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PETITIONER: VIKRAM SINGH

       Vs.

RESPONDENT: RAJ SINGH & ORS.

DATE OF JUDGMENT:       21/11/1997

BENCH: G.T. NANAVATI, S.P. KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:                THE 21ST DAY OF NOVEMBER, 1997 Present:               Hon’ble Mr. Justice G.T.Nanavati               Hon’ble Mr. Justice S.P.Kurdukar O.P.Rana, Sr.Adv.,  Girish Chandra,  Adv. wit  him  for  the appellant. Vidya  Dhar   Gaur,  Adv.   (A.C.)  B.S.Mor,   Kusum  Singh, M.S.Dahiya, Advs. for Respondent No.1 J.P.Goyal, Sr.Adv.,  A.K.Gupta, Rajesh,  Advs. with  him for the Respondent No.3 A.S.Pundir and T.N.Sing, Advs. for the State.                       J U D G M E N T      The following Judgment of the Court was delivered: S.P. KURDUKAR, J.      Seven persons  were done  to  death  during  the  night intervening between  19th and  20th February,  1981  in  the house of Bramha Pal Singh (P.W.4) and also caused assault on Km. Mukesh  (P.W.3). These  deceased persons belonged to the family    of     Bramha    Pal     Singh    (P.W.4).     The appellant/complainant -  Vikram Singh  (P.W.1), who  is  the brother of Bramha Pal Singh (P.W.4) lodged the FIR at Nowana Police Station on 20.2.1981 at about 8.30 a.m. against Samai Pal Singh (A-1), Raj Singh (A-2). Rampal Singh (A-3) and two unicentified persons  in respect  of this  crime. These four accuses persons  were tried  for offences  punishable  under Section 302/34  and 307/34  IPC. The  trial court found them guilty on  both counts  and awarded death sentence to A-1 to A-4 for  an offence  punishable under Section 302/34 IPC and for an  offence causing  injuries to Km. Mukesh (P.W.3) each of the  accuse was sentenced to suffer RI for ten years. The trial court  then made  a Reference  to the High Court under Section 366  Cr. P.C. The condemned prisoners also filed the appeals to  the High Court against the judgment and order of the trial  court challenging  their convector and sentences. The Reference  and the  appeal were  heard together  and the High Court  by its  judgment and  order dated  May 26,  1983 accepted the  Reference in  respect of Samai Pal Singh (A-1) and dismissed  his criminal appeal but however, rejected the Reference in  respect of Raj Singh (A-2), Rampal Singh (A-3) and Lal  Singh (A-4).  The High  Court allowed  the criminal

