of U.P. Vs. Abdul & Ors  INSC 500 (5 May 1997)
JU D E
ME N T S.P. KURDUKAR, J.
village Tilokpur consists ofseveral hamlets, of which Kurtharais onewhere Abdul
Ali son ofMaikoo (A-1) was residing but lateron he shifted to village Tilokpur.
(A-2)was also residing at village Kurthara but thereafter shifted to villageTilokpur.
Vikram (A-3) and Ramanuj(A-4) are theresidents of village Kurthara. All these
four accused persons happened to be close friends of each other, ofwhom, Abdul
Ali (A-1)was the Pradhan of Tilokpur Gram Panchayat for about fifteen years
until he lost the election to the post of Pradhan toShanker Lal (since
deceased). At the timeof incident which took place on December 24, 1983,undisputedly Shanker Lal was the Pradhanwho
belonged to the opposite group. The accused and in particular Abdul Ali(A-1)
did not cherish the success of ShankerLal asthe Pradhan of village Tilokpur.
The victory of Shanker Lal as the Pradhan was celebrated by his supporters in
the village which addedan additional insult to theego ofA-1. Accordingto the
prosecution, these factorslead to the strained and inimical relations between
the two groups, one headed byA-1 andthe other by Shanker Lal.
alleged bythe prosecutionthat a year prior to the incident in question, A-1 andhis
associates has attempted to commit the murder of Shanker Lal, but he survived
and at the material time a criminal case under Section307 ofthe Indian Penal Codewas
pending against them. A case under Section 107 of the Criminal Procedure Code
was also pending against A-1.
According to the prosecution, a day beforethe incident in question, Shanker Lal
received a notice relating to the `No ConfidenceMotion'being moved against him.
It was allegedthat A-1 and his associates were instrumental in moving this `No
Confidence Motion'. Shankar Lal, therefore, on December 24, 1983 i.e. the date
of incident left his house at about7.30 a.m. along with his brother Mangal (PW
1) anduncle Chhote Lal (PW 2) and reached the house of DwarikaPrasad(DW 1)to
discuss about the `No Confidence Motion'. In the said meeting,it wasdecidedto
challenge the validity of the`No Confidence Motion' before an appropriate forum
and to obtain a stay order; forthat purpose, they were togo to Lucknow. Dwarika
Prasad (DW 1) told Shanker Lal and his associates to go aheadand he would join
after a short time. Accordingly, Shanker Lal, Mangal and Chhote Lalleft the
house of Dwarika Prasad andwhen they reached near thehouse of Dhanendra Jain,
A-1 armed with his double barrel gun, A-2 and A-3 armed with katta (country
made pistol) and A-4armed with banka suddenly appeared on the scene of offence
used filthy language against Shanker Lal. A-1then suddenly firedat Shanker Lal.
A-4 assaultedShankerwith banka whereas A-2 andA-3 fired fromtheir katta
(country made pistol). Shanker Lal on receivinga gun shot and other injuries
fell down and died at the spot. This incident happened at about 8.45a.m.. The soundof
firearms and the cries raisedby Mangal and Chhote Lal attracted the attention
of acoupleof persons includingMahadin and Mahabir. All the accused thereafter
(PW 1) dictated the report of the incident to his uncle Chhote Lal (PW 2) and
was signed by both of them.
carried the report to the police station Masauli, Distt. Barabanki and handed
it over to HC Sukhanta Ram (PW 3) whoprepared the FIR (Ex. Ka-2) and registered
thecase at about 1.00 p.m. Mohan LalPandey (PW 6), the SHO along with police
force reached the place of incident for necessary investigation. After drawing
up an inquest panchanama (Ex.Ka-5) on the dead body,it was sent forpost mortem
examination through constableJagdish Pandey and villageChowkidar Rahmat Ali.
Dr. Ram Mohan (PW 4) held the autopsyon thedead body on 25th December, 1983. Mohan Lal Pandey (PW 6) then
prepared several panchanamasand recorded the statementsof various witnesses.
During the course of investigation, Mohan Lal Pandeyreliably learntthat A-1 had
deposited his fire arm on December 24, 1983
at about9.30 a.m. in the shop of Waheb Ali. The said weapon came to be seized
under seizure panchanamaon 6th January,1984.
During the course of investigation, the accused person came to be arrested.
After completing the investigation,all thefour accusedwere put up for trial for
an offence punishable under Sections 302/34 of the Indian Penal Code for
committing the murder of Shanker Lal.
accused deniedthe allegation levelledagainstthem and pleaded that theyhave been
falsely implicated in the presentcrime out of enmity. They areinnocent and they
prosecution in support of its case principally relied upon the evidence of two
eye witnesses, namely, Mangal (PW 1) and Chhote Lal(PW 2)in addition to the
evidence of Dr. Ram Mohan, M.O. (PW 4) and panch witnesses and various panchanamas.
