State of U.P. Vs. Paras Nath Singh
& Ors  INSC 11 (15 January 1973)
CITATION: 1973 AIR 1073 1973 SCR (1) 313
CITATOR INFO :
E&D 1989 SC1335 (60)
Criminal law-Practice and procedure-Eye witnesses
relatives of deceased-No intrinsic infirmity in their evidence-If corroboration
necessary for sustaining conviction-Sentence of life imprisonment instead of
The six respondents (accused) were convicted
by the trial Court for offences under s. 302/149, I.P.C. Four of them were
sentenced to death and two to imprisonment for life on the grounds that one was
a 'budding lawyer' and the other was 15 years old. The son and daughter of the
deceased were examined as eye witnesses to the occurrence. Four persons, who
were cited as eye-witnesses by the prosecution, were given up, because, the
counsel for prosecution represented that he had reason to believe that they
would not speak the truth. They were neither examined by the trial court under
s. 540, Cr.P.C., nor as defence witnesses.
The trial court scrutinised carefully and
properly evaluated the evidence of the son and daughter, and as the son was 12
or 13 years old, applied the correct principles governing the appreciation of
the evidence of a child witness and accepted their evidence as true. The High
Court on appeal, examined the 4 witnesses given up by the prosecution, as court
witnesses. It devoted a major part of its judgment to the consideration of the
additional evidence recorded by it.
Feeling wholly unimpressed by that evidence,
the High Court endorsed the view of the prosecution that these witnesses were
given up as they were not prepared to speak the truth and even issued notice
under s. 479A, Cr. P. C. to one of.
them to show cause why he should not be
prosecuted for perjury. The High Court disagreed with the main arguments urged
on behalf of the accused for discrediting the testimony of the son and
daughter. But, the High Court acquitted the accused on the view that the son
and daughter, being closely related to the deceased and being in a sense,
chance witnesses, their evidence without corroboration did not prove the, guilt
of the accused beyond reasonable doubt.
HELD : (1) The judgment of the High Court
reversing the judgment of the trial court and acquitting the accused caused
grave miscarriage of justice. [325B-C] Once the two eye witnesses were held to
be trustworthy witnesses there was no cogent reason for not acting upon their
evidence. The fact that the other persons who were present at the spot and had
witnessed the occurrence have, without any good reason and, perhaps with
oblique motive, chosen not to state the truth in court and thereby obstructed
the course of justice, is a sound reason for accepting the testimony of the son
and daughter. To decline to act upon their testimony merely because of the
absence of other witnesses to corroborate them in court, is to defeat the cause
of justice in this case. it was wholly unreasonable for the High Court to dub
them as chance wit- nesses, as there is no material on record to support such
an observation. and the observation runs counter to the High Court's own line
of 314 reasoning earlier. There is thus absolutely no justification for the
view that their testimony leaves any scope for reasonable doubt about the guilt
of the accused.
It could not be considered that because of
their relationship to the deceased, they would spare the real assailants and
falsely implicate the accused, and in the circumstances of the case, there is
no scope for such a hypothesis. There is no general rule that the evidence of
the relations of the deceased must be corroborated for securing the conviction
of the offender. Each case is to be considered on its own facts. [325F-326C] In
the present case, there is an instrinsic ring of truth in the evidence of the
two eye witnesses. The straight forward nature of their deposition and the fact
that they were undoubtedly in, a position to, identify the assailants coupled
with the recovery of blood-stained earth from the place of occurrence leave no
reasonable doubt about the guilt of the accused. [326C-D] (2) No leniency
should have been shown to the 'budding lawyer', because, he, as a result of his
education and profession should have ,exercised a restraining influence on his
associates rather than allowed himself to be misled by them into being a party
to a gruesome murder. However, in view of the facts that (a) the murder was
committed as far back as 1968; (b) on conviction by the trial court in
September 1969, the accused were under the shadow of death;
(c) the accused were acquitted by the High
Court in May 1970; and (d) it is not possible to assign with certainty the
fatal blows to any particular accused person, the ends of justice would be
served by sentencing all the accused to imprisonment for life. [326G-H; 327A-C]
ORIGINAL APPELLATE JURISDICTION: Criminal
Appeal No. 49 of 1971.
