Balak Ram Vs. The State of U.P 
INSC 145 (16 August 1974)
KHANNA, HANS RAJ
CITATION: 1974 AIR 2165 1975 SCR (1) 753 1975
SCC (3) 219
CITATOR INFO :
D 1976 SC2199 (9) R 1989 SC1205 (16) R 1989
SC1890 (26) R 1990 SC1185 (2) RF 1992 SC 49 (9)
Appeal against acquittal--two views of the
evidence reasonably possible--High Court, whether justified in interfering with
the order of acquittal passed by the trial Court.
Criminal Trial--Material witnesses,
non-examination of--Duty of the prosecution--Prosecution not to rely on
insufficient data for non-examining of material witnesses.
Criminal Trial--Evidence of prosecution
witnesses whose statements are recorded under sec. 164 Cr.P.C.--Appreciation of
their evidence--Court to approach their evidence with caution.
Constitution of India, 1950, Article
136--Concurrent findings of fact--Supreme Court, when can re-appraise evidence.
Code of Criminal Procedure--Section
374--Reference for confirmation of the death sentence--Duty of the High
Court--High Court to examine for itself the entire evidence independently of
Two persons, Tribeni Sahai and Radhey were
shot dead in the town of Dataganj, District Budaun. The four appellants were
tried along with two others by the learned Sessions Judge, Budaun, for various
offences in connection with the incident. Balak Ram was convicted under sec.
302 IPC and sentenced to death. He was also convicted and sentenced under sec.
337 read with sec. 149 for causing injuries to Jhilmili and Ram Prakash and
under sec. 148 IPC. The other five were acquitted of all the charges. Sentence
of death imposed on Balak Ram was confirmed by the High Court. But in the
appeal filed by the State against the order of acquittal passed by the Sessions
Court, the High Court confirmed the acquittal of Kailash, but convicted Nathoo,
Dr. R. P. Kohli and Mohd. Sayeed Khan and Danney Khan under sections 302 and
307 read with sec. 149. It further convicted Nathoo and Dr. Kohli under section
148 and Banney Khan under section 147 of the Penal Code. The three accused have
been sentenced by the High Court to imprisonment for life for their
participation in the murder of Tribeni Sahai and Radhey and concurrently to ten
years' rigorous imprisonment for causing injuries to Jhilmili and Ram Prakash.
Balak Ram Nathoo, Dr. Kohli and Banney Khan, have filed four separate appeals
by special leave of this Court.
The prosecution case was that at about 9-15
p.m. on May the 27 the six accused along with 15 or 20 of their followers went
about canvassing for them candidates put up by the Congress (0). A little
later, they went southwards through a lane which leads to the house of the
deceased Tribeni Sahai. He was having an after-dinner stroll with Radhey and as
he reached the inter-section of a cement road passing by his house and the line
by which the processionists were proceeding, the appellants who were leading
the processions started raising offensive slogans against him. Tribeni Sahai
protested and a wrangle ensued.While hot words were being exchanged, Dr. Kohli,
Banney Khan and Pearey Mian exhorted Balak Ram to fire. Balak Ram stepped out,
stood on the raised ground to the east of the lane and fired a shot at Tribeni
Sahai with a licensed pistol which he was carrying. Tribeni Sahai had sensed
danger and was trying to escape but he was hit by a bullet on the right
scapular region. Radhey who was a few paces behind Tribeni Sahai ran forward to
protect him when Balak Ram, Nathoo and Dr. Kohli fired four or five shots.
Radhey received a pistol injury on the. left back. Jhilmili and Ram Prakash who
live 2-L192SupCI /75 754 nearby came running in protest but they also received
injuries as a result of the shots fired by Balak Ram, Nathoo and Dr. Kohli.
Nathoo, like Balak Ram, was carrying a pistol while Dr. Kohli was armed with a
Jhilmili received an injury on his left thigh
while Ram Prakash was found to have a superficial burn on the right side of his
abdomen, According to the prosecution, Rajendra Kumar Misra gave information of
the incident at 4-45 p.m. at the Police Station which is about two furlongs
away. The Station House Officer. Yogendra Sharma, asked a head constable to
record the First Information Report. The S.H.O. signed the report and hurried
to the scene of occurrence. The S.H.O. claims to have taken down the dying
declaration of Tribeni Sahai in the case diary which he had taken with him
while leaving the police station. This is the second of the three dying
declarations. The first one is said to have been made to Dharam Pal, the rival
candidate of the appellant Balak Ram.
The third one was in the Budaun Hospital
before the SubDivisional Magistrate. These four appeals have been filed by
special leave of this Court.
