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PETITIONER:

STATE UTTAR PRADESH

Vs.

RESPONDENT:

NAHAR SINGH (DEAD) & ORS.

DATE OF JUDGMENT: 18/02/1998

BENCH:

G.T. NANAVATI, SYED SHAH MOHAMMED QARDRI

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

QUADRI, J.

These four appeals arise from the common judgment of

the Division Bench of the Allahabad High Court dated October

3, 1985, in four criminal appeals (Nos. 1846 of 1984, 1930

of 1984, 2870 of 1971 and 2871 of 1984) and Referred Case

No.5 of 1984. The Allahabad High Court allowed Criminal

Appeal No. 1846 of 1984 filed by Nahar Singh (A-1) and

Criminal Appeal NO. 1830 of 1984 filed by Shishupal Singh

and Ram Gopal, A-2 and A-6 respectively; dismissed Criminal

Appeal No. 2970 of 1984 filed by the State of Uttar Pradesh

against the acquittal of Liyaqat Ali (A-3), Rakshpal Sing

(A-4, Durgpal Singh (A-5), Bhagat Singh (A-7), Hari Shankar

Singh (A-5), Hari Shankar Singh (A-8) and Criminal Appeal

No. 2871 of 1984 against the acquittal of Brijendra Pal

Singh and Satendra Pal Singh. The above said eight persons

(A-1 to A-8) and Brijendra Pal Singh and Satendra Pal Singh

were tried by the learned IIIrd Additional District and

Session Judge, Ethane in Sessions Trial No.43 of 1981 and

Sessions Trial No. 144 of 1981, respectively, clubbing those

two cases together, for various offences punishable under

different provisions of Indian Penal Code indicated below.

By judgment dated 3rd July, 1984, the learned Sessions

Judge found Nahar Singh (A-1) quality of offences punishable

under Sections 148, 302 (simplicitor), 449 and 201 IPC,

sentenced him to death under Section 302 IPC, subject to

confirmation by the High Court; sentenced him to undergo two

years' rigors imprisonment under Section 148 IPC, seven

year's rigors imprisonment under Section 449 IPC and four

years' rigorous imprisonment under Section 201 IPC.

Shishupal Singh (A-2) and Ram Gopal (A-6) were found quality

of offences under Sections 148, 302/149, 449 and 201 IPC and

were sentenced to undergo imprisonment for life under

Section 302/149, IPC, two years' rigorous imprisonment under

Section 148 IPC, seven years under Section 449 IPC and five

years' rigorous imprisonment under Section 201 IPC. The

sentences of imprisonment were directed to run concurrently.

The other accused persons, namely, Liyaqat Ali, Rakshpal

Singh, Durgpal Singh, Bhagat Singh, Hari Shankar, Brijendra

Pal Singh and Satendra Pal Singh, were held not quality of

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offences punishable under Section 147, 148, 392/149, 449 and

201 IPC and they were accordingly acquitted of all the

charges levelled against them.

The events leading to the ghastly murders on the

fateful day, October 4, 1980, had their genesis in the

murder of Kunwar Pal Singh, father of Nahar Singh in 1978,

in respect of which he gave a complaint against Ram Gopal,

Vijay Pal, Shyam and Bhupinder Singh. Thereafter, there have

been murders allegedly by the members of the rival groups.

In the instant case, the case set up by the prosecution is

that on that day at about 6.30 P.M., Ram Gopal, his son,

Satendra Pal Singh (PW-1) and his brother Krishan Gopal (PW-

2) were sitting at the Baithak of his house in village Patna

and were talking to Saheb Singh, resident of Nagla Madhupur

(father-in-law of his sons, Jitendra Singh), when Nahar

Singh, Shishupal Singh, Ram Gopal (another person of the

same name) all residents of village Patna, Bhagat Singh,

resident of village Lakhnai, Hari Shankar (brother of Nahar

Singh), Liyaqat Ali, Durgpal Singh, Rakshpal Singh, Bhagat

Singh, Vijendra Pal Singh, Hari Shankar and Satendra Pal

Singh Accompanied by seven or eight unknown persons arrived

there armed with guns, pistols, spears and lathis and caught

hold of Ram Gopal who was shot dead by Nahar Singh, Some of

them then present uttered that Vijay Pal Singh And Manpal

were at their houses. The then proceeded to the house of

Vijay Pal Singh where Nahar Singh fired at Manpal causing

his instantaneous death. On seeing this, Vijay Pal Singh

rushed to a room inside the house, bolted the door from

inside but the followed him, broke open the door with the

help of axe and then Nahar Singh fired at Vijay Pal Singh

who died then and there. They dragged the dead bodies of

Manpal and Vijay Pal Singh to the house of Ram Gopal where

Nahar Singh again fired at the dead body of Ram Gopal. Then,

all the three dead bodies were dragged to the open land

lying behind the Junior High School, put them on the heap of

dung cakes and lit fire to them. They kept a watch on the

road near Junior High School upto 5.00 A.M. On early morning

of 5th October, 1980, PW-1 went to the police station along

with the written report already prepared at his house in the

night at about 2.00 A.M. and handed over the same (Exh. Ka)