Appeal by special leave from the judgment and
order May 18, 1970 of the Allahabad High Court at Allahabad in Criminal Appeal
No. 1947 of 1969.
O. P. Rana for the appellant.
Nuruddin Ahmad and U. P. Singh for the
The Judgment of the Court was delivered by
DUA, J.-The State of U. P., the appellant in this appeal by special leave,
assails the judgment of the Allahabad High Court dated May 18, 1970 acquitting
on appeal the six respondents in this Court who were convicted by the Court of
the first Temporary Civil & Sessions Judge, Pratapgarh on September 1,
1969, of various offences under the Indian Penal Code. The accused Paras Nath
Singh, Ramendra Pratap Singh, Hari Saran Singh and Lal Pratap Singh were
sentenced to death under S. 302 read with s. 149, I.P.C. The accused Surendra
Pratap Singh and Shiva Pratap Singh were also convicted under the said sections
but sentenced to life imprisonment. Leniency was shown to them by the trial
court because Surendra Pratap Singh was stated to be a budding lawyer and Shiv
Pratap Singh, being of tender age (15 or 16 years old), 315 was considered to
have apparently been misled by his relations. Excepting Surendra Pratap Singh
and Hari Saran Singh, the remaining accused were also sentenced to rigorous
imprisonment for one year each under S. 147, I.P.C. They were further convicted
under s. 148, I.P.C. and sentenced to rigorous imprisonment for two years each.
Accused Paras Nath Singh was in addition, sentenced to rigorous imprisonment
for six months under s. 397, I.P.C.
The relevant facts necessary for our purpose
may now be stated. The six respondents (hereinafter called the accused) were
charged with the murder of Suresh Singh on July 9, 1968 and with the theft of
his gun and cartridges along with the container. The deceased and the accused
are all Thakurs by caste residing in village Isanpur. Accused Surendra Pratap
Singh and Ramendra Pratap Singh are brothers residing in a house adjoining that
of the deceased, being thus his next door neighbours. Shiva Pratap Singh and
Lal Pratap Singh are cousins and the other accused per-sons are said to be
their associates. There was long standing enmity between the deceased on the
one hand and Ramendra Pratap Singh and his family members on the other. About
six or seven months prior to the present occurrence, Ramendra Pratap is said to
have tried to fire at the deceased on Dewali day and a case under s. 307,
I.P.C. arising out of the said incident was pending at the time of the murder
of the deceased. About five or six days prior to the murder Ramendra Pratap
Singh, Surendra Pratap Singh and one Vijai Bahadur Singh are stated to have
beaten the deceased inside his house giving rise to another case under s.
P. C. which was also pending at the time of
the murder in question. This enmity is stated to be the motive for the murder
of the deceased. Now turning to the, occurrence in question on July 9, 1968,
Suresh Singh deceased had gone to Pratapgarh on cycle for some work carrying
with him his gun and cartridges. On his way back from Pratapgarh the same
evening at about sunset when he reached Rakhaha Bazar and was on the Rakhaha
Bazar-Kandbai kachha road, all the accused persons emerged from the nearby
Nala. They surrounded their victim Suresh Singh, shouting that he should be
killed because he posed to be a great leader. The accused who were armed with
lathis, spears and farsha, assaulted the deceased with their respective
Sheela Devi, P.W. 1, daughter of the deceased
and Sachendra Pratap Singh, (P.W. 2) son of the deceased also happened to
be-returning to their village from Rakhaha Bazar where they had gone to
purchase parwal (a vegetable) for their mother who was not well. On hearing the
alarm they went towards the mala where they saw the accused assaulting their
father with lathis, spears and farsha. Several other persons, including Shiva
Pratap 5-L796Sup. C.I./73 316 Singh, Mahabir Singh, Ranmast Singh and Jagdish
Bahadur Singh were also attracted by the alarm to the place of occurrence. The
deceased fell down on receipt of injuries and the accused ran away carrying
with them the gun and container of cartridges along with its contents belonging
to the deceased. The cycle and a jhola belonging to the deceased and lying on
the spot was sent home, by Sheela Devi (P.W. 1) through one Mahabir. Sheela
Devi also sent for her mother (Smt. Sundari Devi) through the same man. The
mother arrived soon thereafter and Suresh Singh was taken on an ekka to Diwan
Mau from where he was taken in a taxi to the District Hospital, Pratapgarh.
