State of U.P. Vs.
Sukhpal Singh & Ors.  INSC 310 (12 February 2009)
JURISDICTION CRIMINAL APPEAL NO.1285-1287 of 2001 State of U.P. ..... Appellant
Versus Sukhpal Singh & Others ..... Respondents
Dalveer Bhandari, J.
appeals are directed against the judgment dated 03.07.2000 passed by the High
Court of judicature at Allahabad in Criminal Appeals Nos. 2311, 2234 and 2243
of 1980, by which the High Court has set aside the judgment of conviction of
accused (respondents herein) passed by the Additional Sessions Judge, Aligarh,
facts which are necessary to dispose of these appeals are recapitulated as
under:- 2 The prosecution version, as set up in the first information report
by Shri Bhagwant Singh, PW2 is that on 1.9.1979 at about 7.45 p.m. in the
evening, Hiralal Yadav, the elder brother of the complainant, Kundan Singh,
Chhabi Nath Singh, Tikam Singh and Chandan Giri were sitting in the open area
of the house of Bhagwant Singh. Aidal Singh, the younger brother of Hiralal and
the ladies of the family were inside the house. At that time, about 10 to 15
persons armed with country-made pistols, guns and other weapons entered the
house of the complainant. They came for committing dacoity as mentioned in the
FIR. They started indiscriminate firing and in the process they killed Hiralal
and Aidal Singh and injured Smt. Longshree and Chandan Giri. It is further
disclosed in the FIR that the miscreants inquired about the property articles
from Smt. Longshree and looted licensed single barrel gun of Aidal Singh and
some other articles, the details of which were not given in the FIR. There was
moonlight and lantern light at the spot where the incident had taken place.
Amongst the miscreants, accused Sukhpal, Harpal, two brothers, sons of Rabti
Singh, Ajanti, resident of 3 village Sikanderpur and Munna Giri, resident of
Sitapur have been identified in the moonlight and the lantern light.
According to the
prosecution, they remained on the spot with other miscreants for about half an
is stated that the incident had taken place on 1.9.1979 at 7.45 am and the FIR
was lodged at 9.15 p.m. on the same night. The case against the accused persons
was registered and investigated.
injured eye witnesses were medically examined on the same night at the Primary
Health Centre, Sikandrarao by Dr. S.K. Jha. The condition of Hiralal and Aidal
Singh was precarious and their dying declarations were recorded at Sikandrarao
by Shri Ram Autar Saxena, Tehsildar Magistrate, PW9. Later on, both Hira Lal
and Aidal Singh succumbed to their injuries.
Singh in his dying declaration specifically named Sukhpal Singh as assailant
who had fired at him and Hiralal named Sukhpal, Harpal and Ajanti whom he had
identified 4 and who had fired shots at him. He also stated that there were
10/15 persons armed with double barrel guns. They had given beatings. In the
instant case, according to the prosecution version, two persons namely Hira Lal
and Aidal Singh were killed and Chandan Giri, PW3 and Smt. Longshree PW5 wife
of Hira Lal were injured. The accused persons were recognized in the light of
lantern and moonlight. The accused persons were otherwise known to the
witnesses. The complainant has stated that Sukhpal and Harpal were his cousins
and Ajanti was accused's sarhu (brother-in-law - husband of the sister of the
wife of accused Sukhpal).
Accused Munna Giri
was also known to him as the sister of Munna Giri was married in his village
and in that connection Munna Giri used to visit this village off and on. Both
the accused and Sukhpal were friends.
Giri, PW3 had executed a sale deed of some of his abadi land in his favour and
in favour of his two brothers on 20.7.1979 for which agreement has been
executed on 6.6.1979 and Chandan Giri after the execution of the sale deed
parted with the possession of that land. Before the 5 execution of the said
sale deed, accused Sukhpal got a sale deed of the same land executed in his
favour from Chhauttan Giri and Jamuna Giri and for that matter proceedings
under sections 107 and 145 of Cr.P.C. were started and when there was much
tension on that account, Hira Lal had reported the matter to the police and,
consequently, FIRs were lodged.
Chandan Giri stated that on 1.9.1979 at about 7.45 in the evening, while he was
returning from the temple after worshipping the deity, Chhabi Nath, a close
relation of Hiralal who was sitting in front of the door of the house of
Hiralal called him and he accordingly went to him where besides him Tikam
Singh, Hiralal and Kundan Singh were also present.