in the police station to the Head Constable, Pyare Lal, at

7.00 A.M., who prepared check report (Exh.Ka-13). Rajender

Singh Asthana, Sub-Inspector (PW-16) took up the

investigation. He found three half burnt dead bodies on the

vacant land behind the Junior High School, Patna. He

prepared inquest report and sent the dead bodies for post-

mortem examination through Constable Gajender Pal and

Rajender Pal. Thereafter, he recorded the statements of PWs.

1,2,3 and 5 (eye witnesses). proceeded to house of deceased

Ram Gopal, prepared recovery memo of empty cartridges and

collected the blood stained earth the plain earth which was

found in front of his house. He then went to the houses of

Vijay Pal and Manpal, the victims. He noticed the marks of

dragging of the dead bodies from their houses to the Junior

High School where the bodies were dept on the heap of dung

cakes and burnt. He also found blood at two places in front

of the house of Vijay Pal and also inside the house and

collected the blood stained earth and plain earth and

prepared recovery memo. He found ten pellets and two wads

inside one of the rooms of the house of Vijay Pal, where he

was murdered.

Dr. O.P. Vaidya (PW-4) conducted the post-mortem

examination on the remains of the bodies of the said three

deceased persons and prepared report (Exh.Ka-3). He opined

that the burnt bones and parts of the body were of human

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beings. He could not ascertain the sex, age and stature of

the persons whose remains were sent for post-mortem

examination. He, however, opined that the death was the

result of the fire arm injuries sustained by the deceased

persons. In the test identification held at District Jail.

Etah on 31st March, 1981. Vijender Pal and Satender Pal

were identified by the prosecution witnesses but Hari

Shankar could not be identified by them.

On the application of the accused persons for

investigation by CID, the case was entrusted to Devinder

Singh (PW-17), CB CID Inspector, who after completing the

investigation submitted the chargesheet against eleven

persons of whom one Khajanchi was discharged by the trial

court under Section 227 Cr. P.C. The cases proceeded against

the remaining ten persons noted above. The prosecution

produced eighteen witnesses out of whom PWs.1 to 3 and PW-5

are eye witnesses. PW-1 is the son and PW-2 is the brother

of the deceased Ra, Gopal; PW-3, Anusuiya, a girl of nine

years is the daughter of Manpal and PW-5, Kaila Devi, is the

widow of Vijay Pal Singh. On consideration of the material

on record, the learned IIIrd Additional District and

Sessions Judge found the above said three accused quality of

offences and awarded them various sentences noted above, and

acquitted the remaining seven accused.

It has already ben mentioned that on appeal by the said

convicted accused (A-1, A-2 and A-6), the High Court set

aside the conviction and sentence and allowed their appeals

and dismissed the appeals filed by the State against the

acquittal of the seven accused.

In these appeals, it is brought to our notice that

Nahar Singh (A-1), who was on bail, was murdered on October

20, 1986. The appeal relating to Nahar Singh, therefore,

abated.

In the appeal relating to Shishupal Singh and Ram

Gopal, Sri G.K. Mathur, the learned senior counsel appearing

for the State of Utter Pradesh, has contended that the trial

court has correctly assessed the evidence on record and

after elaborate discussion found A-2 and A-6 quality of

offences charted and that the High Court was not justified

in acquitting A-2 and A-6 for reasons which are trivial and

contrary to the evidence. The learned counsel for the said

respondents supported the reasons given by the High Court

and argued that after thoroughly examining the evidence, the

High Court found them not quality and it is not a case which

warrants interference in the appeal against acquittal.

