U.P. Vs. Abdul & Ors  INSC 505
(5 May 1997)
MUKHERJEE, S.P. KURDUKAR
J U D
E M E N T S.P. KURDUKAR, J.
village Tilokpur consists of several hamlets, of which Kurthara is one where Adbul
Ali son of Maikoo (A-1) was residing but lateron he shifted to village Tilokpur.
(A-2) was also residing at village Kurthara but thereafter shifted to village Tilokpur.
Vikram (A-3) and Ramanuj (A-4) are the residents of village Kurthara. All these
four accused persons happened to be close friends of each other, of whom, 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 to Shanker Lal (since
deceased). At the time of incident which took place on December 24, 1983, undisputedly Shanker Lal was the Pradhan
who belonged to the opposite group. The accused and in particular Adbul Ali
(A-1) did not cherish the success of Shanker Lal as the Pradhan of village Tilokpur.
The victory of Shanker Lal as the Pradhan was celebrated by his supporters in
the village which added an additional insult to the ego of A-1. According to
the prosecution, these factors lead to the strained and inimical relations
between the two groups, one headed by A-1 and the other by Shanker Lal.
is alleged by the prosecution that a year prior to the incident in question,
A-1 and his associates has attempted to commit the murder of Shanker Lal, but
he survived and at the material time a criminal case under Section 307 of the
Indian Penal Code was 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 before the incident in question, Shanker Lal
received a notice relating to the `No Confidence Motion' being moved against
him. It was alleged that 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 about 7.30 a.m. along with his brother Mangal
(PW 1) and uncle Chhote Lal (PW 2) and reached the house of Dwarika Prasad (DW
1) to discuss about the `No Confidence Motion'. In the said meeting, it was
decided to challenge the validity of the `No Confidence Motion' before an
appropriate forum and to obtain a stay order; for that purpose, they were to go
to Lucknow. Dwarika Prasad (DW 1) told Shanker
Lal and his associates to go ahead and he would join after a short time.
Accordingly, Shanker Lal, Mangal and Chhote Lal left the house of Dwarika
Prasad and when they reached near the house of Dhanendra Jain, A-1 armed with
his double barrel gun, A-2 and A-3 armed with katta (country made pistol) and
A-4 armed with banka suddenly appeared on the scene of offence and encircled Shanker
filthy language against Shanker Lal. A-1 then suddenly fired at Shanker Lal.
A-4 assaulted Shanker with banka whereas A-2 and A-3 fired from their katta
(country made pistol). Shanker Lal on receiving a gun shot and other injuries
fell down and died at the spot. This incident happened at about 8.45 a.m.. The sound of fire arms and the cries raised by Mangal
and Chhote Lal attracted the attention of a couple of persons including Mahadin
and Mahabir. All the accused thereafter fled away.
(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) who prepared the FIR (Ex.Ka-2) and registered
the case at about 1.00 p.m. Mohan Lal Pandey (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 for post
mortem examination through constable Jagdish Pandey and village Chowkidar Rahmat
Ali. Dr. Ram Mohan (PW 4) held the autopsy on the dead body on 25th December, 1983. Mohan Lal Pandey (PW 6) then
prepared several panchanamas and recorded the statements of various witnesses.
During the course of investigation, Mohan Lal Pandey reliably learnt that A-1
had deposited his fire arm on December 24, 1983
at about 9.30 a.m. in the shop of Waheb Ali. The said
weapon came to be seized under seizure panchanama on 6th January, 1984. During the course of
investigation, the accused person came to be arrested. After completing the
investigation, all the four accused were 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 denied the allegation levelled against them and pleaded that they have
been falsely implicated in the present crime out of enmity. They are innocent
and they be acquitted.
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 defence examined Dwarika Prasad (DW 1).
IVth Addl. Session Judge, Barabanki, on appraisal of oral and documentary
evidence on record by his judgment and order dated 31st August, 1988 convicted
all the four accused persons under Sections 302/34 of the Indian Penal Code for
committing the murder of Shanker Lal. The trial judge awarded death sentence to
Abdul Ali (A-1) and made a reference under Section 366 Cr.P.C. to the Allahabad
High Court, Bench at Lucknow. A-2 to A-4 were sentenced to
suffer imprisonment for life. The reference made by the trial court came to be
numbered being Capital Sentence Reference No.3 of 1988. In the meantime, all
the four accused persons filed Criminal Appeal to the High Court challenging
the legality and correctness of the judgment and order of conviction and
sentence passed against them. All these criminal appeals along with aforesaid
reference were here together. The High 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 charges levelled against him. It is this
judgment and order of acquittal passed by the High Court which is sought to be
challenged by the State of U.P. in these
these criminal appeals arise out of a common judgment, they are being disposed
of by this judgment.
heard the learned counsel for the parties and perused the oral evidence and
other material on record. We have also gone through the judgments of the courts
below and in our considered view the impugned judgment of the High Court is not
only erroneous on interpretation of Section 174 Cr.P.C. but it suffers from
serious infirmity as regards appreciation of evidence on record in proper perspective.
