Subhash & ANR Vs. State of U.P
 INSC 143 (6 May 1976)
SARKARIA, RANJIT SINGH SHINGAL, P.N.
CITATION: 1976 AIR 1924 1976 SCR 587 1976 SCC
Code of Criminal Procedure, S. 374-Reference
for confirmation of death sentence, whether High Court obliged to examine
entire evidence independently.
Ram Sanehi received two gun-shot wounds on
his chest, and died within ten minutes. Two of his children claimed to have
witnessed the occurrence. The dead body was subjected to post-mortem only after
about 24 hours had elapsed. The same evening, appellant Subhash surrendered,
and appellant Shyam Narain was arrested, though for another offence altogether.
The Sessions Court convicted them under s. 302 I.P.C. and sentenced Subhash to
death and Shyam Narain to imprisonment for life. The accused moved the High
Court in appeal, while the Sessions Court referred the matter to it under s.
374, for confirmation of the death-sentence.
The question before this Court was, whether
in the case of such references, the High Court was obliged to examine the
entire evidence independently.
Allowing the appeal, the Court,
HELD: On a reference for confirmation of the
sentence of death, the High Court is under an obligation to proceed in
accordance with the provisions of sections 375 and 376 of the Criminal
Procedure Code. The High Court must not only see whether the other order passed
by the Sessions Court is correct but it is under an obligation to examine the
entire evidence for itself, apart from and independently of the Sessions
Court's appraisal and assessment of that evidence.
[589A-B] Jumman and Ors. v. The State of
Punjab AIR 1957 S.C. 460; Ram Shanker Singh and Ors. v. State of West Bengal
 Supp. 1 SCR 49 at 59 and Bhupendra Singh v. The State of Punjab  3
SCR 404, followed.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 420 of 1974.
Appeal by Special Leave from the Judgment and
Order dated 27-11-74 of the Allahabad High Court in Criminal Appeal No. 2646/73
and Referred No. 95/73.
Frank Anthony, E.C. Agarwala and A. T. M.
Sampath; for the Appellants.
O.P. Rana; for the Respondent.
The Judgment of the Court was delivered by
CHANDRACHUD, J. The appellants, Subhash and Shyam Narain, were convicted by the
learned Civil and Sessions Judge, Farrukhabad under section 302 of the Penal
Code on the charge that at about 9 a.m. on June 9, 1972 they committed the
murder of one Ram Sanehi. Subhash was sentenced to death and Shyam Narain to
imprisonment for life. The judgment of the trial court having been confirmed in
appeal by the High Court of Allahabad, the two accused have filed this appeal
by special leave of this Court.
588 The case of the prosecution is briefly as
follows: on the morning of June 9, 1972 the deceased Ram Sanehi had gone to his
field along with his son Bal Kishore and his daughter Kusuma Devi for eating
Kharbuzas. While they were returning from the field at about 9 a.m. the
appellants, who were lying in wait near a culvert, suddenly accosted Ram
The Appeallent Subhash pointed the barred of
his gun towards the chest of Ram Sanehi and said that since he, Ram Sanehi, was
a witness against him in a complaint filed by Pooran Lal and since he was also
doing Pairvi on behalf of Pooran Lal he would not be allowed to remain alive.
The appellant Shyam Narain was armed with a lathi. Bal Kishore and Kusuma Devi
pleaded with the appellants to spare their father but Shyam Narain asked
Subhash not to delay the matter and finish Ram Sanehi quickly. Subhash
thereupon fired three shots from his double-barrelled gun, the last of which
misfired. Ram Sanehi fell down, whereupon the appellants dragged him by his
legs over a distance of 6 or 7 paces. Bal Kishore and Kusuma Devi then raised
an alarm whereupon Brij Bhusan, Shyam Lal Mangali Prasad and Jhabbo Singh
Thakur reached the place of occurecnce and challenged the appellants. Before
running away, the appellant Subhash told his companion Shyam Narain that he on
his own part was going to surrender before a court and that Shyam Narain should
make his own arrangements. Ram Sanehi died within about 10 minutes after
receiving the injuries.
Bal Kishore first went to his house which is
at about a distance of 120 yards from the scene of offence. At about 12 o'clock
at noon he went to the Kamalgani police station and lodged his First
Information Report (Ex. Ka-3). S.I.
Vishwanath Sharma who was posted as a 2nd
officer at the police station recorded Bal Kishore's complaint. Went to the
scene of occurrence, prepared the inquest report and handed over the dead body
for being sent for post-mortem examination to the District Hospital at
Farrukhabad which is about 10 miles away from the village of Kandharpur where
the incident took place. S.I Sharma took samples of earth from the place of
occurrence an seized a mis fired cartridge which was lying concealed in the
folds of the deceased's Dhoti. The Fard in that behalf is Ex. Ka-10 and the
site- plan is Ex. Ka-11.
