State of U. P. V. Hari Prasad &
Ors  INSC 232 (6 December 1973)
BEG, M. HAMEEDULLAH
CITATION: 1974 AIR 1740 1974 SCR (2) 588 1974
SCC (3) 673
R 1976 SC 980 (9) D 1987 SC1222 (13) D 1992
SC 214 (10)
Penal Code-murder-Motive for murder.
There ware disputes over land between the
complainant and the party of the amused, all of whom were connected inter se.
The deceased was a traditional priest, both of the complainant as well as of
the accused. All the accused were on friendly terms with the deceased. On the
day of the occurrence the deceased priest and his mother were staying with the
complainant as his guests The complainant and sofa, members of his family were
sleeping on one side of the terrace of his house, the priest and few others
were sleeping on another side, while the complainant's servant and some others
were sleeping yet on another portion of the terrace of the am, house. While one
group of five accused committed the murder of the servant of the complainant,
the second group of five murdered the priest and caused injury to his mother.
The witnesses claimed that they identified the accused in the light of the
lantern which was alleged to be hanging by a pole four or five feet high.
The sessions Judge held that the 10 accused
formed unlawful assembly for the purposes of committing the murder of the
complainant but by mistake committed the murder of the priest and the servant.
Five of the accused belonging to the village were sentenced to death while the
others were sentenced to imprisonment for life. The High Court acquitted all
Dismissing the appeal of the State to this
HELD : (1) The High Court was right in the
view that the occurrence took place under darkness and that in the absence of
any light none of the prosecution witnesses could have identified the culprits
and that the existence of the lantern was open to grave doubt. If the pattern
was burning just near the place where the priest was sleeping it is difficult
to hold that the murder was committed through an error mistaking him to be the
complainant. The accused had no motive to assault the priest and case injury to
his mother which tended to show that they had not participated in his murder.
[593F; 592B and D] (2) If the various eye witnesses were able to identify the
accused in the light of the lantern the accused could have been able to
identify the victim. [592E]
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No.215 of 1970.
Appeal by special leave from the judgment and
order dated the 12th May, 1970 of the Allahabad High Court Lucknow Bench at
Lucknow in Criminal Appeal Nos. 35 and 36 of 1970.
O. P. Rana, for the appellant.
A. K. Gupta, for the respondents.
The Judgment of the Court was delivered by
CHANDRACHUD, J.-As criminal cases go, this is an interesting case in the sense
that it offers for solution a riddle of many facets. And since many answers
reasonably come to mind, the accused would appear to be entitled to the benefit
of that perplexity. The monsoon night of August 27, 1968 was dark, so dark
indeed that the Sessions Court which sentenced five of the accused to death and
the remaining five to 589 life imprisonment made a finding that "it is an
admitted case that without light it was not possible to identify the
assailants". Witnesses usually place torches in the hands of dacoits and
though the motive of the crime in this case was not burglary, a faint attempt.
was made by some of the witnesses to show that, on occasions, a few of the
accused had flashed their torches at strategic stages. But that part of the
case is clearly unworthy of belief. And so, the main.question in this appeal is
whether a lantern was burning at the scene of offence, lantern hanging by a
pole four or five feet high. Witnesses claim that they identified the accused
in the light of that lantern.
The case is riddled with these mysteries Why
did the accused murder Vishwanath Panda, their traditional family priest with
whom they were on friendly terms and who, with his mother Birja, had come on
the 27th evening to stay with the complainant Kanahaiya Bux Singh as a guest?
The answer made by the prosecution is that it is a sorry case of mistaken
identity; the accused wanted to murder the complainant but mistook Vishwanath for
him, both being of the same colour, size and age, Why did the accused assault
Birja whose husband first, and after his death her son was their priest? The
explanation offered is that the accused wanted to terrorise her lest she raised
an alarm. If the common intention of the accused was to commit the murder of
Kanahaiya Bux Singh why did they allow him to escape under their very noses ?
