Narain Singh Vs. State of U.P. & Ors.  INSC 1611 (18 September 2009)
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOs.
891-892 OF 2002 Raj Narain Singh .... Appellant Versus State of U. P. &
Ors. .... Respondents With Criminal Appeal Nos. 1811-1812 of 2009 (Arising out
of S.L.P (Crl.) Nos. 3595-3596 of 2002)
Mukundakam Sharma, J.
The present Criminal Appeals have been preferred against the
judgment and order passed by the Allahabad High Court whereby it reversed the
judgment and order of conviction passed by the trial Court under Sections 302,
307, 323, 342 read with 34 of the Indian Penal Code (in short "the
IPC") and Sections 27 and 30 of the Arms Act.
The facts leading to the filing of the present appeals, as per the
prosecution, in brief are that on 23.05.1994, i.e., a day prior to the date of
the occurrence, Sunil Singh alias Guddoo (PW-2), a resident of village Vasnari,
Police Station, Kerakat, District Jaunpur came to visit the house of Raj Narain
Singh (PW-1), complainant/appellant herein who is a resident of village
Pravaspur, Police Station, Mariyahun, District Jaunpur for the `Bidai' of his
sister in connection with a marriage in PW-2's family. On the fateful day,
i.e., 24.05.1994 at around 8.30 a.m., PW-2 went to the petrol pump known as the
Dharamraj Service Station, Pali owned by the accused persons for procuring
petrol for his scooter. At the petrol pump, an altercation arose between PW-2
and Prabhakar Pandey (Accused No.3), and the same ended up in a fight between
them. Shortly after PW-2 had left the house of PW-1, PW-1 alongwith one Adya
Prasad also left the house for going to the examination centre where they were
to evaluate the board examination answer books. On their way to the said
examination centre, PW-1 and said Adya Prasad saw that PW-2 was being dragged
and beaten by the accused persons. On seeing this, PW-1 and Adya Prasad tried
Accused No. 3 exhorted Pushkar Pandey (Accused No. 2) to shoot the interveners,
whereupon, Accused No. 2 fired a shot from his double barrel gun which
compelled PW-1 and his companion to retreat to safety.
gunshot and the resulting commotion attracted the attention of Rajesh and Brijesh,
both sons of PW-1, who then emerged from the village pathway on their
motorcycle and reached the spot. Karunakar Pandey (Accused No.1) and Accused
No. 3 exhorted Accused No. 2 to kill both Rajesh and Brijesh. Shots fired by
Accused No. 2 hit Rajesh and Brijesh, as a result of which, both fell down from
their motorcycle and died on the spot. The aforesaid incident was witnessed by
Ramjee Maurya (PW-3), Virendra Singh, Bhola Nath Singh and several other
persons. PW-2 was taken captive by the accused persons inside the said service
thereafter, PW-1 went to the Police Station, Mariyahun and lodged a written
report at about 9.10 a.m. on the same day. On the basis of the aforesaid
written report, the First Information Report (in short "the FIR") was
registered by the Head Constable Jeet Bahadur Singh (PW-8) and a Crime Case No.
178/1994 was registered in the presence of SSI Narendra Pratap Singh (PW-11)
under Sections 323, 342, 307, 302 of the IPC.
PW-11 proceeded to the spot of occurrence. On reaching the spot of occurrence,
PW-11 noticed PW 2 being kept captive by the accused Nos. 1 and 2 inside the
showroom. Thereupon, he proceeded towards the showroom and on seeing him the
two accused tried to flee away from the place of occurrence. They were,
however, apprehended and on searching them, PW-11 recovered a pistol and a gun
from their possession. Accused 3 No.3 was found to be absconding from the spot
of occurrence. PW-2 was then freed from the custody and sent to the police
station along with Constable Sunil Kumar Singh for the purpose of medical
treatment. The statement of PW-1 was recorded on the spot and that of PW-2 was
recorded after he returned back after undergoing medical examination.
