Rajesh Singh &
Ors. Vs State of U.P.
J U D G M E N T
V.S. SIRPURKAR, J.
judgment passed by the High Court allowing the appeal against acquittal and convicting
the appellant for the offence under Section 302 read with Section 34, IPC is in
challenge in this appeal.
three appellants, Rajesh Singh (accused No.1), Najai Srivastav (accused No.2)
and Mohan Singh (accused No.3) came to be tried by the trial Court on the
allegation that they had committed murder of a young boy Deepak on 11.4.1993 in
the evening at about 5 O'Clock. Deceased Deepak was the son of Virendra Kumar
(PW-1). Virendra Kumar (PW-1) was a lawyer's clerk. When he and his brother S.K.
Srivastav, an 2advocate, were going for having `paan' at the paan shop near
Pico centre belonging to accused No.1, Rajesh, they saw that the three accused persons
were beating Deepak. Deepak was made to take the posture like a cock (murga)
and two bricks were kept on his back. Rajesh was hitting him with those bricks
and the hands and feet of the boy had been tied and accused Najai was hitting
him with a can. When Virendra Kumar (PW-1) asked as to why his son was being
beaten, it was told that Deepak had stolen some money. Virendra Kumar (PW-1) requested
the accused persons to let the child go as they had already beaten him severely.
refused to leave him and threatened that if he does not go he would also be assaulted.
This incident was seen by some others also. On this Virendra Kumar (PW-1) said
that he would inform the police but waited. All the three accused persons dragged
Deepak to house No.128/21, C-Block, Kidwai Nagar, Kanpur which was the house of
accused No.3, Mohan Singh. They confined him inside and shut the door. Virendra
Kumar (PW-1) and others kept on shouting from outside. After about half an
hour, the three accused persons ran away. When Virendra Kumar (PW-1) and others
went inside they saw that the boy was hung with a hook in the ceiling. His feet
were dangling at the height of 4-5 feet from the floor and he was dead. Virendra
Kumar (PW-1) then informed the police by lodging an FIR.
investigation was taken up by Chandra Shekhar Yadav (PW-4). He reached the
spot, did the necessary formalities and sent the body for autopsy. As many as
five ante-mortem injuries were found on the dead body during the post-mortem
which was conducted by Dr. Jugal Kishore Sharma (PW-3). These injuries were in the
nature of large abraded contusions. On internal examination his hyoid bone was
found fractured. As per the opinion expressed, the boy died due to asphyxia as
a result of throttling. After the investigation, charge sheet was filed. The
prosecution examined Virendra Kumar (PW-1), Shyam Ji Pandey (PW-2) as eye- witnesses
while Dr. Jugal Kishre Sharma who had conducted autopsy on the dead body of
deceased was examined as PW-3. In addition to this, police witnesses were also
examined. The accused abjured the guilt. The trial Court, however, acquitted
the accused persons dis-believing the eye witnesses and held that their
presence was doubtful. He also held that the conduct of Virendra Kumar (PW-1) was
unnatural. The trial Court also observed that the prosecution had failed to examine
S.K. Srivastav advocate, another eye witness.
State filed an appeal against this judgment and the High Court allowed the appeal
convicting the three accused persons of the offence under Section 302 read with
Section 34, IPC. That is how the appeal has come before us.
was vehemently argued by Shri Sanjay Jain, learned counsel for the appellants that
this was a case where the medical evidence was contradictory with the evidence
of eye witnesses. He also pointed out that the trial Court had given sound reasons
and the High Court had not exercised the caution while upsetting the finding of
acquittal handed out by the trial Court. The learned counsel also urged that it
not was found that the judgment of the trial Court was perverse and the
inferences were not possible at all. The appellate Court could not have upset
the judgment and convicted the accused persons. We were also taken through the
evidence of the witnesses which was severely criticized by the learned counsel.
Lastly, the learned counsel claimed that all the accused persons could not be held
guilty, particularly, when it was not certain as to which accused had caused
the murder by throttling deceased Deepak.
regards this, the learned Senior Counsel appearing on behalf of the State
supported the judgment passed by the High Court and pointed out that this was
the most foul murder and the reasoning given by the trial Court was extremely perverse.