Suresh Singh appears to have expired on his way to the hospital near village
The doctor on examining Suresh Singh informed
Sheela Devi that her father had already died and advised her to lodge a report
at the Police Station, Kotwali. She wrote out a report of the occurrence (Ex.
Ka-1) at the hospital and gong with the dead body, went to Kotwali police
station where she handed over the written report the same night at about 11.30
p.m. on the basis of which Ka-18. the formal F.I.R. was prepared. A case under
ss. 302/147/1481 149, I.P.C. was thereupon registered and all the relevant papers
sent to the police station Kandhai. As a result of the investigation, it was
considered necessary also to frame a charge against the accused persons under
s. 379 read with S. 149, I.P.C. for the theft of the gun and the cartridges
along with their containers belonging to the deceased. The foregoing is the
At the trial the only eye-witnesses deposing
to the actual occurrence were Smt. Sheela Devi, (P.W. 1) the daughter and
Sachendra Pratap Singh (P.W. 2), the son of the deceased.
P.W. 1 was about 19 years old when she gave
evidence at the trial in July, 1969 and P.W. 2 about 13 or 14 years old.
The other persons mentioned in the F.I.R. by
P.W. 1 were not produced as witnesses on the ground that they were not prepared
to depose in favour of the prosecution at the trial. P.W. 1 and P.W. 2 have
unfolded the prosecution case deposing to the incident as witnessed by them.
According to P.W. 1, she and her younger brother who had gone to Rakhaha Bazar
in the afternoon for buying Parwal while returning to their home, heard the
alarm as they reached the kachcha road. They went towards the side from which
the noise came and saw that their father was being beaten by Lalji, Chotey Lal
Sadhy and Nankoo with lathis, Hari Saran Singh with ballam and Munna who is
also called Sheo Pratap Singh, with farsha. They took her father down into the
Nala shouting, "kill the sala he was playing the Part of Netagiri very
much". After the accused had run away, P.W. 1 went near her father who.
though badly injured, was still in a position to speak. He told her and the
other persons ,who had assembled there that the accused persons had been hiding
317 inside the Nala and that they had forcibly taken him away from the road
into the Nala and beaten him. She sent her father's cycle and jhola home
through Mahabir Singh also requesting him to send her mother to the place of
occurrence. Her mother came there and after arranging for an ekka, Suresh Singh
was taken to Diwan Mau from where Suresh Singh was taken to the hospital in a
taxi. On the way Suresh Singh expired near Pipari. After the doctor had
certified death of Suresh Singh, P.W. 1 was advised by the doctor to make a
report in the Sadar Police Station. She wrote out a report in the hospital and
along with the dead body of the deceased, she went to the police station and
lodged the report in the Kotwali. Paras Nath, accused, according to P.W. 1, had
taken away with him the gun and the cartridge belt belonging to the deceased.
She had herself to go to the Kotwali to lodge the report because there was no
other adult male member left in their house. According to her, Sarvashri Ram
Pratap Singh, Krishnapal Singh, Ramesh Prasad Singh and Ruddar Pratap Singh,
Vakils, live in the neighbourhood of her village. These persons being under the
influence of the lawyers, she could not say if they would be willing to give
evidence in support of the prosecution. She was cross-examined at great length
by four different lawyers defending ,the accused persons. Sachendra Pratap
Singh, (P.W. 2), a boy who did not appear to the court to be more than 12 or 13
years of age, was first questioned by the trial court by asking him unexpected
but intelligent questions to which he gave rational and sensible answers which
impressed the court and the court came to the conclusion that the boy
understood the importance of justice and of taking oath and was fully conscious
of the desirability of speaking the truth when on oath. P.W 2 fully
corroborated P.W. 1 on all material points. He too was cross-examined at great
length by all the defence counsel.
It appears that after the examination of P.W.
1 and 2 the prosecuting counsel applied to the trial court stating that Mahabir
Singh, Shiva Pratap Singh, Ranmast Singh and Jagdish Bahadur Singh were present
in court but as the prosecuting counsel had reason to believe that they would
not speak the truth, they were not being produced as witnesses by the
prosecution. It was suggested that ;they could be examined by the court under
S. 540, Cr. P.C. if considered proper or the accused persons could examine them
in their defence, if they so liked. On this application the counsel for the
accused persons recorded a note opposing the suggestion and describing the
allegation against the witnesses as baseless.
