of U.P. Vs. Nawab Singh (Dead) & Ors
 Insc 62 (3
Sabharwal & S.B. Sinha. S.B. Sinha, J:
judgment of acquittal rendered by the High Court of Judicature at Allahabad is in question in this appeal at
the instance of the State of U.P.
three respondents herein were charged for commission of an offence under
Section 302/34 of the Indian Penal Code for causing death of one Sri Ram on
10/11.6.1978 at about 2.00
prosecution case, as appearing from the First Information Report, is that the
respondents together with one Ram Prakash (who is absconding) came to the house
of deceased about 2.00
a.m. in the night. The
house of the deceased was a small one with a very small courtyard. At the time
of occurrence, there were five inmates in the house. Amrit Lal then aged about
12 years, son of the deceased and the first informant Ram Ratan aged 20 years,
brother-in-law of the deceased were sleeping on one cot. Km. Kanth Shri, the
unmarried sister of the deceased was sleeping on another cot. Renuka Devi, wife
of the deceased together with her 15 day's old baby was sleeping on the third
cot in the open courtyard of the house. The deceased was sleeping on another
cot in the courtyard under a shed (chhappar) near the doors of the room and the
kitchen. The house of Sri Ram had no shutter opening on the side of the lane.
An opening in the wall existed for coming out of the house in the lane. As Renuka
Devi gave birth to a child only a few days back, a lantern was burning.
accused persons at 2.00
a.m. on 10.6.1978
trespassed into the house. Ram Prakash and Natthu were said to have been armed
with pistols whereas Nawab and Peshkar were said to have been armed with lathis.
The parties were said to be in inimical terms.
contended that the accused persons were history sheeters. They were involved in
two murder cases. The deceased Sri Ram was a witness in one of them. He had
constantly been pressurized not to depose in that case by the accused persons.
Ram Prakash together with the other accused persons upon entering the courtyard
of the house gave a threat to the deceased that he would be killed if he
deposed in the case of murder of Kedar. The deceased is said to be awaken at
that time and allegedly replied that he would make the same statement in the
court which he had made before the investigating officer. Hearing the
conversation, the other inmates of the house awoke. Ram Prakash is said to have
fired his pistol at Sri Ram causing an abrasion on the left side back middle whereafter
respondent No. 2 Natthu fired a pistol shot at Sri Ram which hit the deceased
on the left side of the abdomen 21 cm. below the left nipple. As a result of
the injuries suffered thereby Sri Ram is said to have died. Renuka Devi and Ram
Ratan cried out for help whereupon they were also threatened. The entire
incident took about 2-3 minutes whereafter the accused persons left the place
of occurrence. The accused persons are said to have thereafter gone near the tubewell
of the Het Ram Pradhan where he and his brothers Har Nagar and Pati Ram were
sleeping on the roof of the kothri of the tubewell where an electric bulb of
250 watt was burning. Hearing the sound of firing, the said persons were also
said to have been seen by them. It is alleged that Ram Prakash and Natthu
shouted at Pradhan Het Ram stating that they had killed Sri Ram and if he dared
to depose in the case of murder of Kedar, he would also be put to death in the
same manner. Fearing assault at the hands of the accused and as they, being not
armed, did not come down from the rooftop.
about 5.00 a.m., however, they are said to have
gone near the village 'abadi' which is situated at about one and a half
furlongs. They came to the place of occurrence and found the dead body of Sri
Ram lying on the cot under the Chhapper. Ram Ratan prepared a written report
which was written by one Har Nagar Singh whereafter the duo left the village on
bicycle at 5.30 a.m. The police station is said to be at
a distance of 2 and = miles from the village.
Nagar Singh awaited outside the police station, Ram Ratan took the written
report to the police station and a formal First Information Report was lodged
on the basis thereof. Upon completion of investigation, a chargesheet was
submitted. Whereas Nawab Singh could be arrested in the evening of 11.6.1978,
the other accused persons were not found in the village. As noticed
hereinbefore, Ram Prakash could not be arrested so far.
support of the prosecution case, nine witnesses were examined out of whom PW 1 Renuka
Devi, PW 3 Ram Ratan and PW 5 Amril Lal were eye witnesses. The prosecution
also examined Har Nagar Singh (PW 4) to show that the accused persons Natthu,
his father Nawab Singh and Peshkar belonged to the party of the accused Ram Prakash
who was charged for alleged commission of murder of Kedar.