To appreciate the contentions of the learned counsel,

we have gone through the judgments of the trial court and

the High Court and the evidence on record. The trial court

believed the evidence of PW-1 (an eye witness) who spoke to

the fact that Nahar Singh and Shishupal Singh were armed

with guns and Ram Gopal was armed with Ballam (spear) and

they were amount the bandits who committed the murder of the

deceased Ram Gopal. The evidence of PW-1 was corroborated on

all the material facts by PW-2 (another eye witness). The

statement of the third eye witness, PW-3, although a child

witness, was also relied upon by the trial court, noting

that she was consistent in her statement that Nahar Singh

and Shishupal Singh were armed with gunned and that Ram

Gopal was armed with Ballam (spear) when Nahar Singh

murdered her father in front of the house of Vijay Pal

Singh. She specifically stated that Nahar Singh fired at

Vijay Pal Singh from his gun and Vijay Pal Singh died of

gunned shot. The presence of those witnesses was believed by

the trial court as well as by the High Court at the time of

occurrence. PW-5, yet another eye witness, also stated that

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on the date of occurrence at about 6.30 P.M., there was

twilight and a lamp was also burning in the house when Nahar

Singh, Shishupal Singh and Ram Gopal entered her house.

Nahar Singh dragged Vijay Pal out of Kotha and Vijay Pal

Singh was murdered by Nahar Singh stating that he alone

would kill him. Thus, statements of PWs.1 and 2 established

that Nahar Singh had murdered the deceased Ram Gopal and

that of PWs.3 and 5 that he also committed murder of Manpal

and Vijay Pal and that at that time Shishupal Singh was also

armed with gun and Ram Gopal was armed with spear. Relying

on the oral evidence of the above said eye witnesses and the

evidence of Dr. O.P. Vaidya (PW-4) the trial court found A-

1, A-2 and A-6 quality of offences charged.

The High Court accepted the testimony of PWs. 1,2,3 and

5 and that of PW-4 (Doctor) and held that it was established

that Ram Gopal, Manpal and Vijay Pal were done to death in

the morning of 4th October, 1980. However, observing that

though Ram Gopal (A-6) was said to have been armed with

spear, according to the evidence of their witnesses recorded

by the trial court, yet no weapon or role was assigned to

him in the FIR, the High Court concluded that it was

difficult to hold that the prosecution has succeeded in

proving his quilt and set aside the conviction of and

sentence awarded to A-6. Regarding Shishupal Singh (A-2),

the High Court noted that he was said to have been armed

with gun by the witnesses before the court and in their

statements recorded by the second investigating officer (PW-

17), after a lapse of two months of the occurrence, although

no weapon was assigned to him in the FIR, or in the

statements given to the first investigating officer (PW-16).

It also noted that no specific role was assigned to him

either in the FIR or in the statements by the witnesses.

These factors together with the findings that there was

delay in lodging the FIR and the explanation for delay was

not convincing: the FIR was filed after consultation and

that here was o light at the time of occurrence oat about

6.30 P.M., either at house of Ram Gopal or at the house of

Vijay Pal to enable the witnesses to recognize the

assailants of the three deceased persons, weighed with the

High Court to conclude that the prosecution had failed to

prove the guilt of A-2 and A-6 beyond shadow of doubt.

On careful reading of the evidence of PWs. 1,2,3 and 5,

which was accepted by the High Court to record the finding

that Ram Gopal, Vijay Pal Singh and Manpal were murdered on

the evening of 4th October, 1980, we are of the opinion that

reasons given by the High Court to acquit A-2 are hardly

sufficient to justify interference with the well considered

judgment of the trial court finding them quality of offences

under Sections 302, 148 and 201 IPC.

Now, we shall examine those reasons. The High Court

laid some emphasis on certain aspects dealing with the FIR;

firstly delay in filing the FIR, which remained unexplained,

and also on the fact that there was consultation before

filing the FIR. The evidence on record discloses that

gruesome murder of the deceased persons was committed by the

appellants and others who dragged the dead bodies to the

rear side of the Junior High School, placed them on the heap

of dung cake and burnt them there. The assailants were

keeping a watch on the road throughout the night. The

atmosphere there was awesome. In such circumstances, late in

the night no reasonable person would have dared to go to the

police station to lodge the complaint. PW-1 stated that he

noticed that the assailants left the place at about 5.00

A.M. He then proceeded from the house to go to police. Thus,

he lodged complaint at the earliest possible time. It has

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come in evidence that the distance from the scene of

occurrence to the police station can be covered in about two

hours. The complaint was given in the police station at

about 7.00 A.M. This account, in our view, is a good and

sufficient explanation for the delay in giving the complaint

explanation for the delay in giving the complaint to police

by PW-1.

It may be noted here that that part of the statement of

PW-1 was not cross-examined by the accused. In the absence

of cross-examination on the explanation of delay, the

evidence PW-1 remained unchallenged and ought to have been

believed by the High Court. Section 138 of the Evidence Act

confers a valuable right of cross-examining the witness

tendered in evidence by the opposite party. The scope of

that provisions is enlarged by Section 146 of the Evidence

Act by a allowing a witness to be questioned:

(1) to test his veracity.