While they were
sitting there, some miscreants came on the spot armed with guns and other
weapons. Out of the miscreants, he could identify accused Harpal, Sukhpal,
Ajanti and Munna Giri who were otherwise known to him held fire arms in their
possession. The miscreants also entered the house of Hiralal and caused
injuries to Aidal Singh and others who were inside the house. He stated that
the accused 6 persons had also removed the licensed gun from the house of
K.A. Singh, PW4, on next day i.e. on 2.9.1979 at 4.45 p.m. conducted the post
mortem of Aidal Singh and he found the following injuries:
1. One gun shot wound
of entrance 1-1/3" x >" x chest and abdominal cavity deep on left
side front of chest, 4=" below the left nipple. No tattooing, no
blackening was found in the injuries.
2. One gun shot wound
of exit >" x =" cavity deep on right side on posterior axillary
3. Multiple abrasions
in area of 6=" x 3=" around injury no.1.
4. One triangular
abrasion 2=" x 1=" x on the left of the back on the lower part.
5. Abrasion 3" x
=" just below left buttock.
6. Abrasion =" x
<", 2=" below injury no.2.
7. Upon internal
examination, 8th, 9th and 10th ribs were fractured and the pleura of the left
lung was also found torn in which clotted blood was also found. In the cavity
of the stomach, about half pint clotted blood was also found wherein about 3
oz. of food mixed with blood could be detected. Injury no.1 could be caused by
some firearm like gun and which was the cause of the death which occurred on
account of shock and hemorrhage. The witness proved his report Ex.Ka.6."
B.N. Gupta, PW7 conducted the post mortem examination of Hiralal and he found
the following injuries on his person:
wound 12 cm in length containing six stitched on the middle of the stomach. The
injury was found 1 cm in width and was cavity deep.
2. Stitched wound 7.5
cm in length and oblique in nature. It contained seven stitched and it was also
found to be 1 cm in width and it was also cavity deep. One end of the injury
was 6 cm away from injury no.1 towards left while the other end of the injury
was in the middle of injury no.1.
3. Incised wound 1.5
cm x 5 cm x stomach cavity deep on the right side of the stomach, 10 cm away
from the middle on the outer aspect.
4. Incised wound 1.5
cm x 1 cm x stomach cavity deep on the left side of the stomach, 10 cm away
from the midline towards outer aspect.
5. Abraded abrasion 5
cm x 1.5 cm on the left elbow on the outer side.
6. Abraded abrasion
1.5 cm x 1 cm on the left elbow on the front.
7. Abraded abrasion 6
cm x 3 cm on the left side of the back on 1/3rd lower part of the back and one
cm below the shoulder bone.
8. Abraded abrasion
10 cm x 5 cm on the left hip on the upper part.
9. Abraded abrasion
1/5 cm x 5 cm on the right elbow in the front.
10. Abraded abrasion
1 cm x 5 cm on the right wrist in the front. Pus was found inside the stomach.
One pellet was also
recovered from the stomach which was found empty. The cause of death was
peritonitis due to gun-shot injury. According to the doctor, injuries no.1 to 4
were surgical injuries. The witness proved his postmortem examination report
S.K. Jha, posted as Medical Officer Primary Health Centre, Sikandra Rao on
1.9.1979 examined Smt. Longshree and found the following injuries on person:
"1. Contusion 4
cm x 1/5 cm on the left shoulder.
2. Contusion 3 cm x
1.5 cm on the left shoulder.
3. Contusion 5 cm x 2
cm on the outer and middle part of right arm on upper side.
4. Contusion 6 cm x 2
m on the right scapular region.
5. Contusion 10 cm x
2 cm on the right side of the back, 7 cm below lower angle of scapula.
6. Contusion 6 cm x 1
cm on the left side of back.
All the injuries were
caused by some hard blunt object and were found to be fresh at the time of
Jha also examined Chandan Giri and found the following one injury on his
person:- "Lacerated wound 1 cm x 0.2 cm x muscle deep on the back of left
to the doctor, the injuries to Hiralal, Aidal Singh and Chandan Giri could be
caused by gun shots while injuries to Smt. Longshree could be caused by some
lathi or danda. The doctor further stated that he had written a letter to
Tehsildar Magistrate, Sikandrarao for recording the dying declarations of Aidal
Singh and Hiralal and their statements were recorded. The injured were in fit
condition to make statements for which he appended his certificates Exs. Ka.13
and Ka.14. The Tehsildar Magistrate also obtained the thumb impression of Aidal
Singh and signature of Hiralal on the statements before him.