Subsequently, with the help of PW-1 and PW-2, a site plan was prepared and four
empty cartridges of 12 bore were seized by the police. Dr. M. L. Srivastava
(PW- 4), who had examined PW-2 on 24.05.1994 at 1.50 p.m. in his report,
mentioned about four injuries on the person of PW-2. Dr. C.K. Gupta (PW- 7) had
conducted the post-mortem of the dead bodies of the deceased persons and in his
two reports opined that the gunshots had injured the vital part of the body and
that death had been caused due to shock and hemorrhage. On the completion of
the investigation, a charge sheet was submitted. On the basis of the same, the
charges were explained to the accused who pleaded not guilty and claimed to be
The prosecution, in order to establish the guilt of the accused,
examined several witnesses and exhibited documents. After examining the
witnesses from both sides and upon hearing arguments advanced by the parties,
the trial Court by its judgment dated 01.02.1996 convicted all the three
accused. Accused No. 2 was convicted and sentenced to life 4 imprisonment under
Section 302 IPC, ten years RI under Section 307 IPC, six months RI under
Section 323 read with 34 IPC, six months RI under Section 342 read with 34 IPC;
and 3 years RI under Section 27 of the Arms Act. The trial Court also imposed a
fine of Rs. 3000 and 1000 under Section 307 IPC and 27 of the Arms Act
respectively. Accused No. 1 was convicted and sentenced to life imprisonment
under Section 302 read with 34 IPC, six months RI under Section 323 read with
34 IPC, six months RI under section 342 read with 34 IPC. Accused No. 3 was
convicted and sentenced to life imprisonment under Section 302 read with 34
IPC, seven years RI under Section 307 IPC, six months RI under Section 323 read
with 34 IPC, six months RI under Section 342 read with 34 IPC; and six months
RI under Section 30 of the Arms Act. The trial Court also imposed a fine of Rs.
3000 under Section 307 IPC. All the accused persons were also directed to pay a
sum of Rs. 1, 50,000/- in total as compensation under section 357 (3) of the
Code of Criminal Procedure (in short "the CrPC') to PW-1.
Aggrieved by the aforesaid decision of the trial Court, the
accused preferred two separate appeals in the Allahabad High Court. Accused No.
2 preferred Criminal Appeal No. 234 of 1996 and Accused No. 1 and 3 preferred
Criminal Appeal No. 235 of 1996. The High Court by its impugned judgment dated
27.02.2002 allowed the aforesaid appeals and set 5 aside the decision of the
trial Court thereby acquitting all the accused from the aforesaid charges.
Dissatisfied with and aggrieved by the decision of the High Court,
four Special Leave Petitions (two by the Complainant/PW-1 and another two by
the State of U. P.) were preferred. Leave was granted by this Court in the
Special Leave Petitions filed by the Complainant/PW-1 on 29.08.2002.
Learned counsel appearing for the complainant as also the State
forcefully argued before us that the decision of the High Court erroneously
acquitting the accused persons suffers from serious infirmity inasmuch as the
three eye-witnesses (PW-1, PW-2 and PW-3) were consistent in their statements
and proved the prosecution case to the hilt as stated in the FIR and that no
contradiction could be proved of the facts stated in the FIR and the statement
of witnesses. It was further submitted that the High Court failed to appreciate
the fact that a father would not unnecessarily implicate an innocent person at
the cost of sparing the real culprits responsible for the murder of his two
grown up sons. It was further contended that the High Court ignored the vital
fact that Accused No. 1 and 2 were arrested from the spot and arms were
recovered from their possession immediately and that Accused No. 3 succeeded in
absconding. It was further submitted that the High Court wrongly discarded the
evidence of PW-3 on the ground that he 6 could have got his cattle grazed
elsewhere and that his statement was recorded two days later from the date of
occurrence. It was further contended that the High Court erroneously came to
the conclusion that the prosecution failed to attribute to the accused persons
any motive for the commission of the said offence. It was further submitted
that the High Court failed to take into consideration the fact that the delay
in medical examination of PW-2 was adequately explained by the prosecution and
that could not have been made a ground for disbelieving the case of the
On the other hand, learned counsel appearing on behalf of the
accused persons strongly opposed the aforesaid contentions and submitted that
the High Court has rightly set aside the decision of the trial Court as there
are several serious infirmities in the evidence of the prosecution witnesses
and in the manner of recovery of seized weapons and cartridges. It was further
submitted that if the order of acquittal is one of the possible view, the same
deserves deference rather than interference by the appellate court. In support
of the same, reliance has been placed on the decision of this Court in Rang
Bahadur Singh v. State of U. P., (2000) 3 SCC 454; Ghurey Lal v. State of U.