Shri R.K. Dash, learned Senior Counsel pointed out by reference to the judgment
of the trial Court that the trial Court was extremely casual in appreciating
the evidence and had rejected the important evidence of the eye witnesses for
this backdrop, it is to be seen whether the appellate Court was right in
convicting the accused persons. There can be no dispute about the principles which
are now more or less settled while dealing with the judgment of acquittal. There
can be no dispute with the proposition argued by Shri Jain that unless the reasoning
by the trial Court is found to be perverse, the acquittal cannot be upset. There
can also be no dispute of the other proposition argued by Shri Jain that where two
views are possible even then the judgment of acquittal should not be upset in the
sense that the Court while dealing with the judgment of acquittal must see as
to whether the trial Court has taken a possible view.
is a well settled position now and we reiterate the same that while upsetting the
judgment of acquittal, the appellate Court must show the perversity in the judgment
of the trial Court and the appellate Court's judgment must show that the Court
was alive to the fact that it was dealing with the judgment of acquittal and further
the appellate Court also must record the finding that the view taken by the
trial Court was not possible in law at all.
the judgment from these angles, it has to be said that the appellate Court's
judgment very clearly records a finding that the acquittal recorded by the
trial Court was based on flimsy grounds and was wholly unjustified. The High Court
has also considered the benefit of doubt 6awarded by the trial Court and has
observed that it should not become a fetish. The High Court has also given very
good reasons to set aside the findings arrived at by the trial Court.
first such finding by the trial Court was that the FIR was ante- timed on the
ground that as per the evidence of Chandra Shekhar Yadav (PW-4), the
investigating officer, the dead body of deceased Deepak was dispatched from the
spot after being sealed at 9 p.m. for the police lines. However, in the record
of the police lines, it was shown to have received at 10 a.m. on 12.4.1993. The
FIR was also criticized by the trial Court and the defence counsel here on the ground
that there was no evidence offered by the prosecution to suggest that the
special report of the crime was sent to the higher authorities.
The High Court has found
that this criticism was not justified. The High Court has given the reasoning
that the FIR was lodged by the witness Virendra Kumar (PW-1) on 11.4.93 itself
at 6.40 p.m. Thus, if the incident happened at about 5 O'Clock in the evening,
the recording of the FIR at 6.40 p.m. in a police station which was 8 Kms. away
from the spot of occurrence could not be said to be late reporting. The High
Court has also relied upon the evidence of Chandra Shekhar Yadav (PW-4) that
the FIR had been lodged in the police station when he was not present there and
he was informed about it only on wireless and, therefore, he happened to reach the
spot directly with ASI 7and started the investigation of the case and was busy
there in drawing of Panchnama etc. right up to 11 p.m. and merely because the
copy of FIR was received in the office of the circular officer on 13.4.1993, it
should not lead to the conclusion that the FIR was ante-timed.
The High Court has also
found that if the dead body reached the police lines late at mid night and if
it was shown in the record that it was received at 10 a.m. on 12.4.93, there
was nothing significantly doubtful. We have also gone through the record as
well as the evidence of the investigating officer Chandra Shekhar Yadav (PW-4)
and though the timing is slightly irregular, that alone would not be sufficient
to reach a conclusion that the FIR was ante-timed. After all nothing was going
to be gained by the prosecution by ante-timing the FIR. Had the FIR been
ante-timed, the Panchnama could not have been commenced at 7.30 p.m. We do not
find any significant cross examination of the Panchas and the police officers,
particularly, on the aspect of timing thereof. We do not find this circumstance
to be of such a nature so as to throw the whole prosecution story which was
proved by two eye witnesses, one of them being the father of the boy.
learned counsel severely criticized the evidence of Virendra Kumar (PW-1) on
the ground that the behaviour of Virendra Kumar (PW-1) was extremely unnatural
and that his presence on the spot was extremely doubtful. We have seen the evidence
of Virendra Kumar (PW-1) very 8closely. We have also seen the reasons given by the
trial Court for rejecting his evidence. According to this witness, he and his
brother S.K. Srivastav had gone near Rajesh Pico Centre to have paan. That pico
centre was in the house of 128/22, C-Block, Kidwai Nagar, Kanpur. According to
this witness, he saw crowd in front of the Rajesh Pico centre and saw that
three accused beating his 11 year old son. He was made to take posture of a
cock (murga) and he was being hit by accused Najai with a can. While Rajesh was
pressing bricks and Mohan was slapping his son which he did twice.