Section 540, Cr. P.C., according to the
defence counsel was inapplicable and he also declined to examine these
witnesses in defence. The said witnesses were in these circumstances discharged
by the trial court on July 9, 1969.
318 The trial court in a very detailed and exhaustive
judgment dealing with every aspect in a very lucid manner, came to the
conclusion that P.W. 1 and P.W. 2 were both truthful witnesses and their
sincerity and honesty in speaking the truth could not be doubted. After stating
the principle governing the evidentiary value of the testimony of a child
witness, the trial court made the. following observations about the quality and
value of the evidence of P.W. 2 "He has been cross-examined at a very
great length and that too by four sets of defence lawyers repute. It is amazing
to find that despite their lengthy and cumbersome cross- examination the
witness has not been impaired.
Had he not been an eye-witness of the occur-
rence and had he been examined after tutoring he could not have remained firm
even for a single moment. Tile said witness was tried to be beguiled, tempted
and also brow-beaten but ;to my utter surprise he maintained his mental
composure throughout and did not yield any- where during the cross-examination.
Even on the most minute details the witness did not confuse and gave convincing
replies to them.
From the beginning to the end of the incident
he has successfully acquitted himself and not a single thing could be pointed
out in his statement which could be used as a weapon against him. The manner
and the method which the P.Ws. have exhibited in the witness box have left an
everlasting impression in my mind about their sincerity and truthfulness. As a
Judge of fact I am definitely of the opinion that unless truthful and honest
the P.Ws. 1 and 2 would have collapsed under the weight of this trying and
The testimony of P.W. 2 according to the
trial court was fully supported and corroborated by his sister, P.W. 1, who has
unfolded the prosecution version about the occurrence in question. The trial
court also upheld the jurisdiction for not producing the other witnesses in
court. This is what the trial court has said in this connection :
"The nature and number of injuries found
on the person of the deceased and that too in a broad day light goes to show
that the deceased was beaten mercilessly. must have been awe striking and the
occurrence it must have left an indelible impression that the accused meant
business and there was nothing which could deter them from accomplishing their
This psychoanalysis of the 319 situation too
has to be kept in mind before giving a finding about the respective versions of
the parties. Several documents have been filed in the case by the prosecution
to show that cases under sections 307, 323/ 452, I.P.C. and under sections
107/117, Cr. P.C.
Were pending at the time of occurrence
between the deceased on the one hand and the accused Ramendra and his family on
the other. In these circumstances there was nothing surprising if even on-lookers
did not dare to come forward. Further I am constrained to observe that had the
accused been on bail even the offsprings of the deceased i.e., P.Ws 1 and 2
could not. have come in the witness box to depose about facts relating to the
murder of their father and in that case the fact of even the death of the
deceased would have been enveloped in darkness.
Whatever reason may be there to it there is
no denying the fact that witnesses in the case have kept back and have avoided
coming forward. In this connection I may recall the statements of P.Ws 1, 2 and
4. Out of so many public witnesses named in the charge-sheet only P.Ws 1 and 2
could figure as eye- witnesses of the occurrence., Had they not been the family
members of the deceased even they would not have come. P.W. Inder Singh has
stated that the witnesses have been pres- surised not to come. I am very much
impressed by the statements of P,Ws 1, 2 and 4 on this $core,, Thus in the case
of the present nature no one could like to invite trouble for him by coming in
the witness box. There is not the least doubt that either because of fear or
be- cause of other influences witnesses have not liked to involve themselves in
Thus considering the evidence and the
circumstances of the case I feel that the explanation offered by the
prosecution regarding the absence of other P.Ws in the witness box has got to
be accepted. Exhibits Ka-14 and Ka-16 also lend assurance to this
November 1, 1967 made by Suresh Singh
(deceased) against Ramendra Pratap Singh and others lodged at 10.30 p.m with
respect to the attempted assault on him and firing of shots the same day at
about 6 p.m. Exhibit Ka-16 is an application by Suresh Singh, deceased, dated
November 6, 1967 made to the Superintendent of Police, Pratapgarh, in which,
after referring to the incident of November 1, 1967 when Ramendra Pratap Singh
was alleged to have fired from the upper portion of his house about 8 or 10
shots at Suresh Singh from a double barrelled gun 320 of his grandfather, Raghav
Pratap Singh, it was complained that there was a constant danger to Suresh
Singh and the members of his family at the hands of Ramendra Pratap Singh,
Krishna Pratap Singh and others mentioned therein. At this stage we consider it
proper to reproduce the nature and number of injuries inflicted on the deceased
because according to the trial court all those persons who might have witnessed
this occurrence must have been impressed by the fact that the accused meant
business and nothing could deter them from accomplishing their objective. The
follow- ing ante-mortem injuries were found on the person of the deceased
1. Lacerated wound 2" x I" bone
deep on the fore-head 1 1/2" above the right eye-brow.