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appeals of  A-2, A-3  and A-4  and acquitted them of all the charges. We  are told  that the  appeal filed  by Samai  Pal Singh (A-1)  to this  Court was dismissed filed by Samai Pal Sigh (A-1)  to this Court was dismissed and consequently the death  sentence   awarded   to   him   was   executed.   The appellant/complainant  has   filed  these   criminal  appeal against Raj  Singh (A-2),  Rampal Singh  (A-3) and Lal Singh (A-4) who  are respondent  Nos. 1 to 3 in these appeals. The respondent No. 4 is the State of U.P. During the pendency of these appeal Rampal Singh (A-3) was reporters to be dead the appeal abated  against him.  The net  result, therefore,  is that these appeal survive only against respondent Nos. 1 and 3 who were accused Nos.2 and 4 before the trial court. (2)  Bramha Pal Singh (P.W.4) had two wives. Samai Pal Singh (A-1) was  born from  his first wife and from second wife he got four sons and three daughters. Samai Pal Singh (A-1) was insisting  that  he  should  be  given  1/2  shared  in  the property, however,  Bramha Pal Singh (P.W.4) gave him as his share 7-1/2  bighas of  agriculture land  and 1/3rd share in his residential  house. Samai Pal Singh (A-1) was not at all satisfied  with   this  partition   and  according   to  the prosecution there used to be quarrels between him and Bramha Pal Singh (P.W.4) and his other family members. (3)  Bramha Pal  Singh (P.W.4)  and his brother Vikram Singh (P.W.1) at  the time of occurrence had grown sugarcane crook in their  agriculture  lands  and  on  19.2.1981  these  two brothers had  decided to  sell the  same to the Mawana sugar mill. Accordingly,  they loaded  the  sugarcane    in  their Buggies and  decided to  start early  in the  morning on the next day.  Accordingly Vikram  Singh (P.W.1)  and Kirat  Pal Singh came to the house of Bramha Pal Singh (P.W.4) at about 3.30 or  4.00 a.m.  when they  heard the shrikes coming from inside the house of Bramha Pal Singh (P.W.4). They raised an alarm which attracted Bhanwar Singh. Babu Ram (P.W.2) and Om Pal. All  these persons  came near  the house  of Bramha Pal Singh (P.W.4)  and raised the alarm. The miscreants who were inside the house came out and started running away when they came to be identified. Samai Pal Singh (A-1) had a Table and a torch,  Raj Singh  (A-2) had a Pharsa. Ram Pal Singh (A-3) has a  Balkati. The 4th accused could not be identified. All the miscreants  then fled  away. Vikram  Singh, Babu Ram and others who had gathered there then entered into the house of Bramha Pal  Singh (P.W.4)  and noticed that five children of Bramha Pal  Singh (P.W.4) were done to death. Smt. Sukhbiri, the wife  of Bramha  Pal Singh and Smt. Seeso, the sister of Eramha Pal  Singh  (P.W.4)  were  also  killed.  Km.  Mukesh (P.W.3). the  daughter of  Bramha Pal  Singh (P.W.4) who had sustained incised injuries was found under the cot. She told the details  about the  incident. Vikram Singh (P.W.1) after seeing the  ghastly murders  of  seven  persons  lodged  the complaint at  Nowana Police  Station on  20.2.1981 at  about 8.30 against  Samai Pal  Singh (A-1),  Raj Singh  (A-2)  and Rampal Singh (A-3) but however, could not name the other two accused persons  who had fled away. After recording the FIR. SI Suraj   Singh (P.W.7) reached the place of occurrence and commenced   the    investigation.   After   completing   the investigation a  charge-sheet came  to be  filed against the fourth accused  persons for  the offences  punishable  under Section 302/34  and 307/34 IPC for committing the murders of seven persons and attempt to commit the murder of Km. Mukesh (P.W.3). (4)  The accused  persons denied  the  allegations  levelled against  them  and  pleaded  that  they  have  been  falsely implicated in the present crime and they be acquitted. (5)  At the trial the prosecution examined as many as twelve

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witnesses of  whom Km.  Mukesh (P.W.3)  was an  eye  witness whereas Vikram  Singh  (P.W.1)  and  Babu  Ram  (P.W.2)  had identified the assailants when they came out of the house of Bramha Pal  Singh (P.W.4) and were running away. In addition to the  above evidence  the prosecution also placed reliance on the  recovery of  certain incriminating  articles at  the instance of the accused persons. (6)  On the  conclusion of  the  trial  the  Sessions  court accepted the  evidence of  Km. Mukesh  (P.W.3)  as  credible despite the  fact she was a minor. She had identified A-1 to A-3 as  assailants and  her evidence stood corroborated from the evidence  of Vikram  Singh (P.W.1)  and Babu Ram (P.W.2) who  had  identified  A-1  to  A-4.  Consistent  with  these findings  the  trial  court  found  A-1  to  A-4  guilty  of committing the murders of seven persons and causing injuries to Km.  Mukesh (P.W.3)  and accordingly convicted them under Sections  302/34   and  307/34   IPC  and   awarded  capital punishment to  each one  of them on first count and 10 years RI on  second count  and made  a Reference under Section 336 Cr.P.C. to the High Court. (7)  The High  Court heard  the Reference  as  well  as  the criminal appeals  filed by A-1 to A-4 and on reconsideration of the  evidence of Km. Mukesh (P.W.3). Vikram Singh (P.W.1) and Babu Ram (P.W.2) found it trustworthy as regards A-1 and consequently accepted the Reference and dismissed the appeal filed by  him. As regards A-2 to A-4 the High Court, however did not  accept the  evidence of  these three  witnesses  as conclusive on the question of identification and resultantly acquitted them  of all  charges. The  criminal appeal  filed these  accused   were  allowed  and  Reference  came  to  be rejected. The  present appeals  by Social Leave are filed by the appellant (complainant). (8)  We heard  learned counsel  for  the  parties  at  great length and perused the judgments of the courts below as well as the  oral and  documentary evidence  on  record.  In  our considered  view  the  impugner  judgment  is  unsustainable against A-2  and A-4.  We may  first set out the reasons for acquittal rendered by the High Court. (9)  The first  given by the High Court is that the evidence of Vikram  Singh (P.W.1) is inconsistent with that of Bramha Pal Singh  (P.W.4) when  he testified  that they  were to go together to  sell their  sugarcane to the sugar mill. Bramha Pal Singh  (P.W 4)  contradicted this  fact. The  High Court observed:      "If it  had been agreed between him      and Vikram  Singh that  they  would      take their  Buggies to  the mill he      would not  have taken  his Buggi of      sugarcane to  the crusher,  because      there is  better payment  made  for      the sugarcane  at mills and then if      it was  agreed between Bramha Singh      and his  brother that they would go      together   with   their   sugarcane      therefore  before   going  to   the      crusher Bramha  Singh was  bound to      have informed  his  brother  Vikram      singh that  he would  not go to the      mills and was going to the crusher.      But no  such information  was given      to Vikram  Singh.  Inspite  of  the      prearrangement  it   is  said  that      Bramha Singh  went to  the  crusher      which would  indicate that  it  was      not  agreed   between   these   two

