of Uttar Pradesh Vs. Devendra Singh  Insc 269
(13 April 2004)
Raju & Arijit Pasayat
O R D
E R ARIJIT PASAYAT,J
State of Uttar Pradesh in this appeal questioned the legality of the judgment
rendered by Division Bench of the Allahabad High Court which set aside the
conviction of the accused-respondent under Sections 302, 376 and 201 of the
Indian Penal Code 1860 (in short 'IPC). The Trial Court had found the accused
guilty and sentenced him to imprisonment for life for the first offence, and
seven years and five years for the other two offences respectively. High Court,
in appeal, reversed the judgment of the Trial Court and directed acquittal.
facts as projected by the prosecution are as follows:
Brij Lal (PW-1) was father of the deceased aged about 10 years. On 26.12.1978,
at about noon, the deceased went to the 'Kolhu'
of Rajendra Singh father of the accused, in order to chew sugarcane. She was
seen chewing the sugarcane at the 'Kolhu' by the witnesses. She, however, did
not return home. The complainant (PW-1) searched for her, but she could not be
found. He was told by the witnesses that deceased was seen chewing sugarcane at
the 'Kohlu' of the accused and later on she was seen going with the accused towards
his sugarcane field. The complainant and some other witnesses went the next day
to the sugarcane field of accused Devendra Singh in order to search for the
deceased in the said field. The accused did not permit the complainant to have
a look at the said sugarcane field. Thereafter, the complainant took the 'pardhan'
of the village with him as well as other persons and all of them searched for
the deceased in the sugarcane field of the accused. During the search, some
portion of the field towards the south was found to be freshly dug. The
complainant and others dug the said place and the dead body of the deceased was
found buried there. The complainant asked the other persons present there to
have a watch over the dead body and he himself went to the police station to
lodge the report. The complainant lodged the report at P.S. Bilgram at 7.10 p.m. on 27.12.1978. On the basis of the information,
investigation was undertaken. On completion of investigation charge sheet was
placed. The accused persons pleaded innocence and faced trial.
examined primarily three witnesses to substantiate its accusations. They are PWs
2 and 3 who claimed to have seen the accused in the company of the deceased
just prior to the occurrence, and PW-4 who claimed to be an eyewitness. He
stated to have seen the accused throttling the deceased. The High Court found
that the evidence of PW-4 did not inspire confidence.
conduct was unnatural. It was accepted that he had not disclosed about his
having seen the occurrence for about three days. The High Court also noticed
that the said witness at one place had admitted that he had not seen the
occurrence but during his examination later on the next day again stated that
he had seen the occurrence. In this background the witness was held to be
unreliable. High Court held that there was no other material to link the
accused with the alleged crime.
support of the appeal, learned counsel for the appellant submitted that the
approach of the High Court is clearly erroneous. Merely because PW-4 who was at
the relevant time about 16 years of age, and has given reasons as to why he did
not disclose having seen the throttling for about three days that should not
have been held sufficient to wipe out his credible evidence.
an illiterate boy belonging to a very backward place and was a farm labourer.
Therefore, the High Court should not have held that his conduct was not
pointed out that there is no record to show that he had admitted not to have
seen the occurrence. It appears to be an error of record. Further the evidence
of PWs 2 and 3 and the fact that the dead body was found in the field of the
accused, who prevented people to go into the field initially are circumstances
which unerringly pointed to the guilt of the accused. The medical evidence
clearly established that the victim was raped and murdered.
response, Mr. Ranjan Muherjee, learned amicus curiae urged that the High Court
has rightly discarded the evidence of PW-4, finding his conduct to be unnatural.
Though the record does not show it, on the first day of examination, PW-4 had
stated not to have seen the occurrence. The statement on the next day, shows
that in all probabilities he had said so. If evidence of PW-4 is kept out of
consideration, evidence of others who claimed to have seen the accused in the
company of the deceased prior to the incident is of no consequence. The High
Court's view is reasonable since the appeal is against the judgment of
view of the rival submissions it has to be first seen whether prosecution has
established its case.
speaking, the case is not of circumstantial evidence. Human behavior varies
from person to person.
people behave and react differently in different situations. Human behaviour
depends upon the facts and circumstances of each given case. How a person would
react and behave in a particular situation can never be predicted. Every person
who witnesses a serious crime reacts in his own way. Some are stunned, become
speechless and stand rooted to the spot. Some become hysteric and start
wailing. Some start shouting for help. Others run away to keep themselves as
far removed from the spot as possible. Yet others rush to the rescue of the
victim, even going to the extent of counter-attacking the assailants. Some may
remain tightlipped overawed either on account of the antecedents of the
assailant or threats given by him.
one reacts in his special way even in similar circumstances, leave alone, the
varying nature depending upon variety of circumstances. There is no set rule of
natural reaction. To discard the evidence of a witness on the ground that he
did not react in any particular manner is to appreciate evidence in a wholly
unrealistic and unimaginative way. (See Rana Partap and Ors. v. State of Haryana 1983 (3) SCC 327).
rightly noted by the Trial Court, the witness was a young lad and according to
his testimony the accused was a hardened criminal with records of violence. It
is his evidence that he was threatened by the accused, therefore, his silence
in not telling others for the some time cannot, in the circumstances of the
case, be held to be suspicious and unnatural.
the High Court erred in observing that he had stated during examination about
his having not seen the occurrence and later on clarifying that he did so
because of threats given by the accused. PW-4 nowhere stated of his having not
seen the occurrence. The High Court also committed another error in holding
that the witness refused to be cross-examined. This fact is also not borne out
from the record.
with the evidence of PW-4, the evidence of PWs 2 and 3 who claimed to have seen
the deceased and the accused shortly before the occurrence is of significance.
Even if the High Court kept out of consideration PW-4's evidence, the last seen
theory was a factor which was not duly considered by the High Court. The dead
body was found in the field of the accused and evidence on record also shows
that the accused initially prevented PW-1 and others from searching his field,
but after lot of persuasions he permitted the persons searching for the dead
body to go to his field and in fact the dead body was recovered therefrom. The
said solid circumstance is sufficient, coupled with the initial repulsion
exhibited by the accused to substantiate the guilt of the accused.
evidence on record leads to the inevitable conclusion that the accused was
responsible for the rape and murder of the victim. Though the judgment under
challenge is one of acquittal, in view of the patently perverse conclusions
arrived at by the High Court, the same is indefensible and is set aside. The
conviction as recorded by the Trial Court and the sentences imposed are
restored. Accused shall surrender to custody forthwith to serve the sentence
imposed by the Trial Court.
record our appreciations for the fair and able manner in which Mr. Ranjan Mukherjee,
learned Amicus Curiae argued the case.