12 April 1996
Supreme Court


Case number: Appeal Criminal 383 of 1986






DATE OF JUDGMENT:       12/04/1996


CITATION:  JT 1996 (6)    54        1996 SCALE  (3)438



JUDGMENT:                       J U D G M E N T M.K. MUKHERJEE, J.      Surajdeo Yadav,  the appellant herein, and three others were placed  on trial  before the Additional Sessions Judge, Aurangabad to  Answer a  common charge under Section 302 IPC read with  Section 149 IPC. Against the appellant a separate charge under Section 27 Of the Arms Act was also framed. The trial  ended  with  an  order  of  conviction  and  sentence recorded against the appellant under Sections 302 IPC and 27 of be  Arms Act and of acquittal in favour of the others. As the appeal  presented by the appellant before the High Court was  dismissed  he  has  filed  the  instant  appeal,  after obtaining special leave.      According to the prosecution case, on December 31, 1977 at or  about 6.30  P.M. when  Shamsher Singh, (the deceased) was sitting  in the  sehan of  his house in village Jamhore, within the  police station  of Aurangabad and gossiping with Balmiki Sharma  (PW 7), an employee of Magadh Gramin Bank, 5 or 6  persons suddenly  came there  and one of them, who was carrying a  double barrelled  gun, fired  at Shamsher  Singh twice resulting  in his  instantaneous death. Thereafter the miscreants fled  away. After their departure Bhupinder Singh (PW 6),  a cousin  of  Shamsher  Singh,  took  the  body  to Aurangabad Hospital  where the police recorded his statement and registered  a case against unknown persons. In course of the investigation  six persons  including the appellant were arrested and  placed in  test identification parades wherein the appellant  was  identified  by  Bhagwan  Singh  (PW  4), Ramlakhan Kumar  (PW S),  Bhupinder Singh  (PWS 6),  Balmiki Sharma (PW  7), Hari  Singh (FW  8) and Others as the person who fired  at the  deceased. On  completion of investigation police submitted  charge sheet against all the six arrested. However, before  commitment of  the case  to  the  Court  of Session two of them died.      The  appellant   pleaded  not  guilty  tc  the  charges levelled against  him and contended that he had been falsely



implicated on  mere suspicion.  He further contended that he was known  to the  witnesses who  identified him  as he  had studied in  v school of Jamhore and, therefore, if really he was one of the miscreants the eye-witnesses would have named him.      To prove  its case  the  prosecution  relied  upon  the evidence of  Bhagwan Singh  (PW 4), Ram Lakhan Kumar (PW 5), Bhupinder Singh (PW 6), Balmiki Sharma (PW 7) and Hari Singh (PW 8),  all of whom gave ocular version of the incident and identified the  appellant as  the person  who was carrying a double barrelled  gun and  fired at Shamsher Singh resulting in   his   death.   To   corroborate   their   evidence   of identification in  Court the  prosecution examined Sri Vijay Bahadur Singh  (PW 3),  the Magistrate who had held the test identification parade.  The  appellant  also,  in  his  turn examined three witnesses in Support of his plea.      From the  judgment of  the trial  Court we find that it has recorded  a categorical finding that the defence did not challenge the  prosecution case,  as delineate  by the above eye witnesses,  so far  as it  sought to prove the place and the manner  in which  Shamsher Singh  met with his death. In answering the  moot question  as to whether the four persons arraigned before  it were  responsible for  the above murder the trial  Court observed  that  there  was  practically  no evidence to connect three of them, namely, Bindeshwar Yadav, Jagdish Yadav,  Kameshwar Dusad  with the  crime. As regards the appellant  the trial Court held, for reasons detailed in the judgment,  that although  all the five eye witnesses had identified the  appellant as  the person  who committed  the murder of Shamsher Singh and also identified him in the test identification parade,  none of  them, except Balmiki Sharma (PS 7),  could be  safely relied  upon.  In  negativing  the contention of  the appellant  that he  was known  to he  eye witnesses from  before as  he had studied in a sch 31 in the village in  question, the trial Court held that the evidence given in  support thereof was unworthy of credit and further held that  even if  the  evidence  adduced  by  the  defence witness in  this regard was accepted still then it could not be said  that PW 7 knew him from before for he (PW 7) hailed from the  district of  Gaya and  came to the village Jamhore only a  few months  before the  incident. Besides, the trial Court observed  that it  was not even suggested to PW 7 that he was  known to  the appellant  from before. With the above findings the trial Judge passed the impugned order.      While concurring with the finding of the trial Court as regards the  credibility of  PW 7,  the High Court, however, criticized it  (the  trial  Court)  for  not  accepting  the evidence of  the other  eye witnesses  as, according  to the high Court, they were natural and probable witnesses and the grounds put  forth by  the trial Court for disbelieving them were not sound and reasonable.      Notwithstanding the  concurrent finding  of the learned Courts below  that the  appellant is  guilty of  the charges levelled against  him we  hate, for  ourselves, perused  the relevant evidence  to ascertain  whether the findings can be sustained or  not as a grievance was raised on behalf of the appellant before  us -  which we  found to be a genuine one- that the  High Court,  did not  at all advert to the defence case, much  less, discuss  the evidence  adduced in  support thereof.      Coming first  to the evidence of Balmiki Sharma (PW 7), we get  that only  few months  before the incident he joined the Jamhore  branch of  Magadh Gramin  Bank, the  office  of which was  located in  the house of the deceased. He used to reside in  the  same  building  as  also  the  deceased.  In