On being asked, the accused
Rajesh replied that Deepak had stolen his money and even after requests by the witness,
Deepak was not being released and, therefore, Virendra Kumar (PW-1) made hue
and cry that the would inform the police. This incident was seen by Brij Bhan
Singh, Shyam Ji Pandey and Dinesh Kumar also. However, in their presence, the accused
persons dragged Deepak inside the nearby house at 128/22, C-Block, Kidwai Nagar,
Kanpur and shut the outside door. It was after about half an hour that the
accused persons opened the door and the three accused persons fled away towards
a square known as Chalis Dookan Chauraha. When the witnesses entered the room, they
found Deepak was hanging with the rope and was dead. His legs were dangling at 4-5
feet above the floor. It was on this basis that the First Information Report was
given in their hand writing after it was prepared. The trial Court then noted
the topography of the area as also the houses of 9the witnesses.
Thereafter, the trial
Court observed that there were 3-4 paan shops including one Pandit Ji's Paan shop.
The trial Court also noted that the witness did not have paan at Pandit Ji's Paan
shop and proceeded towards the paan shop which was near the shop of the accused
Rajesh. The trial Court also noted that there were about 100-150 persons gathered
when the door was shut by the accused persons and that when the accused persons
escaped by opening the door nobody tried to catch them. He also noted that this
witness had taken the name of Shyam Ji Pandey to be present in the crowd. While
considering the evidence of this witness, who was an eye witness and father of the
unfortunate boy, the trial Court held that Virendra Kumar (PW-1) and Dinesh
Kumar who were the clerks of the advocate as also SK Srivastav the brother of Virendra
Kumar (PW-1) and Shyam Ji Pandey who himself was an advocate were residents of
The trial Court then
observed: "the presence of many advocates and clerks is natural in the court
but the presence of these four at the spot of occurrence on a holiday does not
seem more probable." The trial Court then further observed: "the
betel shop of Pandit Ji is situated near the house of witness Virendra Kumar (PW-1)
before Pico centre but witness did not eat the betel on the aforesaid shop but
came to eat betel near Pico centre where the incident was happening. These
circumstances make the presence of this witness on the spot of occurrence at the
time of incident doubtful and this witness appears to be a chance
is on the basis of this that the trial Court has dis-believed the evidence of Virendra
Kumar (PW-1). We do not find any other reason having been given to dis-believe
his evidence. That we are surprised by this finding would be an understatement.
There was nothing unnatural for the witness to choose his Paan shop and merely
because he did not go to the nearest Paan shop, no fault could be found with
the witness. Further, it has come in the evidence that the residence of
Virendra Kumar (PW-1) is hardly 300-350 steps away from the Pico centre where the
incident was happening, therefore, to call this witness a chance witness is a
The High Court has
noted this perversity and has adversely commented on the finding reached by the
trial Court. The other reason given by the trial Court was that one Shyam Ji
Pandey was present at the time of writing the FIR and his name was bound to
have been mentioned in the FIR, but it did not mention the name of Shyam Ji Pandey
and, therefore, Shyam Ji Pandey also appeared to be a chance witness. As regards
Shyam Ji Pandey, the Sessions Judge said that his claim that he saw the
incident when he was going to fetch ice near the Pico centre was obviously
false and the trial Court has mentioned "according to this witness,
normally he drinks fresh water of hand pipe. The incident is of 11th April at 5
p.m. At that time it is not hot worth drinking cold water especially when the
witness used to drink hand pipe water daily."
this reason for rejecting the evidence of Shyam Ji Pandey, to say the least, is
perverse. There is no law saying that merely because one is used to drink water
from hand pipe, he should not purchase ice. The High Court has found this
reasoning in respect of Shyam Ji Pandey to be perverse. Again the Sessions Judge
found that Shyam Ji Pandey who was present was not mentioned in the FIR. It was
bound to be realized that Virendra Kumar (PW-1), the author of the FIR had seen
his own son being killed by three bullies of the locality. It has also come in the
evidence that accused No.1, Rajesh was already facing a murder case and was on
bail. Under these circumstances, to expect each and every detail including the
names of the witnesses, would be totally unnatural when both these witnesses
faced their cross examination extremely well. There was nothing brought in
their cross examination which could falsify their claim of having seen the
is true that the others like the brother of Virendra Kumar (PW-1) did not step into
the witness box but that by itself will not make the evidence of two witnesses suspect
in any manner. The witness was candid enough to say that he did not have any
enmity with accused Mohan and he had heard that he was being tried under
Section 302, Indian Penal Code. He was also candid enough to say that accused Mohan
and accused Najai had not raised any accusation against deceased Deepak that he
had stolen their belongings.