learned Sessions Judge having regard to the statements of the respondents under
Section 313 of the Code of Criminal Procedure came to the conclusion that it
stands accepted that there had been 'party feelings' in the village. The
learned Sessions Judge, placing reliance upon the eye witnesses, the medical
evidence as also existence of motive on the part of the respondents to commit
the crime, came to the conclusion that they along with Ram Prakash had a common
intention to cause the murder of Sri Ram. Having regard to the fact that the
death of the deceased was caused by Natthu, he was found guilty of commission
of the offence punishable under Section 302 of the Indian Penal Code, whereas
the others were found guilty of the offence under Section 302/34 of the Indian
Penal Code. Upon hearing the accused persons on the question of sentence in
terms of Section 235(2) of the Code of Criminal Procedure, the respondents were
awarded sentence of life imprisonment.
arriving at the aforementioned findings, the learned Sessions Judge relied upon
the evidence of the eye witnesses. The learned Sessions Judge rejected the
submissions of the respondents to the effect that Ram Ratan was not an eye witness
inter alia on the ground that had he not been present it would not have been
possible to come to the area police station at 6.00 a.m. having regard to the
fact that his house is situated about 20 miles away. The learned Sessions Judge
also rejected the contention of the respondents that as the crime number was
not mentioned in the Fard Ex. K-2, the prosecution case should not be believed,
on the ground that the same was an inadvertent act on the part of the
investigating officer. He also relied upon the evidence of Shambu Dayal PW 2
who was a witness to the Fards. So far the contention of the respondents, that
the deceased might have been murdered elsewhere and his dead body has been
brought to the house is concerned, the same was rejected on the ground that
admittedly at the time of his death the deceased was wearing only an underwear
and had kept his baniyan separately on the cot by his side which was sufficient
to prove that he had been lying on the cot inside the house when he was
appeal against the aforementioned judgment and conviction was heard by a
Division Bench of the Allahabad High Court. The Division Bench surprisingly
without finding fault with the reasoning of the learned Sessions Judge came to
the conclusion that it was a case of 'hit and run' during night hours and
actual incidence was not witnessed by any one mainly on a mistaken belief that
the deceased suffered only one gun-shot injury.
findings of the Division Bench of the High Court which are as under:
hearing the learned counsel for the appellants Sri S.S. Tewari and learned
Addl. Government Advocate and perusing the record, we do not feel inclined to
accept the prosecution version, as stated. The manner in which the shooting is
said to have been done by the accused persons, do not inspire confidence in
view of the contradictory and varying statements of the eye witnesses. The
medical report and the nature of injury on the person of the deceased do not
find corroboration from the ocular evidence. The explanation of the witnesses
about the injury on the back of the deceased is not at all convincing and
believable. The injury over the abdominal region with scorching around the area
and the direction of the bullet travelling upward from the abdomen indicates
that the person was hit, while he was sleeping in lying posture. It is also not
acceptable that the accused persons before actually hitting the deceased, would
raise such alarm, so that witnesses may become available by awaking them. If
the intention of the accused persons was to kill the victim, so that he may not
appear as a witness, in the other case pending against them, there was no
necessity of accosting and challenging the deceased at the mid of the night.
could have easily fired and escaped. It appears that it was a case of hit and
run during night hours and actually incident was not witnessed by any one. The
accused persons were implicated in the case on account of enmity and suspicion,
and are thus entitled for the benefit of doubt." Mr. C.D. Singh, learned
counsel appearing on behalf of the appellant would submit that the High Court
committed a serious error in passing the impugned judgment having failed to
take into consideration that:
There had been a motive of commission of crime.
had been no delay in lodging the First Information Report.
The medical report fully supported the prosecution case and no contradiction in
material particulars have been pointed out in the deposition of the prosecution
There had been no reason for false implication of the accused persons.
There was no reason for the eye witnesses to depose falsely.
Jain, learned counsel appearing on behalf of the respondents, on the other
hand, would submit that the medical evidence does not support the prosecution
story inasmuch as the deceased died out of only one gun-shot injury. The
learned counsel would contend that Ram Prakash having been absconding and Nawab
Singh having since died and no overt act on the part of the other respondents
as regard the commission of the murder having been alleged, the judgment of
acquittal should not be interfered with.
learned counsel would submit that admittedly the night was dark and the
deceased was sleeping on a cot in the courtyard and as such it was improbable
for the eye witnesses to identify the two respondents.
pointed out that the story of chasing the accused by Renuka Devi had been
contradicted by Ram Ratan.
learned counsel furthermore pointed out that whereas Renuka Devi stated that
the accused persons were chased upto 1 furlong, Ram Ratan categorically stated
that he had not chased the accused but they ran away towards the West after
going out of the deceased's house.