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    brothers that they would take their      Buggis together to the mills and if      it was  not a  greed that  both  of      them  would   take   their   Buggis      together then  there was  no reason      for Vikram  Singh to  come  to  the      house of  Bramha Singh at 4 A.M. in      the morning. If Vikram Singh had no      reason to  go to  the house  of the      Bramha Singh  early in that morning      he could  not have raised any alarm      on which P.W.2 Babu Ram reached the      spot. The  presence  of  these  two      witnesses  PW.1  Vikram  Singh  and      PW.2  Babu  Ram  at  the  spot  is.      therefore, greatly doubtful". (10) The High  Court, therefore, discredited the evidence of these two  witness and held that kirat pal singh who claimed to have  gone with  Vikram Singh  (P.W.1) and  had raised an alarm and  saw the  assailants when  coming out of the house could not  be believed.  Kirat Pal Singh was not examined by the prosecution  and,  therefore,  the  claim  of  Babu  Ram (P.W.2) having  come to the place of occurrence could not be accepted. (11) Secondly, while  discarding the  evidence of Km. Mukesh (P.W.3) on the question of identity of A-2 and A-4, the High Court held that although her presence in the house could not be disputed  because she  had  substained  injuries  on  her person but their dim light of that lantern which was burning in the  house was  doubtful. The  High  Court  accepted  her evidence as regards Samai Pal Singh (A-1) being assailant on the ground that he being her brother she could recognised hm in the dim light. The High Court did not accept the evidence of Vikram Pal Singh (P.W.1) as he had no reason to go to the house of  Bramha  Pal  Singh  (P.W.4)  and,  therefore,  his assertion that  he  had  Kirat  Pal  Singh  went  there  was rendered doubtful.  Consequently his  evidence about raising an alarm  and therefore  reaching at the place of occurrence was also rendered doubtful. The High Court disbelieved their evidence as  regards mediation  by A-2 with Bramha Pal Singh (P.W.4) for  giving larger  share to  A-1. The  evidence  of joint cultivation  by A-1  with A-2 was also not accepted by the High Court. As regards the identification of A-2 and A-4 by Vikram  Singh (P.W.1) and Babu Ram (P.W.2) the Court held that there  was no mention in the FIR about the availability of light.  This  omission  was  brought  on  record  by  the defence. The improvements made by the these two witnesses in this behalf were significant and, therefore, it would not be safe to  accept their  evidence as  credible as  regards the identify of A-2 and A-4. The High Court, therefore, gave the benefit of  doubt to  A-2 and  A-4 and acquitted them of all the charges. (11) It is  well settled  that this  Court would  be slow to interfere with  the order  of acquittal  passed by  the High Court unless  it is  shown that  the view  taken by the High Court is  totally unreasonable  and contrary to the evidence on record.  Bearing in  mind this  principle  we  have  very carefully scrutinized  the evidence  of Km.  Mukesh (P.W.3), Vikram Singh  (P.W.1) Babu  Ram (P.W.2) and Bramha Pal singh (P.W.4). It  has come  on record that Smt. Seeso, the sister of Bramha  Pal Singh  (P.W.4) had  come to his house for her delivery and  she had  given birth  to a  female child three days prior  to the  occurrence. It  was,  therefore,  duties reasonable to  accept the evidence of K. Mukesh (P.W.3) when she testified that the lantern was burning in the house. Km.