They were ten strong. It is suggested that on seeing the assault on Vishwanath,
Kanahaiya Bux Singh escaped into the nearby Chhappar, along with his brother
kishan Pal Singh and his sister Chandrawali. They covered themselves with old
clothes lying in the Chhappar, but kept an opening for the eyes so as to be
able to see the incident from the beginning to the fall of the curtain. Why was
the complainant's servant Ram Gopal murdered? No ex- planation is forthcoming.
And if the complainant and his family were the real target, how could the
complainant's brother Bhagwan Bux Singh, his mother Ram Dulari and her sister
Raja Munni escape with no more than simple, superficial injuries? This is not
to say that even if the witnesses are truthful, the prosecution must fail for
the reason that the motive of the crime is difficult to find.
For the matter of that, it is never incumbent
on the prosecution to prove the motive for the crime. And often times, a motive
is indicated to heighten the probability that the offence was committed by the
person who was impelled by that motive. But, if the crime is alleged to have
been committed for a particular motive, it is relevant to inquire whether the
pattern of the crime fits in with the alleged motive. if the motive, here, was
directed against Kanahaiya Bux Singh and his family, how strange it is that
Kanahaiya Bux Singh his sister Chandrawali and his brother Kishan Pal Singh
should have been allowed to, escape unscathed when they were within the easy
reach of the accused; and how strange again that Bhagwan Bux, Ram Dulari and
Raja Munni should escape as if through a passing household scramble. The
accused, according to the prosecution, pooled their strength to murder a
foe-Kanahaiya Bux Singh-but murdered through mistake a 'friend Vishwanath
Panda-and for no apparent reason, an innocent servant. Ram Gopal.
12--602 CI/74 590 The incident leading to this
appeal took place at about 11.30 p. m. on August, 27, 1968 in the village of
Kunwarpur, district Lucknow. kunwarpur is a tiny village consisting of but ten
houses. The complainant, Thakur Kanahaiya Bux Singh, lived with his family in
one house, while three houses were in the occupation of five out of the ten
accused: Badlu, Manohar, Chhotey Lal, Jagannath and Dhaniram. The remaining
five belonged to neighbouring villages.
There were disputes between the complainant
and one Bindra Ahir over a plot of land, which led to proceedings under
sections 107 and 117, Criminal Procedure Code. One of the accused, Manohar, is
Bindra's son, two of them are Bindra's brothers, two are his cousins while
three are his brothers- in law. In one way or another, all the accused are.
connected inter se.
The complainant lived in a spacious house and
had a fairly large family. On the 27th evening, Vishwanath Panda and his mother
Birja arrived at the complainant's house on one of their routine visits to the
'jijmans'. Vishwanath's father was a family priest of the complainant and after
his death, Vishwanath took up that mantle. Birja used to accompany Vishwanath
on his visits to the patrons. It is of significant relevance that Vishwanath's
father and thereafter lie 'himself were also family priests of the accused
belonging to Kunwarpur.
The terrace over the complainant's house is
divided into separate portions which are described in these proceedings as so
many roofs. On the night of the 27th the complainant, his brother Kishan Pal
Singh and his sister Chandrawali were sleeping on the roof situated in the
north-western corner of the house. Vishwanath Panda, his mother Birja Rama
Dualri the mother of the complainant, and her sister Raja Munni were sleeping
on the roof situated in the north-east corner, on the south-west were sleeping
Bhagwan Bux, a twelve-year old brother of the complainant and Ram Gopal. a
The case of the prosecution is that at about
11.30 p, m. on August 27, the ten accused climbed to the roof of the complainant's
house by placing a ladder on the south-eastern side. The accused divided
themselves into two groups: five of them, namely Badlu, Manohar, Chhotey Lal,
putti Lal and Hira Lal went to the place where Vishwanath Panda, Birja, Ram
Dulari and Raja Munni were sleeping. This group ,committed the murder of
Vishwanath and caused injuries to the three ladies. The other group comprising
Dhani Ram, Jagannath, Daya Shanker, Mohan Lal and Hari Prasad went to the place
where Ram Gopal and Bhagwan Bux Singh were sleeping. This group committed the
murder of Ram Gopal and caused injuries to Bhagwan Bux Singh', Kanahaiya Bux
Singh, his brother Kishan Pal Singh and his sister Chandrawali who were
sleeping on the north-western part of the roof escaped stealthily to a Chappar
and concealed themselves behind the old clothes lying therein. It is alleged
that a lantern was burning near the place where Vishwanath was sleeping and the
accused were identified in the light of that lantern by Kahahaiya Bux 591
Singh, Chandrawali, Kishan Pal Singh, Birja, Raja Munni, Bhagwan Bux Singh and
Ram Dulari. These, respectively, are prosecution witnesses 1 to 5, 7 and 8.