The accused in support of their defenceexamined Dwarika Prasad(DW 1).
IVth Addl. Session Judge, Barabanki,on appraisal of oral and documentary
evidence on record byhis judgment and order dated 31st August, 1988 convicted all thefour accusedpersons under Sections
302/34of theIndian Penal Code for committing the murder of Shanker Lal. The
trial judge awarded death sentence to AbdulAli (A-1) and made a reference under
Section 366 Cr.P.C. to the AllahabadHigh Court, Bench atLucknow. A-2 toA-4 were sentenced to suffer imprisonment for
life. The reference made by the trial court came tobe numbered being Capital
Sentence Reference No.3 of 1988. In the meantime, all the four accused persons
filed Criminal Appeal to the High Court challengingthe legality and correctness
of thejudgment and order of conviction and sentence passed against them.All
these criminal appeals along with aforesaid referencewere here together. TheHigh
Court, on reappraisal of evidence and other materials on record vide its judgement
dated Ist December,1988 allowed all the three appeals filed by the accused
persons, rejected the reference and acquitted each one of them of the chargeslevelled
against him. It is this judgment and order of acquittal passed by the HighCourt
which issought to be challenged by the State of U.P. in these criminal appeals.
these criminal appeals arise out of a common judgment, they are being disposedof
by this judgment.
the learned counsel for theparties and perusedthe oral evidence andother
material on record. We have also gone through the judgments ofthe courts below
and in ourconsidered view the impugned judgmentof theHigh Court is not only
erroneous on interpretation of Section 174 Cr.P.C.but itsuffers from serious
infirmity as regards appreciation ofevidence on record in proper perspective.
We are conscious that weare dealing with thejudgment of acquittal passed by theHigh
Court. Unless, we find that the impugned judgment is based on misconceptionof
law and erroneous appreciationof evidence onrecord, this Court would not
interfere with the judgment of acquittal. Wemay, therefore, point out how the findingsrecorded
by theHigh Court are unsustainable.
While disbelieving the correctness and reliability of the FIR, the High Court
heavily placed reliance upon the contents of the inquest panchanama (Panchayatnama)
prepared under Section174 of the CriminalProcedure Code and contrasted withthe
recitals inthe FIR. The High Courtheld that inthe inquest panchanama,it was recordedthat
Shanker Lal was shot dead by fire arm but it did not make any reference to the
fact that Shanker Lal was alsoassaulted by banks. The investigating officer has
failed to record any injury on the person of Shanker Lal having been caused by banka.
The HighCourt then observed as under:- "The primary purpose of holding and
inquest is to ascertain the cause ofdeath and to find out whether it is
homicidal, suicidal or accidental. Thelaw therefore, requires a PoliceOfficer
to make an investigation and prepare a report describingthe wounds and
indicating by what weapon such wounds appear to have been caused.
inquest report, though a document of limited scope and nature, can nevertheless
be utilised under section 145 of the Evidence Act.
pointed out earlier, in the instant case, the inquest report is silent asto the
use of banka. Why has the use ofbanka not been mentioned in the "Panchayatnama"
is a question which immediately crops upfor consideration in view of the
recitals in the F.I.R. mentioning in unambiguous words that the deceased was
also assaulted by banka which was wielded byRamanuj.
is the answer of the above question is the next question?" The High Court
then went on to observe:- "Once it has cometo the knowledge ofthe
investigating officer that the deceased had also been assaultedby banka which
was allegedlyused by one of the appellants, therewas nooccasion for him not to
mention the use of banka in the inquest report unless itcan beattributed to him
that he, from the verybeginning of the investigation attempted to screen out orshield
Ramanuj, but, according to the allegations in the FIR was armed with`banka'.
The interpretation of Section 174 of the Criminal Procedure Codesought to be
given bythe High Court is apparently contrary tothe law laid down by this Court
in (Suppl)S.C.R.84. Wemay usefully reproducethe relevant observations which are
as under:- "Another point taken by the learned Addl. Sessions Judge wasthat
in the inquest report details of the overt actscommitted by the various accused
have not been mentioned in the relevant column. The learned Judge in fact has
assumed without any legal justification that because the details were not
mentioned in the requisite column ofthe inquest report, therefore, the
presumption will be that the eye witnesses didnot mention the overt acts in
their statements before thepolice.To begin with it seems to us that the learned
AdditionalSessionJudge'sapproach islegally erroneous. A statement recorded by
the police during the investigation is notat all admissibleand theproper
procedure isto confront the witnesses with the contradictions when they are examinedand
they ask the Investigating Officer regarding those contradictions. Thisdoes not
appear tohave done in this case.
