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PETITIONER: SURAJPAL SINGH AND OTHERS

       Vs.

RESPONDENT: THE STATE

DATE OF JUDGMENT: 20/12/1951

BENCH: FAZAL ALI, SAIYID BENCH: FAZAL ALI, SAIYID BOSE, VIVIAN

CITATION:  1952 AIR   52            1952 SCR  193  CITATOR INFO :  R          1953 SC 459  (10)  R          1954 SC 645  (2)  R          1955 SC 585  (4)  R          1955 SC 807  (5)  F          1956 SC 217  (2,34)  R          1956 SC 425  (5)  R          1956 SC 643  (39)  R          1957 SC 216  (12)  R          1957 SC 589  (16)  RF         1961 SC 715  (7)  RF         1962 SC 439  (8)  RF         1963 SC 200  (17)  F          1972 SC 116  (22)  R          1973 SC2622  (7)  F          1974 SC 606  (6)

ACT:     Criminal Procedure Code (Act V of 1898), s.  417--Appeal against acquittal--Interference--Guiding principle.

HEADNOTE:     It is well settled that in an appeal under s. 417 of the Criminal  Procedure Code, the High Court has full  power  to review  the evidence upon which the order of  acquittal  was founded. But it is equally well settled that the presumption of  innocence  of the accused is further reinforced  by  his acquittal  by the trial Court and the findings of the  trial Court  which had the advantage of seeing the  witnesses  and hearing  their evidence can be reversed only for  very  sub- stantial and compelling reasons. 194

JUDGMENT:     CRIMINAL  APPELLATE  JURISDICTION:  Criminal Appeal  No. 16  of 1950.  Appeal by special leave from the judgment  and order  dated 8th May, 1947, of the High Court of  Judicature at Allahabad (Sankar Saran and Akbar Hussain JJ.) in  Crimi- nal Appeal No. 80 of 1946.     S.P. Sinha (G.C. Mathur, with him), for the appellant. K.B. Asthana, for the respondent.

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   1951. December 20.  The Judgment of the Court was deliv- ered by FAZL  ALl  J.--This is an appeal against a judgment  of  the High Court of Judicature at Allahabad reversing the decision of  the Sessions Judge of Aligarh in a criminal  case.   The appellants were tried by the Sessions Judge on charges under section 302 read with section 149, section 148, sections 325 and 326 read with section 149, and section 201 of the Indian Penal  Code,  but were acquitted.  On appeal  by  the  State Government,  the  High Court reversed the  Sessions  Judge’s decision, and convicted the appellants and sentenced them to transportation for life under section 302 read with  section 149, to five years’ rigorous imprisonment under sections 325 and  326 read with section 149, and to two  years’  rigorous imprisonment under section 147 of the Indian Penal Code, all the sentences being made to run concurrently. The appellants thereafter  applied to the Privy Council for special  leave, which was granted on the 28th October, 1947.     The  facts which were put before the court on behalf  of the prosecution may be briefly stated as follows. There is a plot No. 518 in Nagaria Patti Chaharum, village Shahgarh  in the district of Aligarh which is about 30 bighas in area and is known as the "teesa" field. This plot was the "sir"  land of several landlords including Mst. Bhagwati Kuer and  Ratan Singh and had been let out  to  certain tenants.   In  1944, Mst. Bhagwati Kuer, Ratan Singh and their co-sharers filed a suit for the ejectment of the tenants, and the 195 suit was decreed. On the 7th June, 1945, possession over the plot was delivered by the Amin to Surajpal Singh, the  first appellant,  who was the mukhtar-i-Am of Mst. Bhagwati  Kuer. It  was contended on behalf of Surajpal Singh that  he  took possession  on  behalf of all the  co-sharers,  but  certain statements  made by Ratan Singh in his evidence do not  sup- port this contention.  However that may be, it appears  that on  the 17th June, 1945, Ratan Singh reported to the  police that  he  had  sent his labourers to  irrigate  the  "teesa" field, and while they were irrigating it Surajpal Singh  and certain other persons came and tried to stop the  irrigation and damaged the ploughs of Ratan Singh. On the 18th June, at about 7 A.M., the occurrence which is the subject-matter  of the present trial took place. The prosecution version of the occurrence  was  that  while Ratan  Singh’s  labourers  were working  in  the field under the supervision of  one  Behari Singh,  the  appellants with many other persons  came  armed with guns, spears and lathis, and some of the members of the appellants’ party entered the field, cut off the nosestrings of the bullocks and abused and assaulted the labourers, most of  whom  ran away. Thereupon, Deva Sukh, who was  there  to supply water to the labourers, protested and was beaten with lathis.   At that point of time, Behari Singh and 10  to  15 persons  came  and  fight took place  between  the  parties. During  the  fight,  one of the  accused  persons,  Rajendra Singh,  a  young lad, fired his gun twice in  the  air,  and thereafter  Surajpal Singh took the gun from him  and  fired two  shots hitting Nawab Mewati, who  died  instantaneously, and  Behari  Singh, who died later in the day.  Three  other persons,  Zorawar, Rajpal and Lakhan also received  gun-shot injuries.   Sometime  later, Surajpal Singh along  with  the other three appellants came to the spot and removed the dead body  of Nawab in a cart.  The body was thrown into a  river and  was recovered on the 20th June, 1945. After  investiga- tion  25 persons including the appellants were sent  up  for trial.     After hearing the evidence in the case, the  Ses- sions Judge delivered judgment on the 20th February, 1946.

