REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 662 OF 2006

SURENDRA PAL & ORS. … APPELLANTS

VERSUS

STATE OF U.P. & ANR. … RESPONDENTS

JUDGMENT

B. SUDERSHAN REDDY, J.

1. This appeal by special leave is directed against the final  

judgment and order dated 2nd December, 2005 passed by  

the  High  Court  of  Judicature  at  Allahabad  in  Criminal  

Appeal No. 4703 of 2004 whereby the Hon’ble High Court  

dismissed  the  appeal  preferred  by  the  appellants   and  

thereby  maintaining  the   conviction   of  the  appellants  

under  Section  302 of  the  Indian  Penal  Code (for  short  

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‘IPC’)   with  modification  of  sentence  of  death   by  

substituting it to imprisonment for life.   The conviction  

and  sentences  awarded  by   the   learned  Additional  

Sessions Judge, Fast Track Court No. 4, Meerut  against  

the appellants for the offences punishable under Sections  

147, 148, 307 read with 149, IPC have been confirmed.  

Hence this appeal.  

2. The main question that arises for our consideration in the  

instant appeal is whether the courts below committed any  

serious error in convicting the appellants for the offence  

punishable under Section 302? Whether the courts below  

committed any error in convicting the appellants for the  

offences punishable under Sections 147, 148, 307 read  

with  Section  149?  Whether  the  findings  concurrently  

recorded  by the  courts  below to  convict  the  appellants  

under  the  said  provisions  are  so perverse  and ex-facie  

unacceptable  and  therefore  require  our  interference  in  

this appeal preferred with leave granted under Article 136  

of the  Constitution of India?

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3. It is fairly well settled and needs no restatement that this  

Court  should  not  embark  upon  a  reappreciation  of  the  

evidence,  when  both  the  Sessions  Court  and  the  High  

Court have agreed in their appreciation of the evidence  

and arrived at concurrent findings of fact.  This Court time  

and again held that it is always necessary to bear in mind  

the limited scope of the proceedings under Article 136 of  

the Constitution of India which cannot be converted into a  

third appeal on facts. Mere errors in appreciation of the  

evidence  are  not  enough  to  attract  this  Court’s  

‘invigilatory jurisdiction’.  It is settled law that this Court  

may interfere in rare and exceptional cases where there is  

some manifest illegality or grave and serious miscarriage  

of justice.

4. We shall  bear  this   settled  legal  position  in  mind  and  

proceed to consider whether the findings of fact reached  

by  the  courts  below  concurrently  on  appreciation  of  

evidence suffer from any error of   law or have resulted in  

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miscarriage  of  justice  requiring  our  interference  in  this  

appeal.  Whether  the  view taken  by  the  High  Court  on  

reappreciation  of  the  evidence  to  agree  with  the  

appreciation  of  evidence  by  the  Sessions  Court  is  so  

perverse resulting in miscarriage of justice.?

5. In all  there were 11 accused sent up for trial before the  

learned  Sessions  Judge,  the  Sessions  Court,  however,  

acquitted  five  accused  and  found  them  not  guilty  of  

charges  framed  against  them.   Accused  Rajneesh  is  

absconding.  Accused Aman Singh did not file any appeal.  

Hence, in this appeal, we are concerned with conviction  

and sentence of only the present appellants i.e. accused  

nos. 1 to 4.  

BACKGROUND FACTS

6.  The  prosecution  case  in  short  is  that  an  incident  

occurred on the intervening night of 24/25th May, 1999 at  

about  12  O’  clock  in  Lalpur  village,  Police  Station  

Bhawanpur, District Meerut.  It is the case of the prosecution  

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that  on  that  intervening  night  the  appellants  along  with  

other  accused  and  two  unknown  persons  armed  with  

country  made  pistols  and  rifle   came  to  the  village  

demanding Ajab Singh (one of the deceased) to enter into a  

compromise  with  regard  to  a  case  lodged  by  Ajab  Singh  

complaining about his daughter’s abduction on 5.11.1997 by  

Rajneesh and Vikram.  The said case was pending in a court.  