more, proceedings for inquest under Section 174 of the Code of Criminal
Procedure have a very limited scope." Itwas then observed:- "Aperusal
of this provision would clearly show that the object of the proceeding underSection
174 is merely to ascertain whether a person has died under suspicious
circumstances or an unnatural death and if so what is theapparent cause of the
death. Thequestion regarding the details as to how the deceased was assaultedor
who assaulted him or under what circumstance he was assaulted appears to us to
be foreign to the ambit andscope of the proceedings under Section 174. In these
circumstance, therefore, neither in practice nor in lawwas it necessary for thepoliceto
have mentionedthesedetails in the inquest report." Inview of thissettled
position of law, in our considered opinion, the very foundation of the judgment
of the High Courtis rendered unsustainable. The High Court disbelieved theevidence
of Mangal (PW 1) and Chhote Lal (PW 2) on the ground thattheir evidenceis inconsistentwith
the recitals in the inquest panchanama. The observations of the High Court in
this behalf are as under:- "It may becontended that according tothe
recitals in the FIR, the deceased had caught hod of the banka and, therefore,
there was no injury caused on the person of the deceased which could be
attributed tothe useof banka Banka,which is a heavy sharp cutting weapon, was inthe
hand of Ramanuj and he has attempted to givea blow on the person ofthe
deceased. Since the intention was to commit the murder, itcan bereasonably
inferred that the banka was used with considerable force. Ifin that situation
it was caught hold of by the deceased, serious wounds would have been caused on
the hand of the deceased. Such aninjuryhas not been noticed by the
Investigating Officer on theperson of the deceased which also wouldindicate
that Ramanuj was sought to be screened out from the scene of occurrence." Itis
this basicfoundation in the impugned judgment which has resultedinto erroneous
appreciation of prosecution evidence on record. We may briefly set out the reasonsfor
acquittal recorded in the impugned judgment, (1) the witnesses are close
relatives of Shanker Lal; (2) DwarikaPrasadalthough shownas a witness in the
charge sheet, was given up atthe trial; (3) if Shanker Lal was to go to Lucknow
for obtaining the stay order against the `No Confidence Motion', surely he
would have carried some money with him but in fact what was recovered from his
person was only 70 paise;(4) the incident took place in abusy locality but the
prosecution did not examine any personfrom he said locality; (5) Shanker Lal
was a history sheeter and involved in many crimes; thathe hadmany enemies in
the village and, therefore, thepossibility of assault on ShankerLal bysome
other persons other than the accused cannot be ruledout. The High Court then
observed:- "A person would go to Court speciallythe High Court after
having arranged for the money to meet the expensesinvolved in the institution
of the case. Three persons,namely, Shanker Lal (deceased), his brother Mangal
(PW 1)and uncle Chhote Lal (PW 2) were to go either to Barabanki or Lucknow, which would mean that apart from
litigation expenses, travelling and other sundry expenses for three people
should have beenwith the deceased. But the investigating officer recovered only
70 paise from the pocket of the deceased vide recovery memo (Ex. Ka-12) whichwas
sealed in an envelop (Ex.3)."
The abovereferred findings in our considered view are totallyunsustainable for
the followingreason:- Itis notand cannot be disputedthat Shanker Lal met with ahomicidal
death. Dr. Ram Mohan (PW 4) held the autopsyon thedead body of Shanker Lal andnoticed
the following injuries:- 1.Lacerated wouldon the left side ofneck 4 c.m. x
1/1.4 c.m. x muscle deep 2 c.m. above left collar bone.
shot would of entry3 c.m. x 3c.m. x chest cavity deep, circular in shapesurrounding
skin isblackened and hairs are signed.
situated onthe left side of chest. 3 c.m. is above and lateral tothe left
nipple. Margins are inverted.
short wound of entry on the right side of abdomen 2 c.m. x 1/1.2 c.m. x abd. cavity
deep 3 c.m. right to the umblcus Margins are inverted surroundingskin is
blackened and hairs are signed.
wound on the point of right thumb on the pulp 1 c.m. x 0.4 c.m. xmuscle deep.
shot would of exit on the right side of lower back (limber area) 5 c.m. x 3 c.m.
x abd. cavity deep. Margins are inverted. The wound is corresponding with
on the rightscapular region 1 c.m. x 1 c.m. in size.
sub-cutaneous swelling 1 c.m. x 1 c.m. onthe left side of chest 5 c.m. below
and lateral to the left nipple. Some rounded foreign body isfelt under the
Medical Officer opined that the causeof death was shock and haemorrhage as a
result of fire arm injuries. We, therefore, unhesitatingly conclude thatShankerLal
metwith a homicidal death.