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196 He  held  that the "teesa" field was in  the  possession  of Surajpal Singh, that Behari Singh and Ratan Singh’s men were aggressors  and  wished to take forcible possession  of  the field, that when resisted they had attacked the  appellants’ party,  that  the person who fired the gun had  done  so  in self-defence and not with a view to killing Behari Singh and Nawab Mewati, and that the evidence adduced by the  prosecu- tion was so unsatisfactory that it was unsafe to convict the accused upon it. As to the charge of concealing evidence  of the  offence  of murder by the removal of the dead  body  of Nawab,  the  Sessions Judge expressed the  opinion  that  in order  to convict a person on that charge it must be  proved that  the  offence,  the evidence of which  the  accused  is alleged  to have caused to disappear had actually been  com- mitted,  but since in the present case the charge of  murder was not proved the accused could not be convicted for having caused  disappearance  of evidence connected  with  it.  The Judge  also  held  that the evidence  being  unreliable  the charge  under section 201 of the Indian Penal Code  had  not been established beyond reasonable doubt.     The  High Court delivered its judgment on the  8th  May, 1947, allowing the appeal of the State Government.   Shortly stated, the conclusion arrived at by the High Court was that Ratan Singh had as much right to the possession of the field as  Bhagwati  Kuer, that both parties were  trying  to  take exclusive  possession of the field, that both  parties  were prepared  for  all contingencies to  vindicate  and  enforce their  rights,  and hence the question  of   possession  was wholly  immaterial and no right of private defence could  be successfully pleaded by the appellants.     A  perusal  of the two judgments before  us  shows  that while the Sessions Judge took great pains to discuss all the important  aspects of the case and to record his opinion  on every  material point, the learned Judges of the High  Court have  reversed  his  decision without  displacing  the  very substantial  reasons given by him in support of his  conclu- sion.   The difference in the treatment of the case  by  the two courts below 197 is particularly noticeable in the manner in which they  have dealt with the prosecution evidence.  We find that while the Sessions  Judge  took up the evidence of  each  witness  and recorded  his finding with regard to his  credibility  after discussing  the minutest details of the evidence,  all  that the  learned Judges of the High Court have to say about  the prosecution evidence as a whole is as follows :-     "In  Prag Dat’s case their Lordships observed: usual  in cases  of  this kind the police have found it  difficult  to secure independent testimony of what did take place.   Those of  the  villagers  who were present and  looking  on  would probably by sympathy and bias be so attached to one or other of  the disputing parties that it would be hopeless  to  get disinterested and reliable evidence from them.’     This  difficulty the police find in most riot cases  and this  case is not free from it.  But as in Prag Dat’s  case, in this case there are four witnesses, viz., Deo Sukh,  Rori Singh,  Ram Singh, and Ratan Singh, who could  be  characte- rised as independent witnesses and they support the case for the prosecution, in the main. In our judgment their testimo- ny  is  on the whole worthy of credence  and  sufficient  to justify the conviction of the respondents."     In view of the summary treatment of the evidence by  the High Court, we had to read the evidence adduced in the  case with great care, and what we find is that the four  witness-