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Mukesh in  her evidence had stated that she identified Samai Pal Singh  (A-1) and  Raj Singh  (A-2) in the dim light. She also stated  about the  weapons carried  of the same village and Samai  Pal Singh  had good  equation  with  him.  It  is because of  this Km. Mukesh (P.W.3) could identify these two accused persons.  It was  contended on behalf of respondents that it  was impossible  for Km.  Mukesh (P.W.3) to identify Raj  Singh   (A-2)  in   such  a  dim  light  and  that  the investigating officer  had not  seized  the  lantern  during investigation. In  view of these facts the identification by Km. Mukesh of Raj singh (A-2) was highly doubtful. We do not agree with these contentions. The evidence of Km. Mukesh was corroborated by  Vikram Singh  (P.W.1) and  Babu Ram (P.W.2) who had  stated that they saw A-2 coming out of the house on 20.2.1982 at  about 4.00  a.m. and  thereafter he fled away. They identified  A-2 in  the light  of the  lantern that was coming from  the door.  In view of this positive evidence on recorded the  doubt entertained  by the  High Court  in  our considered view was wholly unjustified. (12) It also  needs to  be mentioned that in T.I. Parade all these three  witnesses had  identified A-4,  It is true that the Test  Identification Parade was held one month after the arrest  of  A-4.  There  was  nothing  in  the  evidence  of Investigating Officer  (P.W.7) or  Kirat Pal  Singh  (P.W.9) which would  indicate that  A-4 was  shown to  the witnesses before he  was put  up  for T.I. Parade. No question was put to the  Investigating Office  as to  why the T.I. Parade was held after one month of the arrest of A-4. In the absence of any evidence  on record  we are  not persuaded to reject the same. (13)   It    was   then   contended   on   behalf   of   the respondents/accused that  Vikram Singh  (P.W.1) and Babu Ram (P.W.2) had  no reason  to go  the house of Bramha Pal Singh (P.W.4) as  the latter  was to go to the crusher whereas the earlier was  to go  the Mawaa  sugar mill.  In view  of this evidence it  was urged  on behalf of the respondents/accused that the  claim of  Vikram Singh (P.W.1) that he had gone to the house  of Bramha  Pal Singh (P.W.4) between 3.30 to 4.00 a.. was  totally unbelievable.  In this  behalf reliance was placed on  the Parchi which was obtained from the sugar mill by vikram  Singh (P.W.1).  It is  true that  there  is  some inconsistency but  in our opinion the same is very minor and does not in any way affect the substratum of the prosecution case. Much  emphasis was  led by the learned counsel for the respondents/accused on  time factor  which in our opinion is not that serious infirmity to discard his evidence. (14) It was  then contended for the respondents/accused that the evidence  of km.  Mukesh (P.W.3)  regarding  seeing  the actual incident  by  her  was  quite  doubtful  because  she herself had  sustained injuries  and admitted  that she  was niding under  the cot  and thereafter became unconscious and she  regained  the  consciousness  only  when  Vikram  Singh (P.W.1) gave a call to her at about 6 a.m. Relying upon this evidence it  was  urged  for  the  respondents/accused  that Vikram Singh  (P.W.1) might  have reached  at the  house  of Bramha Pal Singh (P.W.4) at 6.00 a.m. and his claim of going to the  house  of  Bramha  Pal  Singh  (P.W.4)  and  further assertion that  he saw  accused  running  away  was  totally doubtful. It  was further contended that the injuries caused to K.  Mukesh (P.W.3)  were so  serious that  she might have become unconscious  immediately and  might not have seen the incident at  all. We  see  no  substance  in  any  of  these contentions. She  had  testified  all  particulars  how  the assailants causes assault on the inmates. (15) We have  very carefully  gone through  the evidence  of

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Vikram Singh  (P.W.1),  Babu  Ram  (P.W.2)  and  Km.  Mukesh (P.W.3) and  we are satisfied that the evidence of all these three witnesses in trustworthy and cannot be rejected on any ground. The  High Court  in our  opinions had  not read  the evidence of  these witnesses  in proper perspective and as a result thereof  committed a  serious error  while acquitting A-2 and  A-4.  As  stated  earlier  Rampal  Singh  (A-3)  is reported to be dead. (16) For the  aforesaid conclusions the appeals are allowed. The order  of acquittal  passed by the High Court in respect of A-2 and A-4 is quashed and set aside. Raj Singh (A-2) and Lal Singh  (A-4) stand convicted for the offences punishable under Sections  302/34 and  307/34 IPC. Having regard to the passage of  time it would not be proper to award the extreme penalty to  them and  instead A-2  and A-4  are sentenced to suffer life  imprisonment for  an offence  punishable  under Section 302/34  IPC and  RI for  10  years  for  an  offence punishable under  Section 307/34 IPC for causing injuries to Km.   Mukesh   (P.W.3).   Substantive   sentences   to   run concurrently.  Consequently   Reference  under  Section  366 Cr.P.C. is  rejected but  their convictions  recorded by the trial court  for changes offence are upheld. A-2 and A-4 who are on bail shall surrender to their bail bonds forthwith to serve out the remaining part of their sentences.