We are conscious that we are dealing with the judgment of acquittal passed by
the High Court. Unless, we find that the impugned judgment is based on
misconception of law and erroneous appreciation of evidence on record, this
Court would not interfere with the judgment of acquittal. We may, therefore,
point out how the findings recorded by the High 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 Section 174 of the Criminal Procedure Code and contrasted with
the recitals in the FIR. The High Court held that in the inquest panchanama, it
was recorded that Shanker Lal was shot dead by fire arm but it did not make any
reference to the fact that Shanker Lal was also assaulted by banks. The
investigating officer has failed to record any injury on the person of Shanker Lal
having been caused by bank. The High Court then observed as under:- "The
primary purpose of holding and inquest is to ascertain the cause of death and
to find out whether it is homicidal, suicidal or accidental. The law therefore,
requires a Police Officer to make an investigation and prepare a report
describing the wounds and indicating by what weapon such wounds appear to have
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 as to
the use of banka. Why has the use of banka not been mentioned in the "Panchayatnama"
is a question which immediately crops up for 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 by Ramanuj.
is the answer of the above question is the next question?" The High Court
then went on to observe:- "Once it has come to the knowledge of the
investigating officer that the deceased had also been assaulted by banka which
was allegedly used by one of the appellants, there was no occasion for him not
to mention the use of banka in the inquest report unless it can be attributed
to him that he, from the very beginning of the investigation attempted to screen
out or shield Ramanuj, but, according to the allegations in the FIR was armed
The interpretation of Section 174 of the Criminal Procedure Code sought to be
given by the High Court is apparently contrary to the law laid down by this Court
in (Suppl) S.C.R. 84. We may usefully reproduce the relevant observations which
are as under :- "Another point taken by the learned Addl. Sessions Judge
was that in the inquest report details of the overt acts committed 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 of the inquest report,
therefore, the presumption will be that the eye witnesses did not mention the
overt acts in their statements before the police. To begin with it seems to us
that the learned Additional Session Judge's approach is legally erroneous. A
statement recorded by the police during the investigation is not at all admissible
and the proper procedure is to confront the witnesses with the contradictions
when they are examined and they ask the Investigation Officer regarding those
contradictions. This does not appear to have done in this case.
more, proceedings for inquest under Section 174 of the Code of Criminal
Procedure have a very limited scope." It was then observed:- "A
perusal of this provision would clearly show that the object of the proceeding
under Section 174 is merely to ascertain whether a person has died under
suspicious circumstances or an unnatural death and if so what is the apparent
cause of the death. The question regarding the details as to how the deceased
was assaulted or who assaulted him or under what circumstance he was assaulted
appears to us to be foreign to the ambit and scope of the proceedings under
Section 174. In these circumstance, therefore, neither in practice nor in law
was it necessary for the police to have mentioned these details in the inquest
report." In view of this settled position of law, in our considered
opinion, the very foundation of the judgment of the High Court is rendered
unsustainable. The High Court disbelieved the evidence of Mangal (PW 1) and Chhote
Lal (PW 2) on the ground that their evidence is inconsistent with the recitals
in the inquest panchanama. The observations of the High Court in this behalf
are as under:- "It may be contended that according to the 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 to the
use of banka Banka, which is a heavy sharp cutting weapon, was in the hand of Ramanuj
and he has attempted to give a blow on the person of the deceased. Since the
intention was to commit the murder, it can be reasonably inferred that the banka
was used with considerable force. If in that situation it was caught hold of by
the deceased, serious wounds would have been caused on the hand of the
deceased. Such an injury has not been noticed by the Investigating Officer on
the person of the deceased which also would indicate that Ramanuj was sought to
be screened out from the scene of occurrence." It is this basic foundation
in the impugned judgment which has resulted into erroneous appreciation of prosecution
evidence on record. We may briefly set out the reasons for acquittal recorded
in the impugned judgment, (1) the witnesses are close relatives of Shanker Lal;
(2) Dwarika Prasad although shown as a witness in the charge sheet, was given
up at the 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 a busy locality but the prosecution did not
examine any person from he said locality; (5) Shanker Lal was a history sheeter
and involved in many crimes; that he had many enemies in the village and,
therefore, the possibility of assault on Shanker Lal by some other persons
other than the accused cannot be ruled out. The High Court then observed:-
"A person would go to Court specially the High Court after having arranged
for the money to meet the expenses involved 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 been with the deceased. But the investigating officer recovered
only 70 paise from the pocket of the deceased vide recovery memo (Ex.Ka-12)
which was sealed in an envelop (Ex.3)."