It was contended (i) the High Court had no
sufficient reasons for interfering with the order of acquittal passed by the
Sessions Court in favour of Nathoo. Dr. Kohli and Banney Khan and (ii) the High
Court was not justified in upholding the conviction of Balak Ram and the sentence
of death imposed on him by the Sessions Court.
Dismissing the appeal of Balak Ram and
allowing the other three appeals,
HELD: (i) If the High Court has set aside an
order of acquittal the Supreme Court in an appeal under Art. 136 will examine
the evidence only if the High Court has failed to apply correctly the
principles governing appeals against acquittal. The powers of the High Court
are as full and wide in appeals against acquittal as in appeals against
conviction, but, amongst other things, if two views of the evidence are
reasonably possible the High Court ought not to interfere with the order of
acquittal passed by the trial court.[762A-C] Ram jag amd Ors. v. The State of
U.P. (1974) 4 S.C.C. 201 relied on.
An examination of the various items of
evidence on record discloses that the conclusion to which the learned Sessions
Judge came was a reasonable conclusion to come to. It cannot be denied that two
views of the evidence are reasonably possible in regard to the participation of
Nathoo, Dr. Kohli and Banney Khan. The High Court, therefore, ought not to have
interfered with the judgment of the Sessions Court in their favour. [770F-G]
(ii) In the F.I.R. Rajendra Kumar mentioned that Loki, Ganga Ram and Aryendra
had seen the incident. Neither Ganga Ram nor Loki was examined by the
prosecution and the learned public prosecutor stated that Loki had been won
over by the defence. Such a bold assertion, unsupported by any data, is
insufficient to absolve the prosecution of its duty to examine witnesses whose
evidence is necessary for unfolding its case. [764F-H] (iii)The Statements of
three prosecution witnesses were recorded under 164 Cr.P.C. soon after the
incident. The Investigating Officer said that be got the statements recorded by
way of precaution. 'Mat could be true and it would be wrong to find fault with
him merely because he got the statements of these Witnesses recorded under sec.
Nor can the evidence of a witness be
discarded for the mere reason that his statement was recorded under sec. 164.
But the High Court overlooked that the evidence of these witness must be
approached with caution. Such witnesses feel tied to their previous statements
given on oath and hive but a theoretical freedom to depart from the earlier
version. A prosecution for perjury could be the price of that freedom.
it is open to the court to accept the
evidence of witness whose statement was recorded under sec. 164 but the salient
rule of caution must always be borne in mind. That is all the more necessary
when almost all the eye-witnesses are subjected to this tying-up process.
[768B-E] 755 (iv) The powers of the Supreme Court under Article 136 of the
Constitution are wide but in criminal appeals the Supreme Court does not
interfere with the concurrent findings of fact save in exceptional
Normally the High Court is a final court of
appeal and the Supreme Court is only a Court of special jurisdiction. This
Court would not, therefore, re-appraise the evidence unless, for example the
forms of legal process are disregarded or principles of natural Justice are
violated or substantial and grave injustice has otherwise resulted. [761G-H]
Ramabhupala Reddy and Ors. v. The State of Andhra Pradesh A.I.R. 1971 SC 460
(v) Balak Ram examined two witnesses, D.W. 7
and D.W. 9 to establislh his plea of alibi but the evidence was rightly
rejected by the trial court. It is in the least degree likely that Balak Ram
who was contesting the election for Chairmanship of the Committee would be away
from the hubbub of politics on the eve of elections. All the same. the High
Court ought to have considered that evidence for what it was worth. In a
reference for confirmation of the death sentence under sec. 374 Cr.P.C. the
High Court must examine the entire evidence for itself, independent of the
Sessions Court. [772G-H] Bhupendra Singh v. The State of Punjab  3 SCR
404 and Jumman and Ors. v. The State of Punjab AIR 1957 SC 469.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 72 of 1973.
Appeal by Special leave from the Judgment and
Order dated the 22nd December 1972 of the Allahabad High Court in Crl.
A. No. 895 of 1972 and Referred No. 82 of
1972 and Criminal Appeal Nos. 25, 34-35 of 1973.
Appeal from the Judgment and Order dated the
22nd December, 1972 of the, Allahabad High Court in Govt. Appeal No. 1448 of
Frank Anthony, K. C. Agarwala, M. L.
Srivastava and E. C.
Agarwala for the appellant in Crl. A. 72 and
D. P. Uniyal, N. K. Johri and 0. P. Rana for
the respondent in Crl. A. 72/73.
M. C. Bhandari, P. H. Parekh and Mrs. S.
Bhandare for the appellant in Crl. A. No. 34 of 1973.