P., (2008) 10 SCC 450.
In view of the aforesaid submissions advanced by the parties, we
will now proceed to address the submissions in light of the evidence available
The scope of appeals under Article 136 of the Constitution is
undisputedly very much limited. This Court does not exercise its overriding
powers under Article 136 to reweigh the evidence. The court does not disturb
the concurrent finding of facts reached upon proper appreciation.
two views are reasonably possible, one indicating conviction and other
acquittal, this Court will not interfere with the order of acquittal. But this
Court will not hesitate to interfere if the acquittal is perverse in the sense
that no reasonable person would have come to that conclusion, or if the
acquittal is manifestly illegal or grossly unjust. Recently, in the case of
Chandrappa v. State of Karnataka,(2007) 4 SCC 415, at page 432 this Court (per
Thakker J.) after elaborately discussing the previous decisions on this point
has aptly summarized the law as follows:
From the above decisions, in our considered view, the following general
principles regarding powers of the appellate court while dealing with an appeal
against an order of acquittal emerge:
appellate court has full power to review, reappreciate and reconsider the
evidence upon which the order of acquittal is founded.
Code of Criminal Procedure, 1973 puts no limitation, restriction or condition
on exercise of such power and an appellate court on the evidence before it 8
may reach its own conclusion, both on questions of fact and of law.
Various expressions, such as, "substantial and compelling reasons",
"good and sufficient grounds", "very strong circumstances",
"distorted conclusions", "glaring mistakes", etc. are not
intended to curtail extensive powers of an appellate court in an appeal against
acquittal. Such phraseologies are more in the nature of "flourishes of
language" to emphasise the reluctance of an appellate court to interfere
with acquittal than to curtail the power of the court to review the evidence
and to come to its own conclusion.
appellate court, however, must bear in mind that in case of acquittal, there is
double presumption in favour of the accused. Firstly, the presumption of
innocence is available to him under the fundamental principle of criminal
jurisprudence that every person shall be presumed to be innocent unless he is
proved guilty by a competent court of law. Secondly, the accused having secured
his acquittal, the presumption of his innocence is further reinforced,
reaffirmed and strengthened by the trial court.
two reasonable conclusions are possible on the basis of the evidence on record,
the appellate court should not disturb the finding of acquittal recorded by the
The same view has been reiterated by this Court in Ghurey Lal v. State
of U.P., (2008) 10 SCC 450, at page 476, in which one of us (Hon'ble Justice
Dalveer Bhandari) after discussing a number of authorities on this issue
summarized the law as follows:
The following principles emerge from the cases above:
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.
accused is presumed innocent until proven guilty. The accused possessed this
presumption when he was before the trial court. The trial court's acquittal
bolsters the presumption that he is innocent.
3. Due or
proper weight and consideration must be given to the trial court's decision.
This is especially true when a witness' credibility is at issue. It is not
enough for the High Court to take a different view of the evidence.
also be substantial and compelling reasons for holding that the trial court was
There is no dispute with regard to the place of commission of the
crime. It was committed at the Dharamraj Service Station. If we critically
examine the evidence of PW 1, there is nothing to doubt the correctness of the
version given by him. PW-1, complainant in the present case has proved the FIR
(Ext. Ka-5) lodged by him. He has stated the contents of Ext. Ka-5 verbatim in
his statement and in cross examination also there is no contradiction between
the facts stated in the FIR and his evidence in the trial Court which has been
corroborated by the evidence of PW-2 and PW-3. PW- 3 in his deposition before
the trial court has categorically stated that he reached at `bhita' in the
morning at about 8 a.m. for grazing his cattle and after sometime while he was
still there, he saw that the Accused No. 3 was having an altercation with PW-2.
All the accused persons then started beating PW-2. PW-3 further stated that at that
time PW-1 and one Adya Singh came there and tried to intervene but Accused No.
