F.I.R. as one of the four persons who arrived at the scene of offence even before the  appellants  had  run  away.  His  statement  was recorded 11  days later  on June  20.  The  F.I.R.  mentions expressly that the appellants caught hold of the legs of the deceased and started dragging him. The Investigating officer has not  stated in  the Panchnama  of the  scene of  offence whether the ground was soft or hard or sandy which had great relevance on  the allegation  that the  deceased was dragged over a  certain distance. Finally, it is surprising that the Investigating officer  did not  think it worthwhile to pay a visit to  the field  where the  deceased is  alleged to have gone with  his children  for eating  Kharbuzas. Indeed    he stated that  he was  not in  a position to say if there were Kharbuzas at  all in  the field,  when the  occurrence  took place. 591      The High Court has condoned these lapses on the part of the Investigating  officer  with  the  observation  that  he "appears to have been inexperienced and somewhat negligent".

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

The Investigating officer has stated in his evidence that he had put in 7 years of service. It is difficult to understand on what  basis the  High Court  attributed the lapses on his part to  mere inexperience.  We will  presently indicate the significance  of   the  various   lapses  and  loopholes  in investigation but  to say,  as the High Court has done, that the Investigating  Officer was "somewhat negligent" seems to us in the circumstances a grave euphemism.      We  will   now  proceed   to  deal   with  the  various circumstances which,  in our  opinion, render  it unsafe  to accept the prosecution case.      Dr.  S.C.   Pandiya  who   performed  the   post-mortem examination has  described  in  his  evidence  the  injuries received by  Ram Sanehi.  In all  he found 7 injuries on the dead body,  out of which injuries 1, 3 and 7, injuries 2 and 4, and  injuries 5 and 6 are interconnected. Injury No. 1 is described as  a "shot  wound" with  its entry above the left nipple. Injury  No.  3  is  described  as  multiple  rounded abrasions on the left side of the chest. Injury No. 7 is the wound of exit on the right scapular region, corresponding to injury No.  1. rnjury  No. 2 consists of 8 gunshot wounds of entry below  the right nipple while injury No. 4 consists of multiple rounded  abrasions above  the right  nipple. Injury No. 5  is a  gun-shot wound of entry on the back of the left forearm while  injury No.  6 is  the corresponding  wound of exit near the ulnar aspect of the left forearm.      The evidence  of Dr. Pandiya and the description of the injuries given by him in the post-mortem report tend to show that two  different kinds  of  firearms  were  used  by  the assailants of  Ram Sanehi.  Injury No.  1 was  caused  by  a bullet and  that is  clear not  only from the description of the injury  but from  what Dr.  Pandiya has  stated  in  his evidence. He  says: "The  bullet, which  had entered through injury No.  1 went  out straight  after emerging from injury No. 7".  Injuries Nos.  2 and 5 were caused by pellets. This shows that  whereas injury  No. 1 was caused by a firearm in the nature  of a  rifle, injuries  2 and 5 were caused by an ordinary gun.  The medical  evidence thus falsifies the eye- witnesses’ account according to which, the appellant Subhash alone was  armed with  a  double-barrelled  gun,  the  other appellant  Shyam  Narain  being  armed  with  a  lathi.  The objective inference  arising from  the  nature  of  injuries received by  the deceased  has a  significant impact  on the case of  the prosecution,  which has been overlooked by both the Sessions Court and the High Court.      While we  are on  the  medical  evidence  it  would  be appropriate  to  mention  that  there  was  no  tatooing  or charring on  any of the firearm injuries which, according to the doctor,  shows that  the firing was done from a distance of more  than 4  feet. In  the First  Information Report Bal Kishore has  stated that  as soon  as  he,  his  father  and sister, reached the culvert, Subhash "touching the chest" of Ram Sanehi "with the 592 barrel of  his gun"  said that he shall not leave him alive; Shyam Narain  thereupon exhorted  Subhash not  to delay  and fire immediately;  Subhash then  fired three  shots in quick succession, one of which mishred. The trend of the F.I.R. is that Subhash  fired the first two shots at Ram Sanehi from a point blank  range, in which event indisputably, there would have been  tatooing and  charring around  the injuries.  Bal Kishore has  attempted to  offer an explanation that what he meant to  say in  his compaint  was that Subhash trained his gun   "towards" Ram  Sanehi’s chest  and not "on" his chest. This  explanation   is  an   after  thought   and   in   the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