O. P. Rana for the respondent in Crl. A. Nos.
S. K. Bisaria for the appellant in Crl. A.
The Judgment of the Court was delivered by
CHANDRACHUD, J. On May 27, 1971 two persons called Tribeni Sahai and Radhey
were shot dead in the town of Dataganj, District Budaun. The four appellants :
Balak Ram, Nathoo, Dr. R. P. Kohli and Mohd. Sayeed Khan @ Banney Khan were
tried along with two others by the learned Sessions Judge, Budaun, for various
offences in connection with that incident. Balak Ram was convicted under
section 302 of the Penal Code and was sentenced to death. He was also convicted
and sentenced under section 337 read with section 149 for causing injuries to
Jhilmili and Ram Prakash and under section 148, Penal Code. The learned judge
acquitted the other five accused of all 756 the charges. Out of these five, we
are not now concerned with Kailash whose acquittal is not under challenge and
with Ahmed Sayeed Khan alias Pearey Mian who died during the pendency of the
proceedings in the High Court of Allahabad.
The High Court by its Judgment dated December
22, 1972 con-@ firmed the conviction of Balak Ram and the sentence of death
imposed on him under section 302 as also his conviction under section 148. The
High Court altered his conviction under section 337 read with section 149 to
one under section 307 read with section 149 of the Penal Code.
In an appeal against the order of acquittal
passed by the Sessions Court, the High Court confirmed the acquittal of
Kailash, but convicted Nathoo, Dr. R. P. Kohli and Mohd.
Sayeed Khan @ Banney Khan under sections 302
and 307 read with section 149. It further convicted Nathoo and Dr. Kohli under
section 148 and Banney Khan under section 147 of the Penal Code, The three
accused have been sentenced by the High Court to imprisonment for life for
their participation in the murder of Tribeni Sahai and Radhey and concurrently
to ten years' rigorous imprisonment for causing injuries to Jhilmili and Ram
Prakash. Balak Ram, Nathoo, Dr. Kohli and Banney Khan have filed four separate
appeals by special leave of this Court.
The incident leading to the murder of Tribeni
Sahai and Radhey arose, indisputably, out of political rivalry, the parties
involved being the Congress (R), Congress (0) and the Bhartiya Jan Sangh.
Tribeni Sahai was a sitting Member of the U.P. Legislative Assembly, elected on
the Congress, (R) ticket while the other victim Radhey is said to have been his
bodyguard. Balak Ram, Nathoo and Banney Khan belonged to the Congress (0) while
Dr. R. P. Kohli was the local President of the Jan Sangh.
The elections to the Town Area Committee of
Dataganj were scheduled to be held on May 30, 1971. Balak Ram was contesting
the election to the Chairmanship of the Committee as a nominee of Congress (0).
Dharam Pal, the rival candidate for Chairmanship was a nominee of Congress (R).
Nathoo and Banney Khan were contesting the
election for the membership of the Committee on the ticket of Congress (0).
The Jan Sangh seems to have decided to
support the candidature of Balak Ram and others who were put up by Congress
The election campaign launched by the rival
political parties led to great acrimony. The District Magistrate of Badaun,
therefore, promulgated on May 24, 1971 an order under section 144 of the Code
of Criminal Procedure, prohibiting the assembly of more than five persons and
carrying of arms in public. If defiance of this order, Balak Ram led a
procession cf some 25 persons at about 6.30 p.m. on May 27, 1971. While passing
by the house of the rival candidate Dharam Pal, the processionists raised
various slogans whereupon Dharam Pal formed a procession of his own followers.
The two processions stood facing each other at the crossing of a road but the
Station House Officer Yogendra Sharma persuaded both the parties to disperse.
757 The case of the prosecution in regard to
the main incident leading to the double murder may be stated thus : At about
9.15 p.m. on May 27 the six accused along with 15 or 20 of their followers went
about canvassing for the candidates out up by the Congress (0). A little later,
they went southwards through a lane which leads to the house of the deceased
Tribeni Sahai. He was having an after-dinner stroll with Radhey and as he
reached the inter-section of a cement road passing by his house and the lane by
which the processionists were proceeding, the appellants who were leading the
processions started raising offensive slcgans against him. Tribeni Sahai
protested and a wrangle ensued.
While hot words were being exchanged, Dr.
Kohli, Banney Khan and Pearey Mian exhorted Balak Ram to fire. Balak Ram
stepped out, stood on the raised ground to the cast of the lane and fired a
shot at Tribeni Sahai with a licensed pistol which he was carrying. Tribeni
Sahai had sensed danger and was trying to escape but he was hit by a bullet on
the right scapular region. Radhey 'Who was a few paces behind Tribeni Sahai ran
forward to protect him when Balak Ram, Nathoo and Dr. Kohli fired four or five
shots,. Radhey received a pistol injury on the left back. Jhilmili and Ram
Prakash who live nearby came running in protest but they also received injuries
as a result of the shots fired by Balak Ram, Nathoo and Dr. Kohli. Nathoo, like
Balak Ram, was carrying a pistol while Dr. Kohli was armed with a licensed
revolver. Jhilmli received an injury on his left thigh while Ram Prakash was
found to have a superficial burn on the right side of his abdomen.