Coming tothe culpabilityof the accused persons, the evidence of two eye
witnesses, namely, Mangal (PW 1) and Chhote Lal (PW2) in our opinion is totally
unblemished and can besafely accepted as credible one. Mangal is the brotherof Shanker
Lal. He has statedthat onDecember 24, 1983, he alongwith Shanker lal and Chhote
Lal (PW 2)left the house at 7.30 a.m. and
went to the house of Dwarika Prasad (DW 1) to discuss about the `No Confidence
copy of the notice of `NoConfidence Motion' was being carriedby Shanker Lal. Aftera
briefhalt atthe house of DwarikaPrasad (DW 1), they left his house in order to
go to Lucknowfor taking appropriate legal proceeding and to obtain a stay
order. When they reached nearthe house of Dhanendra Jain, all the four accused appearedon
the scene of offence. A-1was armed with double barrel gun, A-2 and A- 3 werearmed
with katta and A-4 was armed with banka. A-4 uttereda few abusivewords and
immediately thereafter A-1 fired at Shanker Lal.A-2 and A-3 also fired from
their katta causing bullet injuries to Shanker Lal. A-4 assaulted with banka. Theincident
took place at out 8.45a.m. and the First Information Report
came to be lodged at Masauli police stationat about 1.00p.m. The FIR lodged by Mangal (PW 1) in allmaterial particulars
corroborated his evidence. All necessary details about the assault includingthe
role and weapon used byeach accused persons has been referred to in the FIR. Mangal
(PW 1)then stated that his brother Shanker Lal died on the spot. The witness
was although cross- examined at agreat length but here is absolutely no
material brought out during the cross-examinedto discredit his testimony. We,
therefore, see no hesitationin accepting the evidence of Mangal (PW 1) as
credible one. Chhote Lal (PW 2), the uncle of ShankerLal again corroborated the
evidence of Mangal (PW 1) in all material particulars and he narrated the
entire story in the samesequence without any omission or mistake. In addition
to the above evidence, Chhote Lal (PW2) hasstated that he was carrying with him
Rs. 1400/- to Rs. 1500/- for court expenses. There issome inconsistency as regards
who was carrying the said money but in ouropinionthe said inconsistency does notdemolish
the substratum of the prosecutioncase. It is also relevant to not that during
the inquest panchanama, a notice of `No Confidence Motion' wasrecovered from
the person of Shanker Lal. This is an independent circumstance whichspeaks
about the truthfulness of the prosecution case thatShankerLal, Mangal (PW 1)
and Chhote Lal(PW 2) then decided to go to the Court to obtain the stay order
against the `No Confidence Motion'. There is no serious challenge to the
evidence of Mangal (PW 1) and ChhoteLal (PW2) thatthey were going along withShankerLal
to Lucknow.The presence of both these witnesses, therefore, cannot be doubted.
If this be so, in our opinion, the High Court had committed a seriouserror in
not appreciating the evidenceof these two eye witnesses in a proper perspective
and had erroneously discarded the prosecution story on a erroneous
interpretation of Section 174 Cr.P.C. We are, therefore, of the consideredview
that the judgmentof the High Court is totallyunsustainable and needsto be set
conviction of all the four accused personsunder Section 302/34 of the Indian
Penal Code, the trial court awarded a capital punishment to Abdul Ali (A-1) and
imprisonment for life to A-2 to A-4 videits judgment and order dated 31st August, 1988 and made aReference to the High
Court. The High Court, however, rejected the reference; allowed thecriminal
appeals filed by thefour accusedpersons and acquittedeach one of them vide its
order dated IstDecember, 1988.Presentappeal were filed in 1990 and they are
being disposed of in April,1997. Having regard to the passage of time,we do not
thinkit proper to confirmthe death sentence awarded to Abdul Ali(A-1) by the IVth
Addl. Session Judge. We reject thereference. We uphold the convictionof A-1to
A-4under Section 302/34 of the Indian Penal Code andSentence each of the
accused persons to suffer imprisonment for life.
For the aforesaidconclusion, the appealfiled by the State of U.P. is allowed. the judgment and order of acquittal
dated December 1, 1988 passed by the High Court are setaside and the judgment
and order of conviction dated 31st August, 1988 passed by the trial court
against accused A-1 toA-4 under Section 302/34 of the Indian PenalCode are
restored. However,the death sentence awarded by the IVth Addl. Session Judge Barabanki
to Abdul Ali (A-1) is commuted to imprisonment of life. Capital Sentence
Reference No. 3 of 1988 is rejected. A-1to A-4 who are on bail shall surrender
to their bailbonds forthwith to serve out the sentences.