2. Lacerated wound 1" x 1/4" x
scalp, deep just behind injury no. 1.
3. Abrasion 1/2" x I" on the
forehead 2" above the left eyebrow.
4. Incised wound 21" x I"' bone
deep I" behind the left ear 'directed downwards and outward-..
5. Incised wound 3" x I" muscle
deep on the left side of the face directed downwards and outwards
6. Incised wound 1" x 1/4" muscle
deep just below the left eye directed downwards and outwards.
7. Punctured wound I" x I' x 1 1/2"
over the bridge of the nose directed upwards and inwards.
8. Incised wound II"' x I" x muscle
deep on the lower part of the face below the chin.
9. Contusion I" x I' on the top of the
10. Contusion 3" x II'-' on the medical
surface of the right arm upper 1/3.
11. Contusion 3" x 2" on the back
of the right arm lower 1 /3.
12. Contusion 3" x If' on the back of
the right forearm middle 1/3.
13. Contusion 1" x 1" on the back
of the right wrist.
14. Contusion 3"' x 2" on the back
of the right hand.
15. Lacerated wound I" x I" skin
deep on the web between 'the right thumb and index finger.
16. Contusion 3" x 2" on the front
of the chest near the root of the neck.
17. Contusion 2" x I" on the front
of the right thigh mid- dle 1 / 3.
18. Contusion 2 1/2" x 1/4" on the
front of the right thigh I" below injury no. 17.
19. Contusion 3" x 1/4" on the
right thigh just below injury no. 18.
20. Contusion 3" x 1/4" on the
right thigh 1/2" below injury no. 19.
21. Contusion 3" x 1/2" on the
front of the right thigh just above the knee joint.
22. Contusion 2" x I" on the top of
the left shoulder.
23. Contusion 2" x 1/4" on the
lateral surface of the left arm upper 1 / 3.
24. Contusion 3" x I" on the back
of the left forearm upper 1 13.
25. Contusion 3" x 1 1/2" on the
right forearm lower 1/3.
26. Contusion 1 1/2" x I" on the
back of the left wrist.
27. Contusion I" x I" on the back
of the left hand.
28. Contusion 3" x I" on the front
of the left thigh middle 1/3.
29. Contusion 3 1/4" x 1" on the
front of the left thigh lower 1/3.
30. Abrasion 1" x I" on the front
of the left knee.
1. Multiple abrasion in an area of 2" x
1 I" on the front of the left leg upper 1/3.,
32. Abrasion I" x I" on the front
of the left leg upper 1/3 x 1" below injury no. 31.
33. Abrasion l"' x I" on the front
of the left leg lower 1/3.
34. Contusion 6" x 1" on the right
side of the back upper 1/3.
35. Contusion I" x I" on the right
side of the back middle 1/3.
36. Punctured wound 1/2" x I" on
the left side of the back middle 1/3 close to the mid line of the back directed
downwards and outwards.
37. Punctured wound I" x 1/4" on
the left side of the back lower 1/3 directed downwards and outwards.
Relying on the evidence of P.Ws 1, 2 and 4,
the trial court convicted the accused persons, as already noticed.
322 An appeal was preferred to the High Court
by the six accused persons against their conviction and sentence and in the
memorandum of appeal the only grounds taken were : (1) that the conviction was
bad in law; (2) that the conviction was against the weight of evidence; and (3)
that the sentence was too severe. Death sentence on four of them was also
before that court for confirmation.