2 fired a shot at PW-1 from his double barrel gun which, however, did not hit
PW-1. Upon this, sons of PW-1 namely, Rajesh and Brijesh, reached the spot on
their motorcycle and they were also fired upon by Accused No. 2. The gunshots
10 struck both the deceased persons who fell down from their motorcycle and
died on the spot.
Thus, it is quite clear that PW-1, PW-2 and PW-3 who were eye-
witnesses to the occurrence have fully proved the incident and corroborated the
statements mentioned in the FIR and there is no inconsistency in the statements
of all the three witnesses. There is no material contradiction in the cross
examination and the entire facts of the FIR which has been fully supported by
the statements of all the three aforesaid witnesses.
Another submission of the counsel appearing on behalf of the
accused is that PW-3, being an employee of PW-1, could not be said to be an
independent witness and therefore his testimony could not be relied upon.
accept this contention as it neither finds any support from the prosecution
evidence nor has been proved by any defence witnesses.
for the Respondent relied upon the statement of PW-3 wherein he stated PW-1 as
master for submitting that PW-3 is a servant of PW-1. But a careful perusal of
his statement would indicate that PW-3 called PW-1 as master as PW-1 was a
teacher and therefore he was described as master.
said evidence, it therefore, cannot be deduced that PW-3 was a servant of PW-1.
From the perusal of the post mortem report and the statement of
the doctor it is clearly evident that the injuries on the deceased persons were
found to be on the chest which is a vital part of the body and the death was
natural as the bullet had hit them. According to the statement of PW-7, the
cause of death was the gun shot ante-mortem injury on the vital part of the
body and from excessive bleeding and shock. According to the statement of PW-7 at
the time of firing of the gun its barrel must have been at a distance of 3 to 6
feet from the dead bodies. As a result of which the deceased Brijesh and Rajesh
had suffered injuries from the gun shots fired within 6 feet from the place
where they were hit by the bullet and the same caused their instant death.
It is the case of the accused that the shot was fired by the
defence in their right of private defence. In the written statement of Accused
No. 2 recorded under Section 313, Cr.PC, this fact has been accepted that there
was quarrel regarding petrol. Both deceased Brijesh and Rajesh came to the
petrol pump on motor cycle. Shots were fired indiscriminately by Accused No. 2
from the licensed gun of Accused No. 3. The shots hit Rajesh and Brijesh. They
have also accepted the recovery of licensed gun of A3 from the petrol pump.
The defence towards the end of the trial tried to put up a version
that the two deceased came there to the petrol pump to commit robbery by
hurling bomb and in the process also caused damage to the petrol pump.
however, no proof in support of the said contention could be produced by the
defence. There is nothing on record which can even remotely suggest that the
act of the accused persons was in exercise of their right of private defence.
The investigation, at the place of occurrence, soon after the incident did not
reveal any remains of bomb or recovery of any firearm from the hands of the
deceased or any damage to the petrol-pump.
was also found on the bodies of the accused. It is pertinent to mention here
that no suggestion regarding recovery of any bomb materials or detection of any
signs of damage to the petrol pump by the deceased persons and PW-2, was put by
the defence to either PW-10 or PW-11, both of whom were present at the place of
occurrence at the time when the showroom of the accused persons was searched
and weapons, cartridges and other articles were seized. Thus, the submission of
the defence with regard to the alleged exercise of right of private defence by
the accused persons being without any basis, the same also fails.
As far as the allegation of delay in lodging of FIR is concerned,
it was been stated on behalf of the prosecution that the incident had taken
place at 13 8.30 a.m. and as per the FIR the police station Mariyahun is about
7 km from the place of occurrence. It is the case of the defence that as the
report was lodged at the police station at 9.10 a.m., the same being very
prompt, therefore, there is bungling regarding report and time of FIR. It was
contended that the deceased Brijesh and Rajesh were the sons of PW-1and they
died on the spot and in such a situation, the natural conduct of father loosing
two sons would be to stay with the sons and weeping instead of going to the
police station immediately to lodge an FIR. However, we are unable to accept
such contention, as it is devoid of any merit. In the present case it is quite
clear from the evidence of the witnesses that first of all, PW-2 who was
relative of the PW-1 came to the petrol pump i.e. the place of occurrence. The
altercation arose between PW-2 and Accused No. 3. All the three accused then
started beating PW-2. PW-2 was then dragged and looked inside the show room.