The appellant Subhash surrendered before the
Additional District Magistrate (Judicial) at Farrukhabad at about 4 p.m. on the
very day. The appellant Shyam Narain was arrested at about 2-40 p.m. on the
same day under section 122 of the Railway Act for crossing The railines at
The appellants denied the charge that they
had committed the murder- of Ram Sanehi and stated that they were involved in
the case due to enmity. This defence has been rejected both by the Sessions
Court and the High Court.
Before referring to the evidence in the case
it has to be mentioned that the High Court had before it not only the appeal
filed by the accused but also a reference made by the Sessions Court for
confirma tion of the capital sentence under section 374 of the Code of Criminal
589 Procedure. Time and again this Court has pointed out that on a reference
for confirmation of the sentence of death, the High Court is under an
obligation to proceed in accordance with the provisions of sections 375 and 376
of the Criminal Procedure Code. Under these sections the High Court must not
only see whether the order passed by the Sessions Court is correct but it is
under an obligation to examine the entire evidence for itself, apart from and
independently of the Sessions Court's appraisal and assessment of that
From the long line of decisions which have
taken this view it would be enough to refer to the decisions in Jumman and ors.
v. The State of Punjab, Ram Shanker Singh & ors. v. State of West Bengal
and Bhupendra Singh v. The State of Punjab.
The High Court has failed to show due regard
to this well-established position in law. It did not undertake a full and
independent examination of the evidence led in the case and it mainly contented
itself with finding out whether the Sessions Court had in any manner erred in reaching
the conclusion that the charge of murder levelled against the appellants was
established beyond a reasonable doubt. The High Court is right in saying that
the main question in the case was whether Bal Kishore and Kusuma Devi who were
examined as eye-witnesses were truthful witnesses. But then it did not subject
their evidence to any minute scrutiny.
Impressed overbearingly by the circumstance
that the Sessions Court "had the opportunity of observing the
demeanour" of the witnesses, the High Court apparenty thought that such an
opportunity gave to the Sessions Court's judgment a mystical weight and
authority, even though the learned Sessions Judge had not, in his judgment or
while recording the evidence, made any special reference to the demeanour of
the witnesses. The High Court accepted the evidence of Ram Sanehi's children by
observing that there was no material contradiction ill their evidence and that
certain statements in the F.I.R. afforded a guarantee that the two witnesses
were present when their father was done to death. We will now proceed to show
how several significant circumstances either escaped the attention of the High
Court or were not given their due and rightful importance.
First as to the manner in which S.I. Sharma
conducted investigation into the case. The offence took place at about 9 a.m.
on June 9 and though the District Hospital at Farrukaabad was just 10 miles
away, the dead body was not received at the hospital for nearly 24 hours after
the incident had taken place. The excuse offered by the prosecution that
cartman was not willing to take the body at night is utterly flimsy because the
Investigating officer could have easily made some alternate arrangement for dispatch
in the dead body for postmortem examination expeditiously. With the dead body
lying at the scene of offence for nearly 12 hours and thereafter at the police
station for another 8 or 9 hours, it was easy enough for the witnesses to mould
590 their statements so as to accord with the nature of injuries. The investigating
Officer did not make any note at all in the General Diary as to which witnesses
were examined by him on the date of the occurrence which was obligatory upon
him to do under paragraph 44 of the U.P. Police Act.
The time when the investigation was commenced
and the time when it was concluded are not mentioned in the case diary.
The time when the Investigating officer
reached the village and the time when he returned to the police station are
also not noted in the case diary. S.I. Sharma stated in his evidence that
several important facts concerning the investigation were being stated by him
in his evidence from memory. He reached the scene of offence at about 2-30 p.m.
but it was not until about 6 p.m. that he
inspected the site. The dead body was not removed from the scene of offence
till about 9 p.m. and even that is open to grave doubt because the
Investigating officer has admitted in his evidence that he was unable to say as
to when the dead body was taken away from the spot and whether it was taken
directly to the hospital or was detained somewhere on the way. He was unable to
say whether it was right or wrong that the dead body remained in the village
till about 4 'O'clock on the morning of the 10th. Forty or fifty persons had
gathered at the scene of offence when the Investigating officer arrived but the
record of the case does not show that the statement of any of those persons was
ever recorded. In fact even the statement of Kusuma Devi was recorded late at
night for which the reason is stated to be that her elder sister Pushpa Devi
died of shock on the evening of the 9th after hearing of her father's murder.