Jain would further draw our attention to the post mortem report and submit that
that the medical evidence does not corroborate the ocular evidence. The learned
counsel would further submit that the deceased having been sleeping in the
courtyard, it is not possible to see the accused persons from inside the room.
pointed out that the Fard Ex. K-2 did not mention the crime number which also
throws a suspicion as regard the time when the Fard was recorded.
OF THE EVIDENCE:
regard to the unsatisfactory nature of the judgment passed by the High Court,
we have gone through the record of the case.
Devi, wife of the deceased in her deposition supported the prosecution case
fully. She categorically disclosed the reason as to why the lantern used to
burn regularly at the same place. She further deposed that both Nawab and Peshkar
who had lathis in their hands were standing just outside the house and were
visible from the courtyard. In cross-examination she had also disclosed that Natthu
was an accused in the case of Kedar in which case her husband was a witness.
She further stated that her husband was threatened not to depose in the said
case earlier also.
statement that Ram Prakash was standing only 4-5 hands away from the cot where
her husband was lying when he had been fired; whereas Natthu was only 2-3 hands
therefrom, when he fired his shot, is categorical. She further stated that she
ran upto the accused when the shots were fired.
statement to the effect that she had gone out of the house chasing the accused upto
one furlong may be incorrect as no such statement appears to have been made
before the investigating officer but that, in our opinion, is of no moment.
Such an omission does not disprove the prosecution case. No other infirmity in
her deposition has been pointed out nor do we find any.
Ram Ratan also fully supported the case of the prosecution. The only
discrepancy which has been pointed out by Mr. Jain is that whereas he had
spoken about the giving a slap on the cheek of the deceased by one of the
accused, no other witness stated so. Again such minor discrepancy is of not
much significance when his presence in the house at the time when the
occurrence took place is beyond any doubt. The contention of Mr. Jain to the
effect that there is no reason as to why he should have been present in the
house of the deceased on the date has rightly been rejected by the learned
Sessions Judge inasmuch as it was impossible for a person to be present in the
police station in the early morning of the following day, as he could not have
been communicated of the incident during night nor any such case has been made
out. It is not even alleged that there existed even a facility of
telecommunication in the village.
fact that he had not chased the accused persons cannot be said to be an
unreasonable conduct on his part in view of the fact that the accused persons
were armed. The evidence of PW 4 Har Nagar Singh also corroborates the
prosecution case. Nothing has been pointed out either before the High Court or
before us to show that he is untrustworthy. PW 5 was the son of the deceased.
He at the time of incident was aged about 12 years. The learned Sessions Judge
satisfied himself that he possessed normal intellect and, was, thus, found fit
to depose in the case.
again no discrepancy in the statement worth noticing has been brought to our
S.P. Agarwal who conducted autopsy on the dead body has proved the post mortem
report. The post mortem was conducted on 12.6.1978 at 4.00 p.m, the material portion of the report reads thus:
Age About 36 years Probable time since death About 1.1/2 day.
Condition of body R.M. alongwith upper lower limb, blister present, skin
peeled off at places.
Incised wounds Ante Mortem injuries.
G.S. wound of entry 4 cm x 2 cm x abd. cavity into left side abdomen 21 cm
below the left nipple (sic)lacerated. sic coming out surrounding by scorching
area in an area of 10 cm x 4 cm directed inward upward and medially.
Abrasion 7 cm x 0.5 cm on the left side back auxilary line base, middle.
*** *** II - Thorax.
walls, ribs, cartridges see injury noted b. Pleura Rt. Punctured.
d. Right lung Punctured 3 cm x 1 cm e. xxx f. Pericardium contains clotted
blood g. Heart with wt. Rt. Side punctured 1.5 cm 1 cm (sic) 8 Oz.
Cavity contains clotted blood
cavity, teeth 16/16
Stomach and its contents Empty punctured 3 cm x 1 cm (sic)
Large intestines and its contents Full of faeces, NAD
Liver with wt. Left side punctured 2 cm x 1 cm x 2 lb.
remarks One caroted bullet recovered from Rt. Shoulder, one under the ribs.
of death The cause of death due to shock and haemorrhage as a result of
gun-shot injuries." The post mortem report as well as the statements of
Dr. S.P. Agarwal in Court fully support the prosecution case.
categorically stated that the death occurred owing to 'the injuries', i.e.,
there were more than one injury. It further appears from 'Additional Remarks'
of the post mortem report that two bullets were recovered from the body.
High Court unfortunately, as noticed hereinbefore, in recording the judgment of
acquittal, wrongly laid emphasis that only one fire injury was caused. The
medical report shows that death took place because of 'injuries' meaning
thereby more than one injury. The post mortem report further shows that whereas
one injury was caused on the left side of the abdomen the other one was caused
on the right side of the body. Keeping in view the nature of the injuries
suffered by the deceased, the same could not have also been caused by one shot.