Apart from that case, some other cases were also pending  

between  the  parties.  Ajab  Singh  did  not  agree  for  the  

proposal  and enraged by adamant attitude of Ajab Singh,  

the accused all of a sudden started indiscriminate firing from  

their weapons resulting in death of Ajab Singh, Hari Singh @  

Hariya and Geeta.  Raj Pal (PW-3), Veer Singh (PW-2)  and  

Bala  (PW-4)  received  injuries.   The  accused  threatened  

Kripal (PW-1) to kill him but he saved himself by hiding in a  

room of  his  house.   Aman Singh (A-5) threatened   that  

nobody  should  go  to  the  police  station  and  lodge  any  

complaint and if any one dares to do so would also be killed.  

Kripal Singh (PW-1) lodged the report in the early morning  

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at about 5.00 A.M in the Police Station which is at a distance  

of about 4 kms. from the scene of occurrence.  After the  

registration  of  the  first  information  report,  Hukum Singh,  

SHO, recorded the statement of the informant at the police  

station and thereafter reached the place of occurrence.  On  

his  instructions  Sub-Inspector  –  Sripal  Singh  (PW-13)  

prepared the inquest  memos.   Recovery  memos of  blood  

stained and plain earth, empty cartridges and bullets were  

also  prepared.   Site  plan  is  exhibited  as  Ka-17.  The  

statements  of  inquest  witnesses  were  recorded.   The  

statements  of  injured PWs -2,  3 and 4  were  recorded at  

Lokpriya Hospital.  Thereafter the investigation was taken up  

by   Jai  Dev  Arya  (PW-11)  and  upon  completion  of  the  

investigation a charge sheet was filed against the appellants.  

7. The post mortem on the dead bodies of  Ajab Singh,  

Smt. Geeta and Hari Singh was conducted by Dr. K.N. Tiwari  

(PW-8).  He found the following ante-mortem injuries on the  

person of the deceased Ajab Singh:

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1. Gun shot wound of entry 2 cm x 1 cm on the  back of chest Rt. side 7 cm below angle of scapula  and 3 cm Rt. to midline, margins inverted an area  of blackening & tattooing 15 cm x 11 cm around  wound present, direction of wound is towards Lt.  Bullet recovered from Lt. Side neck.

2. Gun shot would of entry Rt. side chest interiorly  1 cm. medial to Rt. nipple 1 cm x 1 cm margins  inverted, an area of blackening & tattooing of 8  cm x 7 cm. present around wound. Direction of  wound is  towards  chest  cavity.  Bullet  recovered  from post chest wall.

3. Gun shot wound of entry 1.5 cm x 1.5 cm on  Rt.  side  neck  1  cm  below  Rt.  ear  lobule  at  6  O'clock  position.  Margins  inverted  an  area  of  blackening & tattooing 5 cm x 4 cm around wound  is  present.  Bullet  recovered  from  substance  of  liver.

He also conducted post-mortem examination on the body of  

Geeta and noted the following ante-mortem injuries:  

1. Gun shot wound of entry 1 cm x 1 cm on outer  aspect  of  Lt.  upper  arm  3  cm  below  top  of  shoulder, margins inverted, an area of blackening  and tattooing 4 cm x 3 cm seen around wound.  Wound is  directed  medially  and continuous  with  inj. No. 2.

2.  Gun  shot  wound  of  exit  1.5  cm x  1  cm on  medial aspect of Lt. shoulder 2 cm below top of  shoulder, margins inverted. Wound is continuous  

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with  inj.  No.  1.  One bullet  recovered from post  abd. wall in relation with inj. No. 4.

3. Gun shot wound of entry 4 cm x 4 cm Lt. side  head  over  upper  half  of  Lt.  ear.  An  area  of  blackening tattooing 6 cm x 6 cm around wound is  present hair singing seen. Wound is cranial cavity  deep. One bullet recovered from cranial cavity.

4. Gun shot wound of entry on ant. Abd. wall 1 cm  x 1 cm, below phisternum and 1 cm Lt. to midline  an area of blackening & tattooing 4 cm x 3 cm  around  wound  present.  Wound  is  abd.  cavity  deep.