According to the prosecution, Rajendra Kumar
Misra gave in formation of the incident at 9.45 p.m. at the police station
which is about two furlongs away. Rajendra Kumar Misra is the brother-in-law of
Radhey Shyam Sharma who is the brother of the deceased Tribeni Sahai. Radhey
Shyam was, at the material time, the Deputy Inspector General of Police and was
stationed at Lucknow. The Station House Officer, Yogendra Sharma, asked a head
constable to record the First Information Report. The S.H.O. signed the report
and hurried to the scene of occurrence. Rajendra Kumar stayed behind at the
police station in order to obtain a copy of the First Information Report.
Dharam Pal, who was the rival candidate of
the appellant Balak Ram for the, Chairmanship of the Town Area Committee, went
to the scene of occurrence on hearing the pistol-fire.
Tribeni Sahai is alleged to have told him
that Balak Ram had fired a shot at the instigation of Banney Khan, Pearey Mian
and Dr. Kohli. In a short while, the motor cars of Dharam Pal and Rajendra
Kumar Misra arrived at the place Where Tribeni Sahai and Radhey were lying
injured. Tribeni Saba-.
was put in the car of Rajendra Kumar Misra
and was accompanied by his wife and daughter. Radhey was put in the other car
but before the two cars left on their way to Budaun, Yogendra Sharma the S.H
.0. arrived at the scene.
He dispersed the crowd which had surrounded
the two cars.
He tried to interrogate Radhey but failed to
get any response as Radhey was unconscious. He then went to the other car and
the allegation is that he was told by Tribeni Sabai that Balak Ram had 758
fired a shot at the instigation of Banney Khan, Pearey Mian and Dr. Kohli. The
Station House Officer claims to have taken down the dying declaration in the
case diary which he had taken with him while leaving the police station.
The tow cars reached the Civil Hospital at
Budaun at 11.30 p.m. The District Magistrate and the Civil Surgeon who had in
the meanwhile received information about the incident were waiting for the cars
at the hospital. Radhey, on being taken out of the car, was declared dead while
Tribeni Sahai was taken to the Emergency Ward. As his condition was found to be
precarious the Sub-Divisional Magistrate, Sada Ram, was sent for in order to
record the dying declaration. On his arrival, Sada Ram recorded Tribeni Sahai's
dying declaration, the third in the series. Tribeni Sahai was thereafter taken
to the Mission Hospital at Barielly but he succumbed to his injury at 8.30 p.m.
on the 28.
In the meanwhile, Yogendra Sharma had
commenced the investigation. He went to the house of Tribeni Sahai and informed
the Superintendent of Police, Budaun, on trunk telephone about the occurrence.
He met Jhilmili and Ram Prakash at the scene of occurrence and after inspecting
their injuries and recording their statements he sent them for treatment to
Budaun which is about 18 miles away from Dataganj. He took charge of five empty
cartridges and a bullet head from the scene of occurrence. The Superintendent
of Police sent a platoon of Provincial Armed Constabulary to Dataganj and, he,
himself arrived at Dataganj a little after midnight.
Dr. Kohli's house is alleged to have been
searched at night but he could not be found nor was any incriminating article
discovered. At about 2.30 a.m. the same night, the Investigating Officer is
alleged to have arrested Dr. Kohli on receipt of information that he was
proceeding towards Pearey Mian's house which was near the Roadways Bus Stand.
Dr. Kohli was taken to his house and it is
alleged that his wife produced his licensed revolver from inside the Niwar of a
cot. The Investigating Officer opened the chamber of the revolver and found
that it was loaded with three live cartridges and was emanating the smell of a
freshly fired bullet. Banney Khan was arrested at 5 a.m. on the 28th Balak
Ram's house was searched but he could not be found.
On the night between the 27th and 28th May,
eleven persons were arrested by the Investigating Officer apart from Dr.
Kohli, Banney Khan and Kailash. Those persons
were arrested on information given by one Abdul Rahman that they were involved
in a conspiracy to commit the murder of Tribeni Sahai.
Balak Ram, Nathoo and Pearey Mian surrendered
respectively on 29th May, 7th June and II th June. On 1st June Balak Ram's
father surrendered in the court of the Judicial Magistrate a licensed automatic
Pistol belonging to Balak Ram.
The postmortem examination on Radhey was
performed by Dr.A.S. Gupta on 28th May. He found a circular lacerated wound 759
1/2x 3/10" cavity deep on the posterior axillary line on the left side of
the axillary pit and a confusion on the right side of the chest. Dr. Gupta
recovered a bullet from Radhey's body.