circumstances difficult to accept. Thus in another important respect, the  medical evidence  falsifies the  case  of  the prose cution.      There is  another aspect of the medical evidence which, though, not as important as the two aspects mentioned above, may also be referred to. The case of the prosecution is that Ram Sanehi  had gone  to his Kharbuza field with his son and daughter for  eating Kharobuzsas.There is evidence that they did eat  Kharbuzas and  almost immediately  there after they started back  for home.  Within less  than  5  minutes,  Ram Sanehi met  with his  deat near the culvert. The post-mortem report shows that Ram Sanehi’s stomach was empty which means that the  evidence that he had eaten Kharbuzas just a little time before  his death  is  untrue.  Bal  Kishore  tried  to wriggle out  of this situation by saying that Ram Sanehi had eaten just  a small  slice of  Kharbuza. But even there, Dr. Pandiya has  stated that if the entire slice of Kharbuza was eaten by  Ram Sanehi,  its remains  would be  found  in  the stomach provided  there was  no vomiting  after the gun-shot injuries. Since  Ram  Sanehi  had  not  vomited,  his  large intestines could  not have  been found  to be  empty if  the story of his children was true.      This last  circumstance may at first sight seem trivial but its  importance consists  in the  fact that the visit of Ram Sanehi,  along with  his children, to the Kharbuza field for the  purpose of  eating Kharbuzas is the very genesis of the incident  which happened  on June  9, 1972. Coupled with the circumstance that the Investigating officer did not even pay a  visit to  the Kharbuza  field, leave  alone making  a Panchnama thereof,  the conclusion  is irresistible that the story that  the children had accompanied their father to the Kharbuza field lacks a factual basis.      The other  circumstances which  render the  prosecution case suspect  are these  (1) Ram  Sanehi is  alleged to have been drageed  over 6  or 7  paces by  the appellants but not even an  abrasion was  found on  his back  or stomach  which could be attributed to dragging. (2) Thirty or forty persons are alleged to have collected at the sence of occurrence but Bal Kishore  was not able to mention the name of even one of them and  it is common ground that the Investigating officer did not  record the  statement of  any of  them. (3) Jhabboo Singh, Shyam Lal Brij Bhushan and Mangali Prasad reached the scene of  offence even   before the appellants had fled away but none  from amongst  the first  three was examined by the prosecution. Mangali Prasad was examin 593 ed  as   an  eye-witness   but  he   has  been  concurrently disbelieved by  the Sessions  Court and  the High Court. (4) Though the  motive of the offence is alleged to be that in a complaint filed by Pooran Lal against the appellant Subhash, the deceased  Ram Sanehi  was cited  as a  witness,  Mangali Prasad’s evidence  shows that  immediately after the firing, Bal Kishore told him that Ram Sanehi was murdered because of the disputes  concerning the election to the Pradhanki. What Bal  Kishore  told  Mangali  Prasad  immediately  after  the incident seems  more probable  because, one  Virendrapal had contested  that  election  and  the  appellant  Subhash  had defeated him.  When Bal  Kishore went to lodge his F.I.R. at the police station he was accompanied by Virendrapal, though an attempt  was made  to  show  that  Virendrapal  was  only standing outside  the police station and had met-Bal Kishore accidently. (5)  The story  of Bal  Kishore that  after  the appellant Subhash fired 2 shots he re-loaded his gun but the re-loaded cartridge  misured makes hardly any sense. Subhash was armed  with a  double barrelled  gun and  having fired 2

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7  

fatal shots from a close range at his target, it is unlikely that he  would re-load  the gun  and that  too with only one cartridge. And  if that cartridge misfired, it is impossible to understand  how it  could be found concealed in the folds of Ram Sanehi’s dhoti.      There is  only one  other aspect  of the  matter  which remains to be considered and since the High Court has placed great reliance thereon, it is necessary to deal with it. The F.I.R. which  lodged at  about 12 O’clock at noon on the 9th itself mentions  that after  Ram Sanehi  was  murdered,  the appellant Subhash  told his  companion Shyam  Narain that he himself was going to surrender before a court and that Shyam Narain should make his own arrangement. In fact, Subhash did surrender  in   the  court   of  the   Additional   District Magistrate, Farrukhabad,  at about  4 p.m.  on the 9th. What the High  Court has  over-looked is  that  Subhash  did  not surrender in connection with the murder of Ram Sanehi but he surrendered along  with the  13 or  14 other accused against whom Pooran  Lal had  filed a  complaint. In so far as Shyam Narain is  concerned, the High Court is wrong in saying that he managed  somehow to get himself arrested. The evidence of Constable  Virendra   Singh  shows  that  Shyam  Narain  was arrested because he was crossing the railway lines and if he was not  caught, he  would have  been run  over by  the  two trains coming  from Kanpur  and Farrukhabad. This was hardly any sensible  way of making an "arrangement" for himself, as directed by Subhash. It is therefore not as if the statement attributed to  Subhash in  the  F.I.R.  is  corroborated  by subsequent events  so  as  to  afford  a  guarantee  to  Bal Kishore’s presence at the culvert.      We are  conscious that  the Sessions Court and the High Court have  both held  that  the  appellants  committed  the murder of  Ram Sanehi  but the  weight of  the circumstances which we have discussed above is so preponderating that even the concurrent finding cannot be allowed 594 to stand.  In any  event, it  seems to us impossible to hold that the  prosecution has  established  its  case  beyond  a reasonable doubt.      We therefore  allow this appeal, set aside the order of conviction and  sentence recorded  by the High Court and the Sessions Court  and direct  that the appellants shall be set at liberty. M.R.                                         Appeal allowed. 595