He  also  found  the  following  injuries  on  the  body  of  Hari  

Singh:

1. Gun shot wound of entry on back of abdomen 2  cm x 1 cm 27 cm below C 7 just Lt. to midline,  abraded, cavity deep, margins inverted, tattooing  in an area of 8 cm x 6 cm present around wound.  One bullet recovered from ant. abraded wall.

2. Gun shot wound of entry 1.5 cm x 1.5 cm on  Lt.  side forehead 3 cm above & lateral  to outer  border of Lt. eyebrow, margins inverted an area 4  cm  x  4  cm  of  blackening  and  tattooing  seen  around wound. Wound is crania cavity deep. One  bullet recovered from cranial cavity.

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In the opinion of the Doctor the cause of death of  each of  

the deceased was due to haemorrhage and shock as a result  

of  injuries sustained by them.   

Dr. Vinod Kumar (PW-6) had medically examined Smt.  

Bala  on 25.9.1999 and noted the following injuries on her  

person:  

1.  A lacerated wound of  size 3 cm x 1 cm just  above  the  Public  symphysis  fresh  bleeding  present.

2. A lacerated wound of size 2 cm x 1 cm over at  the  outer  aspect  of  the  (r)  Arm  fresh  bleeding  present margins inverted. This is 12 cm above the  elbow joint.

3. A lacerated wound of size 2.5 cm x 1 cm over  medial aspect of (r) arm 10 cm above the elbow  joint.

He  also  examined  Veer  Singh  (PW-2)  and  noted  the  

following injuries on his person:  

1. Pt. G/C V. Poor Pt. In Hypovolumic shock, pains  present all over the abdomen.

2. A fire arm wound of size 4 cm x 2.5 cm present  over (1) back of abdomen with Irregular inverted  margins,  bleeding  from  the  wound  present.  Blackening  and  Tattooing  present  around  the  wound.

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The following  injury on Raj  Pal (PW-3) were noted by him:  

1 An abrasion of size 4 cm x 1 cm present over  the (r) lower chest just above the (r) lowest costal  margin.

8. The  prosecution  in  order  to  establish  its  case  had  

altogether  examined  13  witnesses  amongst  whom  Kripal  

Singh (PW-1), Veer Singh (PW-2), Raj Pal (PW-3) and Smt.  

Bala (PW-4) are the eye witnesses to the occurrence.  PW-1  

is the first informant and rest of them are injured persons.  

The whole prosecution case turns upon the evidence of PWs-

1 to 4. The courts below did not find any reason whatsoever  

to disbelieve their evidence. The courts found that there is  

nothing on record to disbelieve their presence at the scene  

of  offence.   The  courts  have  meticulously  examined  and  

assessed  their  evidence  and  found  the  same  to  be  

acceptable.   On  a  careful  consideration  of  the  impugned  

judgment  of  the  High  Court  we  have  found  that  the  

conclusion to which the High Court reached at against the  

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appellants is well sustained on the evidence on record which  

requires no interference.  

9. However, it will be appropriate for us to consider the  

main  submissions  canvassed  by  Shri  Dinesh  Dwivedi,  

learned senior counsel for the appellants.  He submitted the  

following points for our consideration:

I. There was inordinate delay in lodging the report and  

the FIR itself  came into  existence  after  consultations  

and deliberations. It was prepared in the police station  

itself.  This  itself  makes  the  whole  prosecution  case  

suspicious  and  therefore  it  cannot  be  said  that  the  

prosecution  has  proved  the  case  beyond  reasonable  

doubt.

II. The police did not record the names of the accused in  

the  inquest  report  that  was  prepared  at  the  earliest  

point of time. There is no explanation as to why PW 1,  

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Kirpal  Singh,  did  not  disclose  the  names  of  all  the  

accused at the time of preparation of inquest.

III. That  all  the  eyewitnesses  are  close  relatives  to  the  

deceased and therefore, they are interested witnesses,  

whose testimony cannot be relied on and made the sole  

basis  to  hold  the  petitioners  guilty  of  the  charged  

offences.

IV. The source of light mentioned in the FIR is moonlight  

and as well as electric bulb. The Investigating Officer  

had mentioned the electric bulb at place ‘B’ in the site  

plan.  But  there  was  no  electricity  connection  to  the  

deceased Ajab Singh’s house. The witnesses could not  

have identified the appellants in the dead of the night.