The postmortem on the dead body of Tribeni
Sabai was performed by Dr. S. Mitra on 29th May. He found on the dead body a gunshot
wound 1C x 1:C chest cavity deep below the right scapular region.
The injuries of Jhilmili and Ram Prakash were
examined by Dr. R. C. Bansal of the District Hospital, Budaun on 28th May. He
found on the person of Jhilmili a fire-arm wound of entry on the left thigh and
a wound of exit on the same thigh. On the person of Ram Prakash was found a
superficial burn 1" x 1" on the right side of the abdomen.
The licensed revolver of Dr. Kohli, the
automatic pistol of Balak Ram, the bullet which was recovered from the dead
body of Radhey and the five empty cartridges as well as the bullet head
recovered from the scene of occurrence were sent by the Investigating Officer
for ballistic tests to the Scientific Section C.I.D., Lucknow. The ballistic
expert, Shyam Narain, opined that the bullet recovered from Radhey's body was
fired from Balak Ram's pistol but that the bullet seized from the scene of
occurrence was fired from some other weapon.
The defence of the appellants, broadly, was
that they were falsely implicated on account of political rivalry. They
contended that the witnesses had given false evidence against them either
because they were friends or relatives of Tribeni Sahai or because of the
pressure exerted on them by the police at the instance, partly, of Tribeni
Sahai's brother Radhey Shyam, who was the Deputy Inspector General of Police
and a Member of the Vigilance Commission, U.P.
Balak Ram pleaded alibi saying that he was at
Lucknow from May 25. He led evidence in support of his plea of alibi, Nathoo
admitted that he was related to Balak Ram but contended that he was contesting
the election to the membership of the Town Area Committee as an independent
candidate. He also pleaded alibi saying that he had gone to Chandausi on the
morning of 27th and returned to Dataganj on May 29. He stated that he wanted to
surrender earlier but being informed that Radhey Shyam, D.I.G., had issued
orders for shooting the accused, if found, he could not surrender till June 7.
Dr. Kohli admitted that he was the President of the local unit of the Jan
Sangh, but denied that there was any personal enmity between him and Tribeni
Sahai. He denied that he was arrested at about 3.30 a.m. on the 28th May or in
the circumstances alleged by the Investigating Officer that his revolver was
handed over by his wife. He contended that while he was closinghis clinic at
about 10.30 p.m. on the 27th he was taken by a constable to the police station
on the pretext that he was wanted by the Station House Officer. While he was in
detention at the police station, the Station House Officer went to his house
and obtained his revolver from his wife. According to Dr. Kohli, Dharma Pal,
Raiendra Kumar Misra and two lawyers, Nawal Kishore and Sultain Ahmed came to
the police station and had a long 760 meeting with the Investigating Officer at
about 3 p.m. on the 28th. Those under arrest were thereafter sent to Budaun.
The two brothers Banney Khan and Pearey Mian
admitted that a civil litigation was pending between them and Tribeni Sahai on
the date of occurrence. Banney Khan admitted that he was a candidate for
election to the membership of the Town Area Committee as a nominee of Congress
(0). He stated that he was the Vice-Chairman of the Town Area Committee since
1937 and claimed that enemy candidate he had supported during the past many
years for the Chairmanship of the Committee had been successful. He alleged
that he was implicated at the instance of Dharam Pal who was contesting the
Chairmanship on the ticket of Congress (R). Like Dr. Kohli he also contended
that he was sent to Budaun at about 3.30 p.m. on the 28th.
Each of the appellants denied knowledge of
the order passed by the District Magistrate under section 144, Criminal
Procedure Code and each one denied his presence in the procession which was
taken out at about 6.30 p.m. on the 27th. Their presence in the later
procession and their participation in the incident under inquiry' was of course
denied by them.
The learned Sessions Judge, Budaun, came to
the conclusion that none of the eye-witnesses including the injured Jhilmili
and Ram Prakash could be relied upon unless independent corroboration was
,available to their testimony.
The learned Judge took the same view about
the dying declarations alleged to have been made by Tribeni Sahai.
Except for Balak Ram, the other accused were
acquitted by the learned Judge as independent corroboration was not available
to the evidence of the witnesses in regard to the part played by those accused.