When PW-1 came to prevent the accused from doing this, the Accused No. 2 fired
shot at him but by chance the shot did not hit him. At that time, the deceased
Rajesh and Brijesh emerged there on motorcycle. On the exhortation by the
accused persons, Accused No. 3 fired shots aiming at them, due to which Brijesh
and Rajesh fell down and died on the spot. It is also proved from the evidence
that PW-1 along with his companion Adya Prasad Singh again came forward to his
sons then the accused Pushkar again fired a shot. In the aforesaid circumstances,
it is quite 14 clear that PW-1 could not reach upto his sons after they fell
down due to firing. It is also clear from the record that the two accused had
locked PW-2, a relative of PW-1 in their custody and at that time Accused No. 2
was having a gun. In the aforesaid circumstances, when PW-1's both son fell
down, his relative (PW-2) was in the custody of the accused persons, PW-1 had
indeed no other option except to approach the police station. That was also
necessary since there was also danger to the life of PW-2. In the aforesaid
circumstances, we find no reason to doubt the prompt registration of the FIR.
Another submission which was made on behalf of the accused was
that PW-1 to PW-3 are interested witnesses and there are some contradictions in
their statements. It has been contended that PW-1 and PW-2 are related to each
other and also with the two deceased as both deceased were the sons of PW-1.
However, PW-3 cannot be said to be in any way interested with PW-1 or PW-2 nor
he had enmity with the accused persons. A perusal of the evidence of PW-3
unmistakably makes it quite clear that on the fateful day, he proceeded at 6
O'clock from his house for grazing cattle and had reached at 8 O'clock, at
`bhita' in front of petrol pump towards east of the road along with his cattle.
The incident took place 15 in the month of May and as the cattle were grazing,
his presence at the place at 8 a.m. cannot be doubted.
The learned counsel appearing for the accused has strenuously
argued and drawn our attention to the fact that the prosecution has not
examined the other witnesses available on the spot. However, we are unable to
accept the said contention as it is not necessary that all those persons who
were present at the spot must be examined by the prosecution in order to prove
the guilt of the accused. Section 134 of the Evidence Act provides that no
particular number of witnesses is required for proof of any fact. It is trite
law that it is not the number of witnesses but it is the quality of evidence
which is required to be taken note of by the courts for ascertaining the truth
of the allegations made against the accused. In the Takhaji Hiraji v. Thakore
Kubersing Chamansing,(2001) 6 SCC 145, at page 155, this Court observed as
So is the case with the criticism levelled by the High Court on the prosecution
case finding fault therewith for non-examination of independent witnesses. It
is true that if a material witness, who would unfold the genesis of the
incident or an essential part of the prosecution case, not convincingly brought
to fore otherwise, or where there is a gap or infirmity in the prosecution case
which could have been supplied or made good by examining a witness who though
available is not examined, the prosecution case can be termed as suffering from
a deficiency and withholding of such a material witness would oblige the court
to draw an adverse inference against the prosecution by holding that if the
witness would have been examined it 16 would not have supported the prosecution
case. On the other hand if already overwhelming evidence is available and
examination of other witnesses would only be a repetition or duplication of the
evidence already adduced, non-examination of such other witnesses may not be
material. In such a case the court ought to scrutinise the worth of the
of facts must ask itself -- whether in the facts and circumstances of the case,
it was necessary to examine such other witness, and if so, whether such witness
was available to be examined and yet was being withheld from the court. If the
answer be positive then only a question of drawing an adverse inference may
arise. If the witnesses already examined are reliable and the testimony coming
from their mouth is unimpeachable the court can safely act upon it,
uninfluenced by the factum of non-examination of other witnesses. In the
present case we find that there are at least 5 witnesses whose presence at the
place of the incident and whose having seen the incident cannot be doubted at
all. It is not even suggested by the defence that they were not present at the
place of the incident and did not participate therein. The injuries sustained
by these witnesses are not just minor and certainly not self-inflicted. None of
the witnesses had a previous enmity with any of the accused persons and there
is apparently no reason why they would tell a lie. The genesis of the incident
is brought out by these witnesses. In fact, the presence of the prosecution
party and the accused persons in the chowk of the village is not disputed. How
the vanity of the Thakores was hurt leading to a heated verbal exchange is also
not in dispute. Then followed the assault. If the place of the incident was the
chowk then it was a sudden and not premeditated fight between the two parties.