10. The  learned  counsel  for  the  State  supported  the  

judgment and submitted that the concurrent findings of facts  

arrived at by the Courts below are based on appreciation  

and  reappreciation  of  evidence  which  cannot  normally  be  

interfered with by this Court in exercise of  its  jurisdiction  

under  Article  136  of  the  Constitution.  There  are  no  

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exceptional  and extraordinary  circumstances  requiring any  

such interference in the present case.

11. Point I : The incident had taken place in the midnight  

at about 12 O Clock. The report was lodged by Kirpal Singh  

(PW 1) in the early morning at about 5.30 a.m. in the police  

station which is at a distance of about 4 or 5 kilometers from  

the place of occurrence. Be it noted, three persons in the  

family were killed by a group of persons armed with deadly  

weapons. The entire village was terror stricken. One does  

not expect that under those circumstances someone to rush  

to the police station and lodge the first information report.  

PW1 (Kirpal Singh) in his evidence in clear and categorical  

terms stated that at the relevant time, he was present in his  

house situated in Lalpur, the deceased Ajab Singh was none  

other than his nephew, his house is adjacent one to that of  

deceased Ajab Singh’s. He clearly identified the appellants  

who  were  armed  with  deadly  weapons  and  seen  them  

committing the murderous attack on the deceased. He was  

also threatened by the appellants and he saved himself by  

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hiding in a room in his house. In the first information report  

itself it is stated that Ajab Singh’s daughter, Kumari Manju  

was abducted by Rajneesh (absconding) with the help of his  

uncle Vikram; the abducted girl was recovered by the police  

and handed over to deceased Ajab Singh. She was brought  

to  Meerut  for  her  medical  examination  where  she  had  

committed suicide. The origin that led the present incident is  

traceable to abduction of deceased Ajab Singh’s daughter.  

The  appellants  came  to  insist  that  Ajab  Singh  should  

withdraw  the  said  case  and  enter  into  a  compromise  to  

which he refused.

Be  it  noted,  the  first  information  report  was  lodged  

within 5 to 5½ hours immediately after the incident which by  

no  stretch  of  imagination  could  be  characterized  as  the  

delayed one. Not only three persons died on the spot but  

PWs  2,  3  and  4  were  also  seriously  injured.  In  the  

circumstances,  we  are  not  inclined  to  agree  with  the  

submissions made by the learned senior counsel that there  

was  unexplained  delay  in  lodging  the  first  information  

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report.  Yet  another  aspect  of  the  matter:  The  first  

information report was not signed by PW 1 (Kirpal Singh). It  

was  scribed  by  one  Ramveer  on  his  dictation.  The  fact  

remains that the report was received by the Station House  

Officer and the FIR was issued immediately thereafter. It is  

of  no  consequence  whether  the  first  information  report  

contained his signature or not. There is no material available  

on  record  to  arrive  at  any  conclusion  that  the  first  

information  report  lodged  by  PW 1  itself  was  after  some  

deliberations and consultations in the police station. There is  

no  such  case  made  out  by  the  appellants.  In  the  

circumstances,  it  is  not  possible  to  agree  with  the  

submissions made by the learned senior counsel  that  FIR  

was lodged after consultations and deliberations.

The evidence  of  PW 1 is  clear  and categorical  which  

depicts  the  sequence  of  events.  The  Courts  below rightly  

placed reliance  upon his  evidence.  An attempt  was made  

before  us  to  point  out  certain  minor  discrepancies  in  his  

evidence to impeach the testimony but in our opinion, the  

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minor inconsistencies, if any, are not of that nature which  

makes us to disbelieve his evidence. The whole narration of  

the incident is natural, the deceased Ajab Singh was none  

other than the nephew of PW 1, living adjacent to his house,  

his presence at the relevant time is also natural and there is  

nothing to disbelieve that he knew all the appellants herein  

who participated in the attack in which three persons died  

on  the  spot  and  PWs  2,  3  and  4  had  received  serious  

injuries.

12. Point II : It appears from the record that the names of  

the accused and details of weapons possessed by each one  

of  the  accused  who  participated  in  the  assault  are  not  

mentioned in the inquest report. The panchayatnamas (Ext.  