It has come in his
cross examination that when he was requesting the accused persons to spare his
son, Brij Bhan Singh, Shyam Ji Pandey and Dinesh reached there on hearing the shouts
thereby the presence of Shyam Ji Pandey was thoroughly established by him in
his cross examination itself. In his cross examination, he gave a graphic description
of what each accused was doing while beating Deepak. The tenor of his evidence was
natural and even after closely examining the evidence we also feel like the High
Court that the Sessions Judge was in error in rejecting the evidence on flimsy
grounds. Same is true of the evidence of Shyam Ji Pandey and excepting that Shyam
Ji Pandey was not expected to purchase ice and for that purpose come out on the
spot, nothing has been found inconsistent with the evidence of Virendra Kumar (PW-1).
Shyam Ji Pandey is a literate witness.
He is MA LLB and had practiced
law for two years. He also claimed that he knew and recognized the three
accused persons. He had given a correct and graphic picture of what happened. Much
of his cross examination was on the fringes without confronting him with any inconsistencies.
It was really a matter of importance that there are no prevarications or inter
se contradictions in the evidence of these witnesses. He has also given the correct
picture of what each accused was doing. After seeing the whole evidence, we are
convinced that the approach of the Sessions Judge, while appreciating the evidence
of these two eye 13witnesses was extremely perverse.
The trial Court has also
found fault with the fact that none of the witnesses tried to stop the accused
persons when they fled. That is hardly any reason to dis-believe the
prosecution case. One of the accused persons was already facing a murder case. The
witness Virendra Kumar (PW-1) has also spoken about that. It should be seen
that the accused were viewed as bullies and, therefore, nobody might have tried
to apprehend them.
the trial Court has found fault with the fact that the other witnesses like Shiv
Kumar was not examined. That would be hardly a circumstance in favour of the defence,
particularly, when the two other witnesses were offered. It is not the quantity
but the quality of the evidence which matters.
Sessions Judge did not take into consideration the evidence of the doctor who wholeheartedly
supported the prosecution case. It is obvious from the post-mortem report that
there were ante-mortem injuries. There were 10 abraded contusions on both sides
of neck in front and just below chin. The injuries described were also serious injuries
for an 11 year old child. His hyoid bone was also found fractured. Therefore,
the fact that Deepak's death was homicidal death was obvious. He had suffered the
contusion on the back of left side below scapula and contusion on back of legs below
knee etc. which were in perfect unison 14with the evidence of the two eye witnesses.
The High Court has taken note of the medical evidence in a correct manner. At
least the injuries of the deceased read with the evidence by the eye witnesses
should have put the trial Court on guard. We must say that the trial Court had
acquitted the accused persons in a very casual manner.
most important circumstance in this case is the finding of the dead body in the
house of one of the accused persons. Surely, the dead body could not have walked
inside the house of the accused person. There was absolutely no explanation from
the accused persons, more particularly, accused Rajesh as to how the body was found
in a hanging position in the house of one of the accused. All the witnesses are
unanimous on the point that all the three accused persons went inside the house
dragging Deepak with them. This important circumstance was completely lost
sight of by the trial Court. That also can be said to be a perversity on the
part of the trial Court.
regards the argument of learned counsel for the defence that it was not certain
as to which accused actually caused the murder and, therefore, all the three accused
persons were bound to be given the benefit of doubt, it has to be said that the
argument is without any substance. It is clear that all the three accused
persons had taken part in the beating of deceased Deepak and all the accused
persons dragged him 15in the room and closed the door. Therefore, it was up to the
accused persons to explain as to how Deepak died. It is very clear that all the
three accused persons had acted with common intention of causing the death and,
therefore, all the three accused persons would be guilty with the aid of Section
34, IPC. The High Court has rightly held them guilty.
short, after examining the evidence closely, we are of the firm opinion that
the acquittal in this case was completely out of the question. The reasoning given
by the trial Court was wholly unacceptable and can safely be called perverse. The
High Court having noted these defects in the judgment of the trial Court and
the casual approach of the trial Court was justified in reversing the
acquittal. In our opinion, the appeal has no merits and must be dismissed. It
is accordingly dismissed.
No. : Criminal Appeal No.1160 of 2005
title : Rajesh Singh & Ors. Vs. State of U.P.
heard by : Hon'ble Mr. Justice V.S. Sirpurkar Hon'ble Mr. Justice T.S. Thakur4.
Judgment reserved by : Hon'ble Mr. Justice V.S. Sirpurkar
of C.A.V. : 15.3.2011
of pronouncement of Judgment : 28.3.2011
of Judgment : Reportable