In so far as Balak Ram is concerned, the learned Judge convicted him for the
murder of Tribeni Sahai and Radhey on the view that the evidence of the
eye-witnesses and the dying declarations of Tribeni Sahai were corroborated by
the opinion of the Ballistic Expert, Shyam Narain, who stated that the bullet recovered
from the dead body of Radhey was fired from Balak Ram's pistol. The learned
Judge further held that it was not clear as to who else were members of the
unlawful assembly responsible for the murders of Tribeni Sahai and Radhey but
since it was clear that there was in fact an unlawful assembly, Balak Ram was
liable to be convicted under section 148, Penal Code. The learned Judge
acquitted Balak Ram of the charge under section 307 read with section 149 in
regard to the injuries received by Jhilmili and Ram Prakash but he convicted
him under section 337 read with section 149 on the ground that his reckless act
in firing from his pistol had endangered human life and had caused hurt to
Jhilmili and Ram Prakash.
Apart from the injured Jhilmili (P.W. 1) and Ram
Prakash (P.W. 11), the prosecution examined Rajendra Kumar Misra (P.W. 13) and
Aryendra Nath (P.W. 19) as eye-witnesses to the occurrence. Rajendra Kumar
Misra who lodged the First Information Report at the Dataganj police station is
a close relative of the deceased Tribeni 761 Sahai and was at the relevant time
the President of the local unit of Congress (R). The High Court therefore felt
that he could not be regarded as an "entirely independent witness'. But
his evidence was accepted by the High Court for the, reason that it was
"corroborated by the first information report lodged by him
promptly". The prompt, lodgment of the F.I.R. was in turn held to be
corroborated by the evidence of Head Constable Jai Prakash (P.W. 2) and the
Investigating Officer Yogendra Sharma (P.W. 24). The High Court accepted the
evidence of Jhilmili and Ram Prakash who, according to it, were independent
witnesses. The two witnesses were said to corroborate each other individually
and together they were held to corroborate the evidence of Rajendra Kumar
Misra. Aryendra Nath is the sister's son of Dharam Pal who, on the ticket of
Congress (R) was contesting the election to the Chairmanship of the Town Area
The High Court therefore held that he could
not be considered as an independent witness but his evidence was accepted as it
was in "full accord' with that of Jhilmili and Ram Prakash. Finally, the
High Court accepted the three dying declarations of Tribeni Sahai as true and
voluntary observing that they provided full corroboration to the testimony of
Jhilmili, Ram Prakash and Aryendra Nath In the result the High Court accepted
the prosecution case in its entirety except in regard to Kailash and convicted
Balak Ram, Nathoo, Dr. Kohli and Banney Khan as mentioned earlier.
Broadly, the two questions which arise for
consideration are whether the High Court was justified in upholding the
conviction of Balak Ram and the sentence of death imposed on him by the
Sessions Court and secondly whether the High Court had good and sufficient
reasons for interfering with the order of acquittal passed by the Sessicns
Court in favour of Nathoo, Dr. Kohli and Banney Khan. Our approach to these two
questions has to be basically different because whereas in regard to Balak Ram
there is a concurrent finding of fact that he was responsible for committing
the murders of Tribeni Sahai and Radhey and for causing injuries to Jhilmili
and Ram Prakash, in regard to the other three appellants the two courts have
differed, the High Court having interfered with the order of acquittal passed
by the trial court in their favour.
The powers of the Supreme Court under Article
136 are wide but in criminal appeals this Court does not interfere with the
concurrent findings of fact save in exceptional circumstances. In Ramabhupala
Reddy and Ors. v. The State of Andhra Pradesh,(1) it was observed that it was
best to bear in mind that normally the High Court is a final court of appeal
and the Supreme Court is only a Court of special jurisdiction. This Court would
not therefore re-appraise the evidence unless, for example, the forms of legal
process are disregarded or principles of natural justice are violated or
substantial and grave injustice has otherwise resulted. In dealing with the
appeal filed by Balak Ram we shall have to keep this position in mind.
(1) A.I.R. 1971 S.C. 460.
762 In so far as Nathoo, Dr. the question for
consideration in interfering with the order the Sessions Court. In Ram this
Court held after a review Court has set aside an order appeal under Article 136
will Kohli and Banney Khan are concerned is whether the High Court was
justified of acquittal passed in their favour by Jag and Ors. v. The State of
U.P. (1) of previous authorities that if the High of acquittal the Supreme
Court in an examine the evidence only if the High Court has failed to apply
correctly the principles governing appeals against acquittal. It was held in
that case that the powers of the High Court are as full and wide in appeals
against acquittal as in appeal against conviction but, amongst things, if two
views of the evidence are reasonably possible the High Court ought to interfere
with the order of acquittal passed by the trial court.