K  25  to  K  27)  dated  25th May,  1999  were  prepared  in  

between 6.30 a.m. to 9.30 a.m. over the dead bodies of the  

three  deceased  individuals.  The  inquest  reports  were  

dispatched  along  with  the  copy  of  the  first  information  

report. PW 1 (Kirpal Singh) who is the first informant and  

eyewitness to the incident is also one of the witnesses to the  

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inquest  reports.  The first  information report  was available  

with the investigating officer at the time of preparation of  

the inquest reports. The mere fact that PW 1 did not repeat  

the names of all the accused so as to be incorporated in the  

inquest  reports,  in  our  considered  opinion,  is  of  no  

consequence. The purpose of preparation of inquest report is  

to ascertain whether a person has died in some suspicious  

circumstances or an unnatural death and as to the apparent  

cause  of  death.  The  inquest  report  need  not  contain  the  

details  as  to  how  the  deceased   were  assaulted  or  who  

assaulted them. The omission of names of the accused and  

the minute details of assault in the inquest report itself is  

not  enough to disbelieve the prosecution case.  It  is  fairly  

well settled and needs no restatement at our hands that the  

purpose  of  holding  an  inquest  is  very  limited,  viz;  to  

ascertain as to whether a person has committed suicide or  

has been killed by any other or by an accident or has died  

under  circumstances  raising  a  reasonable  suspicion  that  

some other person has committed an offence. Section 174  

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of  the  Code of  Criminal  Procedure  does not  mandate the  

investigating officer to mention the names of the assailants  

in the inquest report. There is no other provision in law or  

practice requiring the purpose to mention the names of the  

assailants and weapons possessed by them in the inquest  

report. The omission thereof does not lead to any inference  

to doubt the prosecution case. Such omissions are not fatal  

to the prosecution case. It is settled principle that merely  

because the witnesses on the inquest report who are also  

eyewitnesses  did  not  give  out  the  name  of  the  accused  

persons while describing the cause of death in the inquest  

report does not render the presence of the eyewitnesses on  

the  spot  doubtful  [see  Suresh  Rai  Vs.  State  of  Bihar,  

(2000) 4 SCC 84;  Eqbal Baig Vs. State of A.P. (1986)  

2  SCC  476].  It  is  unnecessary  to  further  dilate  on  this  

particular aspect of the matter. In the circumstances, we are  

not inclined to agree with the submission that PW 1 was not  

an eyewitness to the incident.

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13. Point III: It is true, PW 1 and PWs 2 to 4 and as well as  

the deceased are closely inter related. PW 2 is Veer Singh  

who stated in his evidence that deceased Ajab Singh was his  

maternal  uncle.  It  is  in  his  evidence  that  he  was  on  the  

fateful night sleeping under the neem tree and nearby the  

deceased  Ajab  Singh  and  his  wife  Bala,  grandfather  Hari  

Singh  and  Rajpal  were  also  sleeping.  The  appellants  and  

other  accused  along  with  two  unknown  persons  reached  

there and all of them were armed with country made pistols  

and one of the unknown persons was armed with  a rifle. It  

is in his evidence that he could recognize each one of the  

appellants and other accused in the moonlight and electric  

light. His version is more or less same as that of PW 1 who  

also speaks about the appellants insisting the deceased Ajab  

Singh  to  compromise  the  abduction  case,  deceased  Ajab  

Singh told them that they could talk about it in the morning  

but Aman Singh (A 5, who did not prefer any appeal against  

his  conviction)  insisted for  a compromise then and there.  

Enraged by the same, the appellants started indiscriminate  

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firing resulting in the death of Hari Singh, Ajab Singh and  

Geetha on the spot. He himself was injured along with PWs  

3 and 4.  

PW 3 is one Rajpal who is also an eyewitness to the  

occurrence.  Ajab  Singh  was  his  nephew,  he  also  speaks  

about origin of the case that ultimately led to the attack on  

the deceased and corroborates the version given by PWs 1  

and 2 in all its respects.  