It may be that Pushpa Devi died on the 9th, but apart from the cause of her
death, the statement of Kusuma Devi need not have been held up so long. We are
doubtful if the Investigating officer at all knew on the 9th that Pushpa Devi
had died. He has admitted that his knowledge in that behalf was derived from
hearsay reports. The appellant Subhash had surrendered before the Additional
District Magistrate, Farrukhabad on the afternoon of the 9th itself while the
other appellant Shyam Narain was arrested at Fatehgarh at about 2-40 p.m. The
Investigating officer did not even know of these significant developments,
though they had taken place just a few miles away from the scene of
investigation. He says that he learnt of the surrender and the arrest of the
appellants on the evening of the 12th.
Mangali Prasad has been examined by the
prosecution as an eye-witness and his name is mentioned in the F.I.R. as one of
the four persons who arrived at the scene of offence even before the appellants
had run away. His statement was recorded 11 days later on June 20. The F.I.R.
mentions expressly that the appellants caught hold of the legs of the deceased and
started dragging him. The Investigating officer has not stated in the Panchnama
of the scene of offence whether the ground was soft or hard or sandy which had
great relevance on the allegation that the deceased was dragged over a certain
distance. Finally, it is surprising that the Investigating officer did not
think it worthwhile to pay a visit to the field where the deceased is alleged
to have gone with his children for eating Kharbuzas. Indeed he stated that he
was not in a position to say if there were Kharbuzas at all in the field, when
the occurrence took place.
591 The High Court has condoned these lapses
on the part of the Investigating officer with the observation that he
"appears to have been inexperienced and somewhat negligent".
The Investigating officer has stated in his
evidence that he had put in 7 years of service. It is difficult to understand
on what basis the High Court attributed the lapses on his part to mere
inexperience. We will presently indicate the significance of the various lapses
and loopholes in investigation but to say, as the High Court has done, that the
Investigating Officer was "somewhat negligent" seems to us in the
circumstances a grave euphemism.
We will now proceed to deal with the various
circumstances which, in our opinion, render it unsafe to accept the prosecution
Dr. S.C. Pandiya who performed the
post-mortem examination has described in his evidence the injuries received by
Ram Sanehi. In all he found 7 injuries on the dead body, out of which injuries
1, 3 and 7, injuries 2 and 4, and injuries 5 and 6 are interconnected. Injury
No. 1 is described as a "shot wound" with its entry above the left
nipple. Injury No. 3 is described as multiple rounded abrasions on the left
side of the chest. Injury No. 7 is the wound of exit on the right scapular
region, corresponding to injury No. 1. rnjury No. 2 consists of 8 gunshot
wounds of entry below the right nipple while injury No. 4 consists of multiple
rounded abrasions above the right nipple. Injury No. 5 is a gun-shot wound of
entry on the back of the left forearm while injury No. 6 is the corresponding
wound of exit near the ulnar aspect of the left forearm.
The evidence of Dr. Pandiya and the
description of the injuries given by him in the post-mortem report tend to show
that two different kinds of firearms were used by the assailants of Ram Sanehi.
Injury No. 1 was caused by a bullet and that is clear not only from the
description of the injury but from what Dr. Pandiya has stated in his evidence.
He says: "The bullet, which had entered through injury No. 1 went out
straight after emerging from injury No. 7". Injuries Nos. 2 and 5 were
caused by pellets. This shows that whereas injury No. 1 was caused by a firearm
in the nature of a rifle, injuries 2 and 5 were caused by an ordinary gun. The
medical evidence thus falsifies the eye- witnesses' account according to which,
the appellant Subhash alone was armed with a double-barrelled gun, the other
appellant Shyam Narain being armed with a lathi. The objective inference
arising from the nature of injuries received by the deceased has a significant
impact on the case of the prosecution, which has been overlooked by both the
Sessions Court and the High Court.
While we are on the medical evidence it would
be appropriate to mention that there was no tatooing or charring on any of the
firearm injuries which, according to the doctor, shows that the firing was done
from a distance of more than 4 feet. In the First Information Report Bal
Kishore has stated that as soon as he, his father and sister, reached the
culvert, Subhash "touching the chest" of Ram Sanehi "with the
592 barrel of his gun" said that he shall not leave him alive;
Shyam Narain thereupon exhorted Subhash not
to delay and fire immediately; Subhash then fired three shots in quick
succession, one of which mishred. The trend of the F.I.R. is that Subhash fired
the first two shots at Ram Sanehi from a point blank range, in which event
indisputably, there would have been tatooing and charring around the injuries.
Bal Kishore has attempted to offer an explanation that what he meant to say in
his compaint was that Subhash trained his gun "towards" Ram Sanehi's
chest and not "on" his chest.
This explanation is an afterthought and in
the circumstances difficult to accept. Thus in another important respect, the
medical evidence falsifies the case of the prose cution.