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es, whose evidence has been accepted by the High Court,  are just  the  persons against whom very serious  criticism  was offered  by the Sessions Judge.  Of these  witnesses,  Ratan Singh not being an eye-witness may be ruled out.  As to  the remaining  witnesses, we are on the whole inclined to  agree with the view expressed by the Sessions Judge. According  to the  Sessions  Judge,  the manner in  which  Deva  Sukh  was brought into the picture and the circumstances attendant  on his  evidence,  furnish strong reasons.  for  rejecting  the prosecution  version.  What has been held is that the  whole case of the prosecution 26 198 that  Deva Sukh had received injuries in the course  of  the alleged occurrence was false and his injuries "were made  up so as to create evidence of private defence" to be  utilized by  the  prosecution  to meet the charge  of  having  caused injuries  to the members of the appellants’ party.   It  has been  established that at least four persons on the side  of the accused had received injuries.  Mahindarpal had received no less than 16 injuries, and his condition was serious  for some  time.  Karan Singh had 12 injuries, one of  which  was grievous.  Hari  Singh had received 7 injuries  including  a grievous  injury,  and  Nikka Singh also  was  injured,  his injury having been noticed by the investigating  sub-inspec- tor.     In the prosecution evidence, it was stated that many  of the  accused  persons were armed with lathis  and  had  used them, and it would be strange if it was not proved that  any of  the persons on their side had any injuries  attributable to  lathis.  It has been established that the  four  injured persons  of Ratan Singh’s party, viz., Rajpal Singh,  Lakhan Singh,  Behari  Singh and Zorawar Singh, had  only  gun-shot wounds.  A serious question which arises in this case is  at what  stage  the gun was used, and whether it  was  used  in self-defence after the members of the appellants’ party were assaulted  with lathis or it was used before they  were  as- saulted.     The  prosecution witnesses had to admit that at first  a gun  was fired twice in the air and then the  actual  firing took place.  This version of the firing lends support to the defence  story that the gun was fired in  self-defence  when Ratan  Singh’s men attacked members of the accused’s  party. The  Sessions Judge has expressed the view that in order  to meet  the defence case the prosecution introduced the  story of Deva Sukh having been assaulted with a lathi in the first instance so as to make the appellants’ party the aggressors, it being the prosecution case that Behari Singh and his  men had used lathis in order to defend themselves.  In order  to resolve the conflict in the cases of the parties and to  get at the true picture, the 199 Sessions  Judge went very minutely into the question  as  to whether  there  was  trustworthy evidence  about  Deva  Sukh having  received  any injury at all in the  occurrence.   It seems  to  us that there is a formidable  array  of  circum- stances to support the conclusion ultimately reached by  the Sessions  Judge.  It appears that in the  first  information report there is no reference to Deva Sukh or to the injuries said  to have been received by him. The Sessions  Judge  has pointed  out that there was a considerable interval of  time between the occurrence and the lodging of the first informa- tion  report, and therefore it is surprising that  the  most important  incident of the occurrence and the name  of   the most important witness was omitted in the report. Again,  no