Vishwanath received two formidable incised
injuries on his head and a long linear cut on his chest. On the person of Ram Gopal
were found 17 incised injuries, a linear cut and a contusion. Birja received 3
incised injuries , a lacerated wound and an abrasion. Almost all of these were
Ram Dulari had three incised injuries on her
person, one being muscle-deep and the other bone-deep. Raja Munni received a
muscle-deep incised injury behind her right ear.
Bhagwan Bux Singh had one incised injury on
The complainant lodged the First Information
Report at the Itaunja police station through the son of a Chaukidar at about
9.15 a.m. on the 28th. The names of all the accused are mentioned therein
together with the weapons wielded by them on the previous night.
The learned Sessions Judge accepted the
evidence of the eye- witnesses and held that all of the ten accused had formed
an unlawful assembly with the common object of committing the murder of
Kanahaiya Bux Singh and of causing hurt to the other members of his family,
that they committed the murder of Vishwanath Panda, mistaking him for Kanahaiya
Bux Singh and that they also committed the murder of Ram Gopal. The five
accused belonging to Kunwarpur were sentenced by the learned Judge to death
while the other five were sentenced to imprisonment for life. Varying sentences
were also imposed on the accused for the comparatively minor offences.
In appeals Nos. 35 and 36 of 1970 filed by
the accused, the High Court of Allahabad (Lucknow Bench) has set aside the
order of conviction and sentence and has acquitted all the accused The State of
Uttar Pradesh has filed this appeal by special leave against that judgment. One
of the accused, Putti Lal, died during the pendency of this appeal.
The judgment of the High Court is perhaps
open to the charge that, unconventionally, it has taken into consideration the
broad features of the case without discussing separately the evidence of each
one of the eyewitnesses. The judgment would have been of greater assistance to
us if the High Court had referred to the main points in the evidence of the
important witnesses, but in view of the rather peculiar facts of the case we
are not prepared to say that the method adopted by the High Court has caused
failure of justice.
The fate of the entire case depends on the
question whether a lantern was burning near the place where Vishwanath Panda was
sleeping. it is in the light of that lantern that the several witnesses are
alleged to have identified the respondent. Having considered the evidence of
the various witnesses we are of the view that the High Court was right in
coming to the conclusion that the existence of the lantern is open to grave
The respondent had no motive whatsoever for
committing the murder of Vishwanath or for causing injuries to his mother
592 Vishwanath's father, and after his 'death
Vishwanath himself, was the priest of the group of accused who committed his
murder. It is said that Vishwanath was murdered through an error as the accused
who assaulted him mistook him for the complainant, Kanahaiya Bux Singh. If the
lantern was burning just near the place where Vishwanath was sleeping, it is
difficult to appreciate how such a mistake could have been committed. It is
urged that Vishwanath and the complainant were of the same age and complexion
and since Vishwanaths' face was away from the lantern, the accused must have
mistaken him for the complainant. Assuming for the sake of argument that such a
mistake was initially committed, there is no reason why the five accused should
continue to assault Vishwanath after they had discovered their mistake. Birja
has stated in her evidence that she woke up immediately after the first blow
was given to Vishwanath and she asked the accused imploringly as to why they
were beating their own Panda.