detailing the  incident he  testified that in the evening of December 31,  1977 when he was sitting in the sehan in front of the  house of  Shamsher Singh and was talking to him, 6/7 miscreants came  there According  to  PW  7  the  deceased’s cousin Bhupinder  Singh (PW  6) was also sitting there while his munim  Ram Lakhan  Kumar (PW  5)  and  two  others  were sitting in  the verandah  of the  house. He next stated that one of the miscreants, who was wearing trousers and a jacket and was  armed with  a double barrelled gun, fired two shots at Shamsher Singh as a result of which he fell down dead. He claimed to  have recognized  the miscreants  in the electric light which  was  then  burning  there.  He  identified  the appellant as  the person who was wearing jacket and trousers and had  fired at  Shamsher Singh  with the gun which he was carrying. He  further stated  that he  had identified him in the  test  identification  parade  held  earlier.  In  cross examination it was elicited from him that the person whom he had seen  wearing jacket and trousers was of slightly darker complexion; and,  he volunteered,  that the appellant was of such complexion.  The only  suggestions that were put to him in cross examination which were denied by him - were that he had  wrongly   identified  the   appellant  because  of  the influence  deceased  s  family  and  that  he  was  deposing falsely.  Keeping  in  view  his  evidence,  which  remained unshaken in  cross examination  and the  fact that  being  a resident of  the building,  in the  precincts of  which  the incident took  place, he  was a natural and probable witness we m-e  of the  opinion that  both the  learned Courts below were fully justified in relying upon the same.      As regards  the  evidence  adduced  on  behalf  of  the appellant in  his defence  we  find  that  the  trial  Court discussed the same threadbare to conclude that it was wholly unreliable. As  already stated  the principal  reasons which weighed with  the trial  Court for  drawing such  conclusion were that it was not even suggested to PW 7 that he knew the appellant from before, that, admittedly, PW 7 was a resident of District  Gaya and  not of Aurangabad and that he came to Jamhore only  in the year 1977. In dealing with the evidence of DW  2 who stated that the appellant had read in a primary school of the village the trial Court observed that it could not  be  accepted,  firstly  because  admittedly  he  was  a professional witness, secondly because he had no occasion to read or  teach in  that school,  thirdly because  he was not competent to  prove the  entry in  the school  record, which indicated that  one Surajdeo  Yadav was  a  student  of  the school, and  lastly because  while it  was suggested to PW 4 that Surajadeo  Yadav read in a primary school, the entry in question related  to the  middle school, and not the primary school. Finally,  the trial  Court observed  that even if it was accepted that Surajdeo Yadav (the appellant) had read at Jamhore middle  school there was nothing to show that any of the  witnesees   who   have   participated   in   the   test identification parade  had ever read in the school with him. Since each  of the  grounds canvassed by the trial Court for discarding the  evidence of the defence witnesses are cogent and convincing  we find  no reason  whatsoever to accept the defence contention.      That brings  us  to  the  evidence  of  the  other  eye witnesses which  was rejected by the trial Court. On perusal of the  reasons put  forward by  the trial  Court  for  such rejection we  are in  complete agreement with the High Court that none  of them  is sustainable.  part from the fact that the trial  Court itself  recorded a  finding - which we have mentioned earlier  - that their evidence as to the manner in which the  incident took  place  remained  unchallenged  and



uncontrovered, the clinching evidence of PW 7 clearly proves that at  least Bhupinder  Singh (PW  6) and Ram Lathan Kumar (PW 5)  were sitting with him when the firing took place. In such  circumstances  the  trial  Court  ought  not  to  have rejected their  evidence, more  so  when  the  rejection  is primarily on  the basis  that PW  S being  the munim  of the deceased was not an independent witness and PW 6, who lodged the FIR, could not say the colour of the pant (trousers) the appellant was  wearing and  that he  was a  relation of  the deceased. Be  that a  it may, this aspect of the matter need not detain  us as we are in complete agreement with both the learned Courts below that the evidence of Balmiki Sharma (PW 7), who  was a  natural, probable and disinterested witness, clearly establishes the guilt of the appellant.      The appeal is, therefore, dismissed. The appellant, who is on  bail, will  now surrender  to his bail bonds to serve out the remainder of the sentence.