The above referred findings in our considered view are totally unsustainable
for the following reason:- It is not and cannot be disputed that Shanker Lal
met with a homicidal death. Dr. Ram Mohan (PW 4) held the autopsy on the dead
body of Shanker Lal and noticed the following injuries:-
Lacerated would on the left side of neck 4 c.m. x 1/1.4 c.m. x muscle deep 2 c.m.
above left collar bone.
shot would of entry 3 c.m. x 3 c.m. x chest cavity deep, circular in shape
surrounding skin is blackened and hairs are signed.
would is situated on the left side of chest. 3 c.m. is above and lateral to the
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 surrounding skin is
blackened and hairs are signed.
Incised wound on the point of right thumb on the pulp 1 c.m. x 0.4 c.m. x
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
Contusion on the right scapular region 1 c.m. x 1 c.m. in size.
sub-cutaneous swelling 1 c.m. x 1 c.m. on the left side of chest 5 c.m. below
and lateral to the left nipple. Some rounded foreign body is felt under the
Officer opined that the cause of death was shock and haemorrhage as a result of
fire arm injuries. We, therefore, unhesitatingly conclude that Shanker Lal met
with a homicidal death.
Coming to the culpability of the accused persons, the evidence of two eye
witnesses, namely, Mangal (PW 1) and Chhote Lal (PW 2) in our opinion is
totally unblemished and can be safely accepted as credible one. Mangal is the
brother of Shanker Lal. He has stated that on December 24, 1983, he along with 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 Motion'.
copy of the notice of `No Confidence Motion' was being carried by Shanker Lal.
After a brief halt at the house of Dwarika Prasad (DW 1), they left his house
in order to go to Lucknow for taking appropriate legal
proceeding and to obtain a stay order. When they reached near the house of Dhanendra
Jain, all the four accused appeared on the scene of offence. A-1 was armed with
double barrel gun, A-2 and A- 3 were armed with katta and A-4 was armed with banka.
A-4 uttered a few abusive words 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. The incident took place at out 8.45 a.m. and the First Information Report came to be lodged
at Masauli police station at about 1.00 p.m. The FIR lodged by Mangal (PW 1) in all material particulars
corroborated his evidence. All necessary details about the assault including
the role and weapon used by each 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 a great length but here is
absolutely no material brought out during the cross-examined to discredit his
testimony. We, therefore, see no hesitation in accepting the evidence of Mangal
(PW 1) as credible one. Chhote Lal (PW 2), the uncle of Shanker Lal again
corroborated the evidence of Mangal (PW 1) in all material particulars and he
narrated the entire story in the same sequence without any omission or mistake.
In addition to the above evidence, Chhote Lal (PW 2) has stated that he was
carrying with him Rs. 1400/- to Rs. 1500/- for court expenses. There is some
inconsistency as regards who was carrying the said money but in our opinion the
said inconsistency does not demolish the substratum of the prosecution case. It
is also relevant to not that during the inquest panchanama, a notice of `No
Confidence Motion' was recovered from the person of Shanker Lal. This is an
independent circumstance which speaks about the truthfulness of the prosecution
case that Shanker Lal, 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 Chhote Lal (PW 2)
that they were going along with Shanker Lal 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 serious
error in not appreciating the evidence of 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 considered view
that the judgment of the High Court is totally unsustainable and needs to be
Consequent upon conviction of all the four accused persons under 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 vide its judgment and order
dated 31st August, 1988 and made a Reference to the High Court. The High Court,
however, rejected the reference; allowed the criminal appeals filed by the four
accused persons and acquitted each one of them vide its order dated Ist
December, 1988. Present appeal were filed in 1990 and they are being disposed
of in April, 1997. Having regard to the passage of time, we do not think it
proper to confirm the death sentence awarded to Abdul Ali (A-1) by the IVth
Addl. Session Judge. We reject the reference. We uphold the conviction of A-1
to A-4 under Section 302/34 of the Indian Penal Code and Sentence each of the
accused persons to suffer imprisonment for life.
For the aforesaid conclusion, the appeal filed by the State of U.P. is allowed. the judgment and order of acquittal
dated December 1, 1988 passed by the High Court are set aside and the judgment
and order of conviction dated 31st August, 1988 passed by the trial court
against accused A-1 to A-4 under Section 302/34 of the Indian Penal Code 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-1 to A-4 who are on bail shall surrender
to their bailbonds forthwith to serve out the sentences.