(2) to discover who he is and what

is his position in life, or

(3) to shake his credit, by

injuring his character, although

the answer to such questions might

tend directly or indirectly to

criminate him or might expose or

tend directly or indirectly to

expose him to a penalty or

forfeiture.

The oft quoted observation of Lord Herschell, L.C. in

Browne vs. Dunn [(1893) 6 The Reports 67] clearly elucidates

the principle underlying those provisions.

It reads thus:

I cannot help saying, that it seems

to me to be absolutely essential to

the proper conduct of a cause,

where it is intended to suggest

that a witness is not speaking the

truth on a particular point, to

direct his attention to the fact by

some questions put in cross-

examination showing that

imputation is intended to be made,

and not to take his evidence and

pas it by as a matter altogether

unchallenged, and then, when it is

impossible for him to explain, as

perhaps he might have been able to

do if such questions had been put

to him, the circumstances which, it

is suggested, indicate that story

he tells ought not to be believed,

to argue that he is a witness

unworthy of credit. My Lords, I

have always understood that if you

intend to impeach a witness, you

are bound, whilst he is in the box,

to give an opportunity of making

any explanation which is open to

him; and, as it seems to me, that

is not only a rule of professional

practice in the conduct of a case,

but it is essential to fair play

and fair dealing with witnesses.

This aspect was unfortunately missed by the High Court

when it came to the conclusion that explanation for the

delay is not at all convincing. This reason is, therefore,

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far from convincing.

Regarding preparation of the FIR in consultation with

others, it is noticed that this is spoken to by PW-2 who is

the brother of the deceased Ram Gopal. The complaint is said

to have been prepared by PW-1, son of the said Ram Gopal,

late in the night at about 2.00 A.M. When there are two male

members of the family who were grief stricken, it was but

natural that PW-1 and his uncle (PW-2) should talk about

giving the complaint and draft the same. The fact, in the

circumstances of this case, can hardly be a ground to weaken

the case of the prosecution.

The third aspect pointed out by the High Court is, no

motive was assigned to A-2 to join hands with A-1 for

commission of the offences. When the participation of the

accused A-2 is established by the evidence of eye witness,

absence of motive pales into insignificance and cannot be a

ground to justify his acquittal.

The last facet is that no weapon or role was assigned

to A-2 and A-6 in the FIR and that hose facts were stated in

the statement recorded by the second investigating officer

(PW-17) much later. It will he useful to read here the

relevant portion of the FIR, which is in the following

terms:

"That at that time Nahar Singh s/o

Bhanwarpal Singh, Shishpal s/o

Ishwarpal Singh, Layakat Ali s/o

Raffique, Rakshpal Singh s/o Kamal

Singh and Thakur Ram Gopal s/p

Bhikey Jatav of my village and

Bhagat Singh r/o Lakhanai P.S.

Jalessur and Harishankar s/o

Mohinderpal Singh, Brother-in-law

of Nahar Singh of Shehzadpur P.S.

Hathras Distt. Aligarh and 7-8

others persons whom I do not know

by name but can identify if fact to

face, came at once from in front of

the house helping gun, pistol,

ballam, lathie etc, and caught hold

of my father who was lying on the

cot and shot him dead. This

incident was witnesses by the women

and children of our family*...*.

A perusal of the above excerpt of the FIR shows that it

is not a case where weapons and different roles are assigned

to some of the accused but no weapon of role is assigned to

A-2 and A-6. The purpose of recording Fir under Section 154

of the Criminal Procedure Code is to set the investigating

agency in mooting for prosecuting the persons responsible

for the cognizable offence mentioned in the FIR. Though the

FIR should not be too sketchy or vague, yet non-mentioning

of the details and meticulous particulars is not ground to

reject the case of the prosecution [Sec 1979 Criminal Law

Journal 1295]. Therefore, the omission pointed out by the

High Court is not fatal to the case of the prosecution.

Yet another ground which impressed the High Court is

about identification of the assailants who took part in the

commission of the offences. The High Court observed that the

time was 6.30 P.M., it was dusk. lantern was burning at the

scheme of the occurrence and there was no sufficient

artificial light which could enable the eye witnesses to

identify the assailants. That part of the statement of PW-5

which is referred to by the High Court to infer that there

was no light to identify the assailants, reads as follows:

"Sham Ke Sade Chhe Baje Samaye Tha.

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Suraj Doob Chuka Tha. Suraj Chhip

Gaya Tha, Magar Roshni Thi" Us

Samaye Ghar Me Lalten Jala Li Thi.

Lalten Isliye Jala Li Thi Ki Dono

Wakt Mil Gaye The."