The High Court after noticing the
circumstances in which the four witnesses mentioned earlier had been discharged
by the trial court, considered it necessary to examine them itself as court
witnesses. They were examined in the High Court in May, 1970. All of them
denied having been present at the place of the occurrence. When cross-examined,
they seem to us to have cut a very sorry figure and we consider it impossible
to place any reliance on ,their testimony.
Indeed, even the High Court, after a close
scrutiny of their evidence, came to the conclusion that the four witnesses did
not want to speak the truth and that they had not been withheld by the
prosecution for any oblique motive as suggested on behalf of the accused
The High Court accepted the evidence of P.Ws
1 and 2 with respect to he place where Suresh Singh had been murdered but
according to it (to quote its own words) : "The question that remains. to
be decided is whether the testimony of P.W.
1 Smt. Sheela Devi and P.W. 2, Sachendra-
Pratap Singh who are the daughter and son of Suresh Singh, can be
After holding the four witnesses examined by
the High Court on appeal to be untruthful, the High Court proceeded to
scrutinise the evidence of P.Ws 1 and 2. After a thorough and detailed
consideration of the criticism levelled against their testimony by the counsel
for the accused persons, the High Court observed :
"We have therefore come to the
conclusion that there is nothing inherently imporbable in the statement of
P.W.1 Smt. Shila Devi, and P.W.
2, Sachendra Pratap Singh. We cannot,
however, ignore the fact that they are after all the daughter and the son
respectively of the deceased Suresh Singh and are in a sense chance witnesses.
It is true that under the law there is nothing which prevents us from acting
upon-the testimony of these two eye- witnesses' and unholding the conviction of
the appellants, but rules of prudence and safety have to be taken into
Therefore, having given the matter our
anxious thought even though we hold that we find nothing improbable in the
statements of these two eye-witnesses, we, think it proper not to act on the
uncorroborated testimony of these witnesses. We, there- 323 fore, by the way of
abundant caution give the appellants the benefit of the doubt".
With these concluding observations the High
Court allowed the appeal of the accused persons and set aside, their
conviction. The High Court, however, also considered it proper to issue notice
under S. 497A, Cr. P.C. to Sheo Pratap Singh son of Birju Singh who had ,been
examined by the High Court on May 11, 1970, calling upon him to show cause why
he should not be prosecuted. for perjury for having falsely stated that he did
not live in village Isanpur and that he did not know the accused persons.
On appeal in this Court Mr. Rana appearing on
behalf (I the State of Uttar Pradesh has submitted that the High Court has gone
seriously wrong in acquitting the accused persons merely on the ground of
absence of corroboration of the evidence of P.Ws 1 and 2 when it had itself
held that there was nothing improbable in the statements of these witnesses.
The High Court has, according to the
appellant's submission, seriously erred in ignoring its own earlier conclusion
that the other witnesses dropped by the prosecution who were expected to
corroborate P.Ws 1 and 2, were not prepared to speak the truth. This was a
sufficiently cogent reason for not producing them and for placing complete
reliance on the sole testimony of P.Ws 1 and 2. The observation of the High
Court that P.Ws 1 and 2 were "in a sense chance witnesses' was wholly
unjustified and is indeed contrary to the High Court's own earlier view
accepting the testimony of P.Ws 1 and 2. On the circumstances of this case,
according to the appellant's counsel the evidence of P.Ws 1 and 2 had been
rightly accepted by the trial court and the high Court erroneously required
further corroboration for acting upon their evidence. The decision of the High
Court, it has been emphasised, erroneous as it is, has resulted in In reply,
Mr. Nuruddin Ahmad has with his usual persuasive eloquence criticised the
evidence of the two eye-witnesses, P.Ws 1 and 2. While paying to these
witnesses a high tribute for their intelligence, and presence of mind and also
while endorsing the impression of the trial court that even on the matter of
minute details P.W. 2 did not get confused by his cross-examination but gave
convincing replies to the questions, the learned counsel has argued that the
high order of intelligence of these two witnesses only serves to explain their
cleverness in putting forth a prima facie plausible story which is far from
true. According to the learned counsel these two witnesses have made up a story
about the manner in which their father met with his death with the sole object
of falsely implicating the accused persons who are their enemies. The
submission proceeds that neither was the deceased killed at the time stated by
these witnesses nor were they present 324 at the spot to witness their father's
murder. The deceased, it is suggested, had also several other enemies and his
murder was in all probability committed by some other person or persons who had
their own scores to settle with him. The children of the de' ceased who are
extremely intelligent, have very shrewdly thought of utilising this opportunity
for getting their enemies hanged. In this connection, the absence of any
mention about the presence of parwal at the place of occurrence or with P.Ws 1
and/or P.W. 2, in the F.I.R. or in the statements of either of the two
eyewitnesses has been very strongly emphasised by the counsel in support of his
suggestion that the whole story about the visit of these two children of the
deceased to Rakhaha Bazar on the evening of the day, of occurrence for, buying
parwal is false and so-must, therefore, be the story of their presence at the
time and the place of the murder.