It would be convenient to deal first with the
appeals filed by Nathoo, Dr. Kohli and Banney Khan who have the benefit of an
order of acquittal passed in their favour by the Sessions Court. For a proper
understanding of the case it is necessary to have a glimpse of the political
canvass of Dataganj. The deceased Tribeni Sahai, Dharam Pal who was contesting
the election to the Chairmanship of the Town Area Committee, the 79 year old
Banney Khan and Dr. Kohli who was the President of the Jan Sangh unit were
keyfigers in the Datagani Politics. The story of their doings is the not unfamiliar
tale of floor-crossing and internal splits. In the Assembly election of 1967 an
independent candidateincidentally, a retired District Judge-won on the support
of other political parties though some of these parties had put up their own
candidates. The Congress (R) candidate supported by Tribeni Sahai lost that
election and the Judge won. In the election to the Town Area Committee held in
the same year. Tribeni Sahai supported a Jan Sangh candidate as against Dharam
Pal who was put up by the Congress. Dr. Kohli, though an ardent Jan Sanghite,
supported Dhram Pal.
In the 1969 mid-term poll Tribeni Sahai won
as a Congress candidate, this time with the help of Dharam Pal. The Judge,
Harish Chandra Singh. who as a Bhartiya Kranti Dal candidate had the support of
Dr. Kohli, Banney Khan and others lost the election.
Coming nearer the date of occurrence, the
Town Area Committee elections were to be held in Dataganj on May 30, 1971.
Dharam Pal, a Congress (R) candidate for the Chairmanship of the Committee had
the support of Tribeni Sahai while Balak Ram, now under death sentence, who was
a Congress (0) candidate for Chairmanship had the support of other parties. Dr.
Kohli and Banney Khan were partisans of Balak Ram. Banney Khan was himself a
Congress (0) candidate for the membership of the Committee. The Congress (R)and
Congress (0) had each fielded 10 candidates for the 10 Committee seats. Nathoo,
aaprently an independent,candidate, was in fact a dummy candidate put up by
Congress (0) in order to provide for the possible disloyalty of its official
candidate. Nathoo is Balak Ram's brother-in-law.
(1)  4 S.C.C. 201.
763 Of Banney Khan it is said that since
1937, candidates put up by him for Chirmanship of the Town Area Committee had
won consistently, no matter which party they belonged to or which party the
rival candidates belonged toIn 1948 Banney Khan had supported 'Tribeni Sahai
for Chairmanship and the latter won. Banney Khan. was himself the Vice-Chairman
of the Committee since 1937. Dharam Pal who was the Chairman of the Committee
since 1953 had the unwavering support of Banney Khan through all these years.
They fell out on the eve of the 1971 elections.
Political differences evidently polluted the
social life of the Dataganj citizens. They carried those differences into their
private lives and their social relationship was marked by a series of quarrels
and court cases. A civil suit was filed in 1965 by Banney Khan and his brother
Pearey Mian against Tribeni Sahai and others for a permanent injunction restraining
them from realising Tehbazari dues from the market. This six year old suit was,
not surprisingly, pending on the date of the occurrence. A criminal case was
then filed against Banney Khan and Pearey Mian under section 307, Penal Code,
for a murderous assault on one Suleman whose brother Mohammad Sultan. Vakil was
an active follower of Tribeni Sahai. The case against, Banney Khan was later
withdrawn and Pearey Mian was acquitted. In 1967-68 Tribeni Sahai, had filed a
case under section 120-B, Penal Code, charging Dharam Pad, Pearey Main and
others for conspiracy to murder him. In those days Dharam Pal belonged to a
rival party., In 1970 Tribeni Sahai had filed a similar case against Pearey
Main and others accusing them of a conspiracy to murder him. On August 3, 1970
Pearey Mian had lodged report against Tribeni Sahai and his bodyguard Radhey
under section 394, Penal Code. It is obvious that a point to gain on the
political plane was enough excuse for all, these gentlemen, to involve one
another into grave charges like murder and dacoity. Dharam Pal who was strongly
supported by Tribeni Sahai in the 1971 elections for the Chairmanship of the
Town Area Committee has admitted in his evidence that in earlier days Tribeni
Sahai used to harass him with false cases. In a trial against two.persons
called Tullan and Beni under section 394 of the Penal Code, Tharain Pal had
deposed as a defence witness that Tribeni Sahai had falsely implicated those
persons as they were his supporters. Beni, in fact, was in Dharam Pal's
employment as a driver, It seems that the two accused were initially convicted
but were acquitted in appeal. Most of the cases described above seem to have
been politically motivated. The fact that such serious charges lacked a true
foundation was irrelevant to the way of life which these gentlemen bad adopted.
It is not suprising, though it is to be
regretted, that in the din of these political and personal feuds the witnesses
had a heavy commitment to factitious loyalties. When key witnesses deny the obvious,
pretend ignorance of facts within their special knowledge and give free play to
their imagination on crucial matters, pursuit of truth, 764 becomes a wild
goose chase. An the befogged trial Judge has then to discharge the unenviable
duty of seeing and hearing such witnesses.