From the above quoted statement, it is evident that the

time was 6.30. and that though the sun had set, yet there

was light and at that time the lantern was also lighted. She

had given the explanation for lighting the lantern as Dono

Wakt mil; gaye the". It is a colloquial phrase which means

that the day time was over and the evening time had

commenced. At that time, it won't be too dark to see the

person particularly when they are known. Further, when the

light was enough to enable the assailants to identify their

victims and kill them, it can hardly be contended, much less

accepted, that the light was not enough to identify the

assailants.

The principle with regard to interference in the appeal

against acquittal under Section 378 Cr.P.C. are well

established. While dealing with the power of the High Court

to reverse an order of acquittal on a matter of fact, Lord

Russell of Killowen, speaking for the Privy Council, in Sheo

Swarup & Ors. vs. King Emperor (AIR 1934 S.C.227). observed

thus:

"There is in their opinion no

foundation for the view, apparently

supported by the judgments of some

Courts in India, that the High

Court has no power or jurisdiction

to reverse an order of acquittal on

a matter of fac t, except in cases

in which the lower Court has

`through incompetence, stupidity

or perversity' reaches such

`distorted conclusions as to

produce a positive miscarriage of

justice', or has in some other was

so conducted itself as to produce a

glaring miscarriage of justice, or

has been tricked by the defence so

as to produce a similar result.

Sections 417, 418 and 423 of the

Code give to the High Court full

power to review at large the

evidence upon which the order of

acquittal was founded, and to reach

the conclusion that upon that

evidence the order to acquittal

should be reversed. No limitation

should be placed upon that power,

unless it be found expressly stated

in the Code. But in exercising the

power conferred by the Code and

before reaching its conclusions

upon fac t, the High Court should

and will always given proper weight

and consideration to such matters

as (1) the views of the trial Judge

as to the credibility of the

witnesses; (2) the presumption of

innocence in favour of the accused,

a presumption certainly not

weakened by the fact that he has

been acquitted at his trial; (3)

the right of the accused to the

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benefit of any doubt; and (4) the

slowness of an appellate court in

disturbing a finding of fact

arrived at by a Judge who had the

advantage or seeing the witnesses.

To state this however is only to

say that High Court in its conduct

of the appeal should and will act

in accordance with rules and

principles well known and

recognised in the administration of

justice."

These principles have been approved and followed in

numerous decisions of the Supreme Court. To mention a few,

see Paramdas vs. The State (AIR 1954 SC 36); Sanwat Singh

vs. State of Rajasthan (AIR 1961 Sc 715 = 1961 (3) SCR

120).

In State of U.P. vs. Krishna Gopal & Anr. (1988 (4) SCC

302), M.N. Venkatachaliah, J. (as he then was) summarised

the principle as follows:

"The plenitude of the power of the

appellate court to review and

reappreciate the evidence cannot be

limited under the supposed rule

that unless there are `substantial'

or `compelling' reasons' or `strong

reasons', the findings in a

judgment of acquittal should not be

interfered with. There is thus no

immunity to an erroneous order from

strict scrutiny. But the appellant

court whenever it finds

justification to reverse an

acquittal must record reasons why

it finds the lower court wrong."

In Ajit Savant Majagvai vs. State of Karnataka (1997

(7) SCC 110), the above noted principles have been approved

and restated.

If on re-assessment of the evidence, the appellate

court comes to the conclusion that the quilt of the accused

is established, the fact that the appeal is against the

acquittal will be immaterial. However, if two views are

possible, the court, having regard to the basic principle

that presumption of innocence of the accused gets

strengthened by the fact of his acquittal by court, should

take the view that supports the acquittal of the accused.

For the above reasons, we hold that the view of the

evidence taken by the High Court is erroneous and that it

misled itself in coming to the conclusion that the quilt of

A-2 and A-6 was not established; we are of the view that

prosecution has proved the quilt of the accused beyond any

reasonable doubt. The trial court was, therefore, right in

convicting them and that the High Court was not justified in

interfering with the conviction and sentence of Shishupal

Singh (A-2) and Ram Gopal (A-6) on grounds which are hardly

sustainable in law. Accordingly, judgment of the High Court

dated October 3, 1985 in Criminal Appeal No. 1830 od 1994

is set aside, judgment of the trial court dated 3rd July,

1984, insofar as it related to A-2 and A-6, is restored and

Shishupal Singh (A-2) and Ram Gopal (A-6) are directed to be

taken into custody to serve their sentences. The appeals

filed by the State against the said respondents (Respondents

Nos.2 and 3) are allowed, as indicated above, and they are

dismissed against other respondents.

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