The counsel has also laid stress on the fact
that there was no point in their going so far away from their village to buy
parwal when the same could easily have been secured from closer quarters. It
has, also been suggested that a young girl was normally. not expected to be
sent for purchasing parwal late in the evening. A passing observation was also
made to the fact that parwal were not a medicine which could urgently be
required and that the story of the witnesses' visit to Rakhaha Bazar for this
Purpose should be discarded as concocted and unconvincing. The other criticism
very strongly pressed relates to the F.I.R. This report which is detailed has
been drafted in a form which, according to the counsel, suggests that its
author has at least some know ledger of legal phraseology and of some sections
of the Indian Penal Code as also of the Criminal Procedure Code.
From this it is sought to be inferred that
P.W. 1 who claims to be its author, must have secured the assistance of someone
conversant with the drafting of such report and she must, therefore, be assumed
to have both time and opportunity of concocting a story for falsely implicating
the accused persons who were the enemies of the family. A suggestion was put to
P.W. 2, the son of the deceased, and to Head Constable Tripathi, P.W. 10, that
the report had been lodged by P.W. 1 after consulting Bhagwati Prasad but this
suggestion was' denied by them. Still another point has been forcefully urged
by the council that according to P.Ws 1 and 2 a large number of people had gone
for shopping to the Rahaha Bazar on that day and, therefore, many people would
have noticed the occurrence, if it had actually taken place as deposed by P.Ws
1 and 2. The fact that no other independent witness is forthcoming is,
according to the counsel. proof positive that the occurrence did not take place
at the time and the spot and in the manner deposed by these witnesses.
Almost all these arguments were urged in the
trial court and repelled for cogent reasons with which we are in full agreement
325 and it is, therefore, not necessary to repeat them. It is note-worthy that
the High Court also did not take a different view on the credibility of P.Ws 1
and 2. The absence of other witnesses from the witness box is satisfactorily
explained by the prosecution and after recording the evidence of these
witnesses as court witnesses, the High Court also endorsed the opinion of the
prosecuting counsel that these other witnesses were not willing to speak the
In our view, the High Court has gravely erred
in acquitting the accused persons and indeed its judgment has resulted in grave
failure of justice. The trial court had taken great pains in fully scrutinising
and properly evaluating the evidence of P.Ws 1 and 2 and after applying the
correct principles governing the appreciation of the evidence of a child
witness it has accepted the evidence of these two witnesses as true. All the
arguments urged on behalf of the accused were duly considered and repelled. The
High Court on appeal devoted a major part of its judgment to the consideration
of the additional evidence recorded by it.
Feeling wholly unimpressed by this evidence,
it endorsed the view of the prosecuting agency that these witnesses were not
produced in court because they were not prepared to speak the truth and indeed
felt constrained to issue notice under section 479A, Cr. P. C. to one of them
to show cause as to why he should not be prosecuted for perjury. It disagreed
with all the main arguments urged on behalf of the accused persons for
discrediting the testimony of P.Ws Land 2, but curiously enough, acquitted the
accused persons on the view- which we must confess is not easy to
appreciate-that P.Ws 1 and 2 being closely related to the deceased and being in
a sense chance witnesses, their evidence without corroboration did not prove
the guilt of the accused beyond reasonable doubt. We are not able to endorse
this view which seeing to us to be both unreasonable and not supportable on the
material on record. Once P.Ws 1 and 2 are held to be trustworthy, witnesses
then there does not seem to be any cogent reason for not acting upon their
evidence. The fact that the other persons who were present at the spot and had
witnessed the occurrence have, without any good reason and, perhaps with
oblique motive, chosen not to state the truth in court and thereby to obstruct
the course of justice would, in our opinion, provide a sound reason for
accepting the testimony of P.Ws 1 and 2 for sustaining the conviction of the
accused persons. To decline to act upon the testimony of these witnesses merely
because of the absence of other witnesses to corroborate them in court is to
defeat the cause of justice in this case. It is wholly unreasonable for the
High Court to dub P.Ws 1 and 2 as chance witnesses : we find no cogent material
on the record to support this observation. Indeed this, observation ignores and
to 326 an extent runs counter to the High Courts own earlier line of reasoning.