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reference  was made to Deva Sukh or to his injuries  in  the dying declaration of Behari Singh which was recorded by  one Dr.  Shankar  Deo, and also in that of  Lakhan  Singh.   The Sessions Judge has further pointed out that the  prosecution witnesses,  Chokha,  Prempal, Cheta and Gangola  Singh,  who were examined by the investigating officer on the 18th June, did  not  also refer to Deva Sukh.  The  investigating  sub- inspector was informed of the injuries on Deva Sukh and  his presence at the time of the occurrence for the first time on the  19th  June, 1945, and Deva Sukh’s explanation  for  not appearing before him at the earliest opportunity was that he was  frightened and had concealed himself in his  house  for about two days and had directed his relations not to  inform the  police  of his presence.  He also stated  that  on  his arrival in his house after the occurrence he did not  inform his  relations of what had happened.  Some of these  matters might  have  been overlooked if there  had  been  convincing evidence about his having actually received injuries, but we are satisfied that such evidence as is before us is extreme- ly  unsatisfactory  and suspicious and  we  entertain  grave doubts as to whether Deva Sukh received any injuries at all.     Dr. Shanker Deo, who examined Deva Sukh,  is a   retired Sub-Assistant  Surgeon  practising  in Kauiraganj, which  is not far from village Shahgarh. 200 He admits that he had known Ratan Singh since his childhood, and when he was a child he used to be taught at the house of Ratan  Singh by a teacher employed by Ratan  Singh’s  uncle. He has stated that Deva Sukh had two bruises across the back of  the  middle  of the left forearm, and one  of  them  was grievous since the left ulna was fractured. He further  says that at the time of examination he did charge fees from Deva Sukh, that he was brought to him three days after the  other injured persons, that when the latter group of persons  came to him none of them told him that there was one more injured person to be examined, and that Deva Sukh was brought to him by  Ratan Singh’s servant.  There  are  unsatisfactory  fea- tures  in  the  evidence of this doctor  relating  to  other matters which need not be referred to, but what is  somewhat remarkable is that though there is a District Board Hospital at Jalali about four miles from Kauirganj, Deva Sukh did not obtain  an injury certificate from the doctor in  charge  of that hospital. Deva Sukh says that he did go to that  hospi- tal  to have his injuries attended to, but there is no  evi- dence to corroborate this.  These facts as well as a  number of  other facts relied upon by the Sessions Judge do  go  to support his theory, and once it is held that the prosecution has to rely on fabricated evidence, it throws doubts on  the entire case.     From the record, it appears that Surajpal Singh was  the person who had been taking an active interest in the  eject- ment suit, and he was admittedly spending money. Ratan Singh says  that he had also paid money to Surajpal Singh  towards the  expenditure,  but this is not probable because  he  and Surajpal had been on bad terms.  It is admitted that  Suraj- pal  is the person to whom the Amin gave possession  of  the land,  but in spite of this fact, Ratan Singh’s men  started operations  on the land ignoring Bhagwati Kuer, which  Ratan Singh  had no right to do, even assuming that the  land  was joint  property.  If Behari Singh and the other men sent  by Ratan Singh were trying to take exclusive possession of  the land and had started 201 operations  thereon, Surajpal Singh had every right to  pro- test,  and if his men were beaten first, of which there  are

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strong  indications in the case, he was entitled ’ to  repel the  attack  in exercise of the right  of  private  defence. That  Ratan  Singh  had  made  ample  preparations   through Behari  Singh  is  quite  clear. Admittedly,  there  were  a number of persons armed with lathis present at the scene  on his  behalf  including outsiders like Nawab Mewati,  who  is said to have been a well-known fighter, Zorawar and others.     As regards the remaining two witnesses, to whom the High Court has made reference, viz., Rori Singh and Pransukh,  it seems to us that the High Court has overlooked the  comments made  by  the Sessions Judge upon their  evidence,  some  of which  are of considerable force.  What has impressed us  is that  they were not  independent  witnesses  and  were   not mentioned  in the first information report as  witnesses  to the occurrence, and they were examined by the  sub-inspector as  late as the 20th and 21st June, 1945. After reading  the two  judgments,  we  see no reason why the  opinion  of  the Sessions Judge regarding these witnesses should not  receive the weight which should normally be attached to that of  the trial court.     It  is well-established that in an appeal under  section 417 of the Criminal Procedure Code, the High Court has  full power to review the evidence upon which the order of acquit- tal  was  founded, but it is equally well-settled  that  the presumption  of  innocence of the accused is  further  rein- forced by his acquittal by the trial court, and the findings of  the  trial court which had the advantage of  seeing  the witnesses  and hearing their evidence can be  reversed  only for very substantial and compelling reasons.     On the whole, we are inclined to hold that the  Sessions Judge had taken a reasonable view of the facts of the  case, and in our opinion there were no good reasons for  reversing that view.  The assessors with whose aid the trial was held, were  unanimously of the opinion that the accused  were  not guilty, and 202 though  25  persons were placed on trial on  identical  evi- dence, the State Government preferred an appeal only against 5 of them on the sole ground that the acquittal was  against the weight of evidence on the record.     In  the result, we allow the appeal, set aside the  con- viction  and sentences of the appellants and acquit them  of all the charges.                                        Appeal allowed. Agent for the appellant: P.K. Chatterjee. Agent for the respondent: I. N. Shroff for P.K. Bose.