If the accused persons had reached their houses and the members of the
prosecution party had followed them and opened the assault near the house of
the accused persons then it could probably be held to be a case of self-defence
of the accused persons in which case non- explanation of the injuries sustained
by the accused persons would have assumed significance. The learned Sessions
Judge has on appreciation of oral and circumstantial evidence inferred that the
place of the incident was the chowk and not a place near the houses of the
accused persons. Nothing more could have been revealed by other village people
or the party of tightrope dance performers. The evidence available on 17 record
shows and that appears to be very natural, that as soon as the melee ensued all
the village people and tightrope dance performers took to their heels. They
could not have seen the entire incident. The learned Sessions Judge has
minutely scrutinised the statements of all the eyewitnesses and found them
consistent and reliable. The High Court made no effort at scrutinising and
analysing the ocular testimony so as to doubt, if at all, the correctness of
the several findings arrived at by the Sessions Court. With the assistance of
the learned counsel for the parties we have gone through the evidence adduced
and on our independent appreciation we find the eyewitnesses consistent and
reliable in their narration of the incident. In our opinion non- examination of
other witnesses does not cast any infirmity in the prosecution case."
Further, we cannot lose sight of the fact that ghastly acts, of
the nature and gravity as the present one, when committed in a public place may
very well create a sense of fear and shock in the minds of the witnesses and
thus prevent them from coming forward and deposing against the perpetrators of
the crime. If the testimonies of those witnesses, who have deposed during the
trial, are otherwise found to be reliable, trustworthy and cogent, the said
evidence cannot be disbelieved or discarded merely because the prosecution has
failed to examine other witnesses allegedly present on the spot.
Another submission which has been advanced by the learned counsel
for the accused is that the story of Accused No. 1 and Accused No. 2 locking
the PW-2 in the showroom is completely unbelievable. As discussed 18
hereinbefore, on altercation having taken place for petrol, PW-2 was assaulted
by the accused persons and forcibly taken to the showroom and locked in there
immediately thereafter. On being asked by PW-1 not to do the same, the gun shot
was fired at him but he retreated to safety. Thereafter, when both deceased,
Rajesh and Brijesh, the two sons of PW-1 reached the spot, two consecutive
shots were fired at them which resulted in their death and thereafter again gun
shot was fired towards PW-1. This fact is quite clear not only from the
evidence of PW-1 but has also been fully corroborated by the evidence of PW-2
and PW-3. It is quite evident from the record that a big crowd gathered at the
spot. Under the said circumstances, it was quite natural for the accused
persons to keep PW-2 in their custody.
PW-2 captive, a fact to which PW-11, the SSI who was investigating the case was
also a witness, could well protect the accused persons from the crowd which had
come to the place of occurrence after hearing the gunshots. Making PW-2 captive
could also protect the petrol tank from being damaged by the pressure of the
agitated crowd. The injuries were found on the body of PW-2 by the doctor who
had examined him soon after the incident at 1.50 pm on the same day.
The name of Surendra Kumar servant has been disclosed after his
death, for the first time in the statement under Section 313 CrPC and prior to
19 that the name of Surendra Kumar was never even referred to at any place.
that Surendra Kumar was a servant at the petrol-pump at the time of incident
has not been proved by any oral or documentary evidence by the defence.
In view of the aforesaid discussion, facts and circumstances of
the case, we are of the considered view that the High Court clearly erred in
reversing the order of conviction recorded by the trial Court. Accordingly, we
set aside the judgment and order of the High Court and restore the judgment and
decision of the trial Court.
The appeals are hereby allowed. The bail bonds of the Accused No.
1, Accused No. 2 and Accused No. 3 stand cancelled and they are directed to
surrender before the jail authorities within 15 days from today, failing which
the authorities are directed to proceed in accordance with law.
The appeals are hereby allowed in terms of aforesaid order.
.............................J. [Dalveer Bhandari]