Furthermore, evidently the shot fired by Natthu was fatal and not the one fired
by Ram Prakash.
have also seen the site plan, from a perusal whereof it appears that the
courtyard was a very small one. The width of the courtyard was 3 paces and its
length was only 7 paces. As disclosed by the eye witnesses, they were standing
only two hands away from the room. All the accused persons were residents of
the same village and, thus, it cannot be said that, even if the light was dim,
it was impossible for the eye witnesses PW 1, PW 3 and PW 5 to identify them.
So far as non-mentioning of the crime number on the Fard Ex. K-2 is concerned,
PW 9 in his deposition was forthright in admitting that he had not thought
necessary to write crime number on Fard Ex. K-2. Such laxity on the part of the
investigating officer, in our opinion, would not disprove the prosecution case.
High Court has not assigned any cogent or sufficient reasons for disagreeing
with the findings of the learned Sessions Judge. It arrived at certain
conclusions without analyzing the evidences on record. It is based on surmises
and conjectures. Despite finding that there had been an injury over the
abdominal region with scorching around the area apart travelling upward from
the abdomen which indicated that the deceased was hit, no explanation has been
given why the same was not found to be in consonance with the prosecution
High Court acquitted the accused persons without analysing the evidence on
record and in that view of the matter, the impugned judgment cannot be
sustained. (See Amar SC 1) The Trial Court upon critical examination of the
evidence of the eye witnesses had rightly concluded that they were truthful
witnesses and the respondents together with Ram Prakash (absconding) and Nawab
(since deceased) were present at the time of occurrence. Merely because the
witnesses happened to be the relatives of deceased by itself cannot be a ground
to reject their testimonies. In view of the fact that the occurrence took place
at the dead of night they were natural witnesses and were supposed to be
present at the place of occurrence.
reasoning of the High Court to the effect that there was no reason for the
accused to raise an alarm to say the least, is incomprehensible inasmuch as had
the deceased, upon being threatened, stated that he would not depose against
Ram Prakash and Natthu in the case of murder of Kedar, he might have been
spared. The High Court failed to notice that even similar threat was given to Het
Ram which should have been considered as a part of the same transaction.
Furthermore, if the eye witnesses are trustworthy, the motive attributed for
commission of crime may not be of much relevance. In this case, however, the
motive for commission of the crime stands proved. We are satisfied that by
reason of the judgment of the High Court, a great miscarriage of justice has
taken place. We, therefore, are of the opinion that the impugned judgment of
the High Court cannot be sustained. wherein one of us (Sabharwal, J.) was a
well reasoned judgment of the Sessions Court on critical analysis of the
evidence was reversed by the High Court on consideration of improvements and
contradictions which are minor and natural and rather go to show the
truthfulness of the evidence." It was further observed:
are conscious of limitations while dealing with an appeal against a judgment of
acquittal. Having, however, found that miscarriage of justice has resulted by
an entirely faulty and erroneous appreciation of evidence by the High Court, it
becomes our duty to interfere in the matter. From the evidence, the only view
possible is one taken by the Sessions Court." It is not a case where two
reasonable views are possible. It is also not a case where findings recorded by
the High Court are fully supported by the evidences on record. The High Court,
as noticed hereinbefore, proceeded absolutely on a wrong premise that there had
been only one fire injury which is contrary to records.
High Court being a court of first appeal was required to consider and reappreciate
the evidences but it failed to do and proceeded to dispose of the appeal on
general observations which is impermissible. (See Narendera It is well-settled
that when reasoning of the High Court is perverse, this Court may set aside the
judgment of acquittal and restore the judgment of conviction and Nath Jha &
Ors. JT 2003 (8) SC 404 : 2003 (7) Supreme 576).
further well-settled that there is no embargo on appellate court to review
evidence upon which an order of of West Bengal and Ors. 2003 (8) Supreme 884, Surinder
Singh (7) Supreme 780 : JT 2003 (9) SC 17] We, therefore, have no other
alternative but to hold that the High Court went wrong in passing a judgment of
acquittal reversing the well-reasoned judgment of the learned Sessions Judge.
It is wholly unsustainable.
view of aforementioned, the judgment of acquittal passed by the High Court is
set aside and that of the learned Sessions Judge is restored.
respondent No. 1 Nawab Singh is said to have expired, the appeal stands abated
appeal is, therefore, allowed so far as respondent Nos. 2 and 3 are concerned.
They shall serve out their remaining sentences imposed upon them by the learned
Sessions Judge wherefor requisite steps shall be taken in accordance with law.
appeal is allowed with the aforementioned directions.