Birja says that thereafter the five accused
not only conti- nued to assault Vishwanath but they also assaulted her,
knocking out her teeth in the process. This, is our opinion, clearly shows that
Vishwanath was not assaulted through an error or an oversight. The accused
evidently had no motive to assault him which tends to show that they had not
participated in the murder of Vishwanath.
We also find it difficult to believe that
though a lantern was burning just near the place where Vishwanath was sleeping,
the accused were unable to identify him. They knew Vishwanath intimately and it
is highly unlikely that they would commit a mistake of such a grave nature.
Indeed, if the various eye-witnesses were able to identify the accused in the
light of the lantern, the accused should have been able to identify Vishwanath.
The case of the prosecution is that the real
target of the accused was the complainant Kanahaiya Bux Singh. if that be so it
seems to us surprising that though he was sleeping on one of the roofs, none of
the accused should have made any effort to follow him into Chappar or to trace
him in any other part of the house after Vishwanath and Ram Gopal were done to
death. Kanahaiya Bux Singh his, brother Kishan Pal Singh and his sister
Chandrawali have told a story which strikes us as highly imaginative. All the
three claim that they walked into the Chappar, covered themselves with old
clothes, kept their eyes uncovered and saw the entire incident through small
slits. If at all the complainant and the other two persons were sleeping on the
roof they must have run away to a safe distance. But the greater probability is
that this group was sleeping on the ground floor of the house and not on the
roof at all. Kanahaiya Bux Singh's wife, his daughter and Chandrawali's
children were admittedly sleeping on the ground floor. That eliminates the possibility
that the incident was witnessed by Kanahaiya Bux Singh, Chandrawali and Kishan
Learned counsel for the State has placed
great reliance on evidence of Vishwanath's mother Birja. He contends that Birja
is an independent witness, that she has no motive for implicating the 593
accused falsely and that her evidence in regard to the identification must be
accepted as true. Birja undoubtedly is an independent _witness but if there was
no lantern on the roof, she could not have possibly identified the accused. The
judgement of the learned Sessions Judge contains a statement. that it was an
admitted position that if there was no lantern burning, it was not possible to
identify the assailants. It seems that on the next morning, the large crowed of
neighbours which gathered at the scene of offence ventured into the usual
speculative guesses and Birja, having lost her son, readily believed that what
was guessed was true. That explains why Birja persuaded herself to say that
Kanahaiya Bux Singh, Chandrawali and Kishan Pal Singh were sleeping on the roof
though, as indicated above, the greater probability is that they were sleeping
on the ground floor.
It is important in this connection that the
First Information Report contains a statement that Birju Pasi, Ganeshi Pasi and
several others had responded to the alarm raised by the members of the
complainant's family. In the Sessions Court the complainant stated that
immediately after the occurrence, Birju and Ganeshi came to his house and that
he had narrated to them what had happened. None of these persons has been
examined by the prosecution and no reason was shown as to why they were not
Learned counsel for the State argued that it
was open to us to examine the evidence apart from the question whether
Vishwanath was assaulted through mistaken identity. We are unable to accept
this argument. The very foundation of the prosecution case is that the accused
had a motive to commit the murder of the complainant, that they mistook
Vishwanath for the complainant and that Vishwanath was murdered as a result of
this unfortunate mistake. It is not open to the prosecution to ask the court to
discard the very substratum of their care and to construct a new theory founded
on a hypothesis presented for the first time before us.
We are therefore in agreement with the view
taken by the High Court that the occurrence took place, under cover of darkness
and that in the absence of any light, none of the prosecution witnesses could
have identified the culprits.
We therefore confirm the order of acquittal
under which the accused have been given the benefit of doubt and dismiss this
appeal. The bail bonds shall be cancelled and if any of the accused are in jail
they shall be set at property.
P.B.R. Appeal dismissed.