There is, we think, absolutely no justification for the view that their
testimony leaves any scope for reasonable doubt about the complicity of the
accused persons. Because of their relationship with the deceased they cannot be
considered to be inclined to spare the real assailants for falsely involving
the accused persons .and indeed in the circumstances of this case there is
hardly any scope for such a hypothesis. To us there appears an intrinsic ring
,of truth in the statements of the two eye-witnesses which disclose no
infirmity. There is no general. rule that the evidence of the relations of the
deceased must be corroborated for securing the ,conviction of the offender.
Each case depends on. its own facts and circumstances. In the present case the
straightforward nature ,of the deposition of these two witnesses and the fact
that they were undoubtedly in a position to identify the assailants of their
father coupled with the recovery of blood-stained earth from the place of
occurrence leave no reasonable doubt about the guilt of the accused persons.
The High Court has clearly taken an unreason,
able and erroneous vie which is not warranted by the material ,on the record
and has reversed the judgment of the trial court on grounds which are
manifestly fallacious and untenable.
Relying ,on P.Ws 1 and 2 and the attending
circumstances of the case we are constrained to allow the appeal and setting
aside the judgment of the High Court, convict the six respondents in this Court
for the offences they were charged with and convicted by the trial court.
The next question which arises relates to
that of sentence.
This is a matter which requires the exercise
of sound judicial discretion. After the amendment of sec. 367, Cr.P.C. in 1955,
it is no longer necessary to assign reasons for awarding the lesser penalty in
the ,case of conviction for the offence of murder. The Court is now free in its
discretion to award any one of the two sentences prescribed by S. 302, I.P.C.
The trial court had of course imposed capital sentence on four accused persons
and life imprisonment on two. Of these two, one was shown leniency because he
was a budding lawyer and the other-because of being young. We consider it
proper to record our inability to appreciate the leniency shown in the case of
a budding lawyer who, because of his education and profession was, in our
opinion, expected to exercise restraining influence on his associates rather
than allow himself to be misled into being a party to such gruesome murder.
Those who live by the law are expected to abide by the law and not violate it
by voluntarily participating in violent crimes like murder motivated by
personal animosity. His participation in the present crime should, in our
opinion, have been considered as an aggravating rather than an extenuating
It is indeed incongruous to contend that
success in legal profession by itself mitigates the culpability of the guilty
lawyer. However., since now this Court has to determine the proper sentence to
be imposed after converting the acquittal into conviction, in our opinion, in
view of the facts that (i) the murder was committed as far back as 1968; (ii)
on conviction by the trial court on September 1, 1969, the accused were
sentenced to death with the result that till their acquittal by the High Court
the shadow of death because of the capital sentence must have haunted them;
(iii) they were acquitted (though wrongly) by the High Court as far back as
and (iv) it is not possible to assign with
certainty the fatal blows on the vulnerable parts of the body of the deceased
to any particular accused person or persons, it would meet the ends of justice
if we sentence them all to imprisonment for life. We are not unmindful of the
facts that the murder was really gruesome and cowardly and the accused being
highly influential persons, had also apparently successfully influenced and
dissuaded a number of eyewitnesses from stating the truth in court, but keeping
in view all' the considerations already mentioned, we feel that the more
appropriate sentence in this case would be that of life imprisonment on all the
six respondents. The conviction and sentence for the theft of the gun as imposed
by the trial court is also restored. The sentences on Paras Nath Singh are to
be concurrent. The appeal is accordingly allowed in the terms just stated.
V.P.S. Appeal allowed.