Take Jhilmili and Ram Prakash. The fire-arm
injuries on their person establish their presence at the scene of offence but
to be present is only to have an opportunity to witness. Presence does not
,ensure truthfulness nor is it any insurance against the common human failing
to involve the innocent along with the guilty. The presence of Jhilmili and
Ram, Prakash may indeed discredit them if they were components of the
procession which marched towards Tribeni Sahai's house. The question which
requires examination is whether, as contended by the defence, they were members
of the procession and were injured accidentally when the processionists opened
fire or whether, as contended by the prosecution, they received injuries when
as disinterested bystanders they rushed to protect Tribeni Sahai.
It is surprising that the First Information
Report lodged by Rajendra Kumar Misra does not refer to the presence of either
Jhilmili or Ram Prakash. Rajendra Kumar claims to have seen the incident from a
close angle and he has mentioned in the Report the names of persons who had
seen the occurrence Jhilmili and Ram Prakash were admittedly injured in the
firing incident and witnesses have uniformly stated that there was enough light
at the scene of occurrence. Jhilmili had received a through and through bullet
injury on the thigh while Ram Prakash had received a firearm burn on his
abdomen. The question is not of the routine variety and one cannot brush aside
the failure of the first informant to refer to the two witnesses by saying that
he may not have noticed their presence. The point of the matter is whether,
having seen them, he dropped them deliberately as they were on the side of the
Rajendra Kumar Misra is himself a relative of
Tribeni Sahai, being the brother-in-law of Radhey Shyam Sharma, the brother of
Tribeni Sabai. In the F. I. R. Rajendra Kumar mentioned that Loki, Ganga Ram
and Aryendra had seen the incident.
Ganga Ram was a Bataidar of Tribeni Sahai and
sometimes he used to live with Tribeni Sahai. Arvendra is the sister's son of
Dharam Pal who as a Congress (R)candidate was contesting the election for the
Chairmanship of the Committee with the active support of Tribeni Sahai. Neither
Ganga Ram nor Loki was examined by the prosecution and the learned public
prosecutor stated that Loki had been won over by the defence. Such a bald
assertion, unsupported by any data, is insufficient to absolve the prosecution
from its duty to examine wit nesses whose evidence is necessary for upholding
A large number of persons had gathered at the
scene of offence and the Investigating Officer, Yogendra Sharma, himself
arrived within a short time. Arrangements were made to take Tribeni Sahai 765
and Radhey to Budaun in two cars but no notice whatsoever was taken' of the
presence of Jhilmili and Ram Prakash or of the injuries received by them though
they were crying in pain. Yogendra Sharma says that he asked a constable to
take them to the police station with instructions that they should be taken to
the hospital thereafter. As a matter of normal routine, they should have been
taken to Budaun along with Tribeni Sahai and Radhey especially when the two
cars of Dharam Pal and Rajendra Kumar were so readily available.
If that was thought unnecessary steps should
have been at least taken to send them to the local dispensary. Instead, they
were first sent to the police station, then to the dispensary, back to the
police Station and ultimately to Budaun hospital.
During the trial in the Sessions Court,
Jhilmili's sons, Chotey and Chironji, were sitting in the group interested in
the accused. Besides, Jhilmili's son-in-law Sia Ram and another relative Ved
Prakash were contesting the election for the membership of the Committee as
candidates of Congress (0). Jhilmili stated that he did not know which party
Sia Ram and Ved Prakash belonged to. In fact, he pretended ignorance of any
such political parties as Congress (R) and Congress (0). He had voted for Sia
Ram and Ved Prakash but said that he did not know what symbols were allotted to
Jhilmili is a secretive witness for, though
his son got employment in the Provincial Armed Constabulary after the incident,
he denied all knowledge about it and added that he was not even aware that the
son was posted at Kanpur. He also denied that he had opened a bank account two
months after the incident with an initial deposit of Rs. 1000/and stated
falsely that the account was opened prior to the incident with a deposit of Rs.
600. He stated that he had deposited a sum of Rs. 50 only in that account after
the incident but, a true copy of his bank account shows that he had deposited a
sum of Rs. 500 in November, 1971. Jhilmili was asked whether he knew that Dr.
Kohli was associated with the Jan Sangh and his answer was that since he had
not heard the name 'Jan Sangh', he could not speak of the association.
The manner in which Jhilmili claims to have
received injuries is difficult to accept. He says that he rushed to the rescue
of Tribeni Sahai after Balak Ram had fired a shot. The procession consisted at
least of six persons and an open exhortation is alleged to have been given by
Kohli and others that Balak Ram should fire.
It is impossible that Jhilmili could have jumped into the firing range.
A large part of the criticism in regard to
Jhilmili's evidence holds well in regard to Ram Prakash also. Tribeni Sabai had
filed a prosecution