There is another aspect of the medical
evidence which, though, not as important as the two aspects mentioned above,
may also be referred to. The case of the prosecution is that Ram Sanehi had
gone to his Kharbuza field with his son and daughter for eating
Kharobuzsas.There is evidence that they did eat Kharbuzas and almost
immediately there after they started back for home. Within less than 5 minutes,
Ram Sanehi met with his deat near the culvert. The post-mortem report shows
that Ram Sanehi's stomach was empty which means that the evidence that he had
eaten Kharbuzas just a little time before his death is untrue. Bal Kishore
tried to wriggle out of this situation by saying that Ram Sanehi had eaten just
a small slice of Kharbuza. But even there, Dr. Pandiya has stated that if the
entire slice of Kharbuza was eaten by Ram Sanehi, its remains would be found in
the stomach provided there was no vomiting after the gun-shot injuries. Since
Ram Sanehi had not vomited, his large intestines could not have been found to
be empty if the story of his children was true.
This last circumstance may at first sight
seem trivial but its importance consists in the fact that the visit of Ram
Sanehi, along with his children, to the Kharbuza field for the purpose of
eating Kharbuzas is the very genesis of the incident which happened on June 9,
1972. Coupled with the circumstance that the Investigating officer did not even
pay a visit to the Kharbuza field, leave alone making a Panchnama thereof, the
conclusion is irresistible that the story that the children had accompanied
their father to the Kharbuza field lacks a factual basis.
The other circumstances which render the
prosecution case suspect are these (1) Ram Sanehi is alleged to have been
drageed over 6 or 7 paces by the appellants but not even an abrasion was found
on his back or stomach which could be attributed to dragging. (2) Thirty or
forty persons are alleged to have collected at the sence of occurrence but Bal
Kishore was not able to mention the name of even one of them and it is common
ground that the Investigating officer did not record the statement of any of
them. (3) Jhabboo Singh, Shyam Lal Brij Bhushan and Mangali Prasad reached the
scene of offence even before the appellants had fled away but none from amongst
the first three was examined by the prosecution. Mangali Prasad was examined as
an eye-witness but he has been concurrently disbelieved by the Sessions Court
and the High Court. (4) Though the motive of the offence is alleged to be that
in a complaint filed by Pooran Lal against the appellant Subhash, the deceased
Ram Sanehi was cited as a witness, Mangali Prasad's evidence shows that
immediately after the firing, Bal Kishore told him that Ram Sanehi was murdered
because of the disputes concerning the election to the Pradhanki. What Bal
Kishore told Mangali Prasad immediately after the incident seems more probable
because, one Virendrapal had contested that election and the appellant Subhash
had defeated him. When Bal Kishore went to lodge his F.I.R. at the police
station he was accompanied by Virendrapal, though an attempt was made to show
that Virendrapal was only standing outside the police station and had met-Bal
Kishore accidently. (5) The story of Bal Kishore that after the appellant
Subhash fired 2 shots he re-loaded his gun but the re-loaded cartridge misured
makes hardly any sense. Subhash was armed with a double barrelled gun and
having fired 2 fatal shots from a close range at his target, it is unlikely
that he would re-load the gun and that too with only one cartridge. And if that
cartridge misfired, it is impossible to understand how it could be found
concealed in the folds of Ram Sanehi's dhoti.
There is only one other aspect of the matter
which remains to be considered and since the High Court has placed great
reliance thereon, it is necessary to deal with it. The F.I.R. which lodged at
about 12 O'clock at noon on the 9th itself mentions that after Ram Sanehi was
murdered, the appellant Subhash told his companion Shyam Narain that he himself
was going to surrender before a court and that Shyam Narain should make his own
arrangement. In fact, Subhash did surrender in the court of the Additional
District Magistrate, Farrukhabad, at about 4 p.m. on the 9th. What the High
Court has over-looked is that Subhash did not surrender in connection with the
murder of Ram Sanehi but he surrendered along with the 13 or 14 other accused
against whom Pooran Lal had filed a complaint. In so far as Shyam Narain is
concerned, the High Court is wrong in saying that he managed somehow to get
himself arrested. The evidence of Constable Virendra Singh shows that Shyam
Narain was arrested because he was crossing the railway lines and if he was not
caught, he would have been run over by the two trains coming from Kanpur and
Farrukhabad. This was hardly any sensible way of making an
"arrangement" for himself, as directed by Subhash. It is therefore
not as if the statement attributed to Subhash in the F.I.R. is corroborated by
subsequent events so as to afford a guarantee to Bal Kishore's presence at the
We are conscious that the Sessions Court and
the High Court have both held that the appellants committed the murder of Ram
Sanehi but the weight of the circumstances which we have discussed above is so
preponderating that even the concurrent finding cannot be allowed 594 to stand.
In any event, it seems to us impossible to hold that the prosecution has
established its case beyond a reasonable doubt.
We therefore allow this appeal, set aside the
order of conviction and sentence recorded by the High Court and the Sessions
Court and direct that the appellants shall be set at liberty.
M.R. Appeal allowed.