PW 4 is Smt. Bala who is none other than the wife of  

deceased Ajab Singh. She was sleeping on the Chabutra on  

that  fateful  night  along  with  her  daughter  Geetha  and  

husband  Ajab  Singh.  She  speaks  about  the  appellants’  

presence at the scene of offence and their  insisting for  a  

compromise in the abduction case. She specifically speaks  

about  the  appellants’  participation  in  the  crime  and  

indiscriminate firing by the appellants resulting in death of  

her husband Ajab Singh, daughter Geetha and father-in-law  

Hari Singh. It is in her evidence that PW 2 Veer Singh, PW 3  

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Rajpal also received injures along with her at the hands of  

the accused.

There cannot be any iota of doubt that PWs 1, 2, 3 & 4  

are natural witnesses to the occurrence. The mere fact that  

they are related to each other itself is no ground to discard  

their  evidence  unless  something  critical  is  brought  to  our  

notice  that  all  of  them being  interested  witnesses   were  

speaking falsely to implicate the appellants. Who else would  

have been present at the scene of occurrence except PWs 1  

to 4? What is unnatural in the evidence of PWs 1 to 4 to  

disbelieve their evidence? None. It is true that the evidence  

of relatives of the deceased is to be carefully scrutinized and  

appreciated  before  resting  the  conclusions  to  convict  the  

accused in a given case. In the present case, the Sessions  

Court  properly  appreciated  the  evidence  and  meticulously  

analyzed the same and the High Court upon reappreciation  

of evidence concurred with the view taken by the Sessions  

Court. Moreover, the very fact that PWs 2 to 4 were injured  

in  the  incident  establishes  their  presence at  the  scene of  

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offence.  We  do  not  find  any  reason  to  disbelieve  their  

evidence only on the ground that they are interrelated to  

each other and also to the deceased.

14. Point IV : This aspect of the matter has been dealt with  

elaborately  by the Courts  below.  PW 1 stated in the first  

information report itself that he had seen and identified the  

accused  persons  in  the  moonlight  and  “in  the  light  of  

electricity”.  There  is  no  dispute  whatsoever  that  the  

appellants and other accused barring two were all previously  

known to PWs 1 to 4. The occurrence did not take place all  

of a sudden. The accused after reaching the spot insisted for  

a compromise of a previous case, obviously some exchange  

of words took place between the deceased and the accused  

and the parties must have come close to each other. The  

appellants were not strangers to any of the witnesses. The  

evidence of  PWs 1 to 4 is  consistent with what has been  

stated by PW 1 in the very first information report that the  

accused were identified in the moonlight and electric light.  

In the site plan also, the existence of electric bulb at place  

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‘B’  is  shown. In this regard the trial  Court  dealt  with the  

matter very elaborately and observed:

“…And  at  place  ‘B’  the  bulb  is  stated  and  this  house  is  of  PW-1  Kirpal  Singh  and  where  the  position of the bulb is shown the Chabutara of the  occurrence is situated just in front of in after the  way  (rad)  towards  north  side.  Therefore,  to  identify in one light of  this bulb is quite natural  and there is no contradiction in the statement of  any  of  the  witnesses  on  this  point.  All  the  witnesses  have  stated  to  have  identified  the  accused in the electric light and moon light. Also  otherwise,  the  houses  of  accused  persons  are  situated beside the house of victim party, after the  raasta  and  are  of  the  same  village.  Therefore,  under such circumstances,  even in less and dim  light  to  identify  the  accused  persons  is  quite  natural”.

That apart  it is not even suggested by the defence that  

there  was  no  moon  light  whatsoever  on  that  fateful  

night.  For the aforesaid reasons, we find no merit in  

the contention urged by the learned senior counsel for  

the appellants.  The High Court has on reappreciation  

of the evidence concurred with that finding recorded by  

the  learned  Sessions  Judge.  We  are  not  inclined  to  

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interfere with the concurrent finding of fact arrived at  

by the Courts below.

15. No other point is urged.

16. For all the aforesaid reasons, we find no merit in this  

appeal. The appeal is accordingly dismissed.

……………………………………..J. (B. SUDERSHAN REDDY)

……………………………………..J. (SURINDER SINGH NIJJAR)

New Delhi,

September  16, 2010.

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