Longshree, PW5, wife of Hiralal deceased, is an injured eye-witness. In her
testimony, she clearly stated that at about 7.30 p.m. in the night, she was
inside her house with the wife of Aidal Singh and along with the children of
her 10 family. At that time, she was busy cooking food while her husband
Hiralal was sitting in the chowk along with Chandan Giri and some others. About
8 or 10 miscreants had entered her house armed with guns, lathis and kattas
etc. and started firing as a result of which her husband Hiralal and Chandan
Giri were injured. Inside the house, the miscreants injured her and Aidal Singh
as well. The miscreants uttered that they would destroy the family of Hiralal
and they in fact took away the gun and some other articles. She also stated
that there was moonlight and lantern light and she could identify accused
Ajanti, Munna Giri, Sukhpal and Harpal who were otherwise known to her. The
miscreants made their escape good from the spot. She was also medically
examined and the doctor found number of injuries as enumerated in the preceding
Ram Autar Saxena PW9, Tehsildar (Executive Magistrate), Sikandra Rao stated
that on 1.9.1979, he had recorded the dying declarations Ex.Ka15 and Ex.Ka16 of
Hiralal and Aidal Singh. He also stated that whatever was stated before him by
the abovementioned two persons, he had 11 reduced the same in writing as
contained in the two documents mentioned above and before recording their
statements had satisfied himself that the deponents had obtained the certificates
of the doctor as well Exs.Ka.13 and Ka.14. He had obtained the thumb impression
and signature of the deponents (under their signatures) after having recorded
their statements which were read over to them. The accused persons in their
statements under section 313 Cr.P.C. pleaded not guilty and consequently they
were charged under section 396 IPC .
prosecution has based its case primarily on the evidence of the injured
witnesses Smt. Longshree PW5 and Chandan Giri PW3 respectively. Smt. Longshree
PW5, injured eyewitness clearly stated in her statement that she had recognized
accused persons in the moonlight and the light of the lantern. She also stated
that she had otherwise known the accused persons. She also stated that the
accused persons had injured her. The relevant portion of her statement reads
criminals had asked me about the goods kept in the house. I had told them about
the goods and that the entire kothi is open, search the goods. All the
criminals were open faced. They had tied cloth on their heads. The criminals
remained in my house for half an hour. After firing, the criminals searched for
articles in the house for half an hour."
Giri, PW3 also supported the entire prosecution version.
trial court found the testimony of Bhagwant Singh, PW2 brother of deceased
Hiralal and Aidal Singh and PW5 injured eye-witness Smt. Longshree, wife of
Hiralal and another injured PW3 Chandan Giri credible and trustworthy.
appellants were not strangers to the witnesses. They had known each other.
There was adequate moonlight and the light of the burning lantern. The trial
court analyzed the prosecution version and the defence version and came to the
clear conclusion that the prosecution has succeeded in establishing its case
beyond shadow of doubt.
trial court found the accused persons guilty under section 396 IPC and
sentenced them to life imprisonment.
The accused aggrieved
by their conviction by the trial court preferred appeal before the High Court.
The High Court by the impugned judgment allowed the appeal. The State of U.P. aggrieved
by the impugned judgment has preferred these appeals.
have carefully analyzed the impugned judgment of the High Court and also the
judgment of the trial court and have also carefully perused the entire evidence
Certain findings in
the impugned judgment of the High Court are based on no evidence, such as:
"Thus, it is
clear from the evidence on record that neither the appellants intended to
commit dacoity nor dacoity took place. But all the appellants were charged for
the offence of dacoity with murder."
is quite contrary to the evidence on record. The eye- witnesses have
specifically stated that the accused persons had committed dacoity. The accused
had also taken away the licensed gun and other articles. So the aforesaid
findings of the High Court are not based on evidence on record.
High Court in the impugned judgment also erroneously observed that- "...
the chief intention of accused was not to commit robbery, theft or extortion
but to commit murder and it was subsequent to the murder that they removed
certain property dishonestly."
finding cannot be supported by evidence on record.
This finding also
runs contrary to the earlier finding of the High Court and is contrary to the
evidence on record.
following findings of the High Court are also contrary to the evidence on
could not prove that dacoity took place and two deceased were murdered during
commission of dacoity."
the instant case, all the witnesses have stated that they had otherwise known
the accused persons and they were not strangers to them. In the moonlight and lantern
light they clearly identified them. Therefore, the test identification parade
was really not necessary in this case. Whether test identification parade is
necessary or not would depend on the 15 facts and circumstances of each case.
This court in a series of cases has taken the view that the test identification
parade under section 9 of the Evidence Act is to test the veracity of the
witness and his capacity to identify the unknown persons whom the witness must
have seen only once but in the instant case the witnesses were otherwise known
to accused persons, therefore, the test identification parade has no great
relevance in the facts and circumstances of this case.
High Court has altogether failed to deal with the dying declarations of both
the deceased Hiralal and Aidal Singh. The High Court has not correctly
construed and analysed the evidence on record. In this case, all the witnesses
have categorically stated that the accused persons committed dacoity and killed
Hiralal and Aidal Singh and injured Smt. Longshree and Chandan Giri in the
incident. There was adequate light in which they had recognized these accused
persons who were otherwise known to them.
High Court erroneously set aside a well reasoned judgment of the trial court
which is based on correct evaluation of evidence of injured eye-witnesses and
other witnesses and dying declarations on record.
the instant case, before the trial court an application was filed that the
accused persons ought to have been charged under section 302 IPC instead of
section 396 IPC which was rejected by the trial court on the ground that the
accused persons were justifiably charged under section 396 IPC. In these facts
and circumstances, the Trial Court was justified in arriving at the correct
conclusion that the accused were correctly charged under section 396 IPC and on
the basis of clear evidence on record, the accused persons were held guilty of
the offence under section 396 IPC.
evidence on record clearly reveals that the accused persons entered the
premises of the deceased Hiralal for committing dacoity. They had looted a
licensed gun and other articles and in the process they had also killed Hiralal
and Aidal Singh and injured Smt. Longshree and Chandan Gir.
careful consideration of the entire evidence on record, the following
conclusions are inescapable:
1. The impugned
judgment of the High Court is based on total misreading of the evidence of the
injured eye-witnesses PW3 Chandan Giri and PW5 Smt. Longshree;
2. The High Court
failed to appreciate that in this case, the test identification parade was not
required since the accused were otherwise known to the witnesses. The
conducting of test identification parade depends on the facts and circumstances
of each case.
3. In the impugned
judgment, the High Court ought to have considered the entire case in correct
perspective of the small rural village background where most of the people know
each other. They live in the vicinity. The test which may be relevant for
metros or big cities cannot always be applied to small rural village settings.
4. The High Court in
the impugned judgment has gravely erred in totally ignoring the dying
declarations of Hiralal and Aidal Singh, particularly when the dying declarations
were recorded by the Magistrate.
5. The High Court
erred in discarding the evidence of the injured eye-witnesses whose statement
is consistent and corroborated by other evidence on record.
impugned judgment of the High Court is contrary to the well settled legal
principles which have been crystallized by a series of decisions of this court.
In the latest pronouncement of this court in Ghure Lal v. State of U.P. (2008)
10 SCC 450, this court comprehensively dealt with series of cases and clearly
came to the conclusion as under:
"A number of
instances arise in which the appellate court would have "very substantial
and compelling reasons" to discard the trial court's decision. "Very
substantial and compelling reasons" exist when: I) The trial court's
conclusion with regard to the facts is palpably wrong; II) The trial court's
decision was based on an erroneous view of law; III) The trial court's judgment
is likely to result in "grave miscarriage of justice"; IV) The entire
approach of the trial court in dealing with the evidence was patently illegal;
V) The trial court's judgment was manifestly unjust and unreasonable; VI) The
trial court has ignored the evidence or misread the material evidence or has
ignored material documents like dying declarations/ report of the Ballistic
(VII) This list is
intended to be illustrative, not exhaustive."
Ghurey Lal (supra), the court clearly observed that unless there are compelling
reasons, the High Court should not set aside the judgment of the trial court.
The High Court must always keep in view that the trial court had advantage of
seeing the demeanour of the witnesses and, therefore, the conclusion of the
trial court should not be set aside in the light hearted manner. The court
dealt with various cases and observed as under:
appellate court is given wide powers to review the evidence to come to its own
conclusions. he appellate court may review the evidence in appeals against
acquittal under Sections 378 and 386 of the Criminal Procedure Code, 1973. Its
power of reviewing evidence is wide and the appellate court can reappreciate
the entire evidence on record. It can review the trial court's conclusion with
respect to both facts and law. But this power must be exercised with great care
this court would have been very reluctant to interfere with the judgment of
acquittal but in this case for very substantially and compelling reasons we are
constraint to set aside the impugned judgment of the High Court because the
High Court totally misread the entire evidence on record.
consideration of the totality of facts and circumstances particularly evidence
on record, the impugned judgment cannot be sustained and is, consequently, set
aside and the judgment of the trial court is restored. Accordingly, the appeals
bail bonds of the respondents are cancelled. They are directed to surrender
forthwith to serve out the remaining sentence and if the accused-respondents do
not surrender, in that event, the State is directed to arrest the respondents
and lodge them before the concerned jail to serve out the sentence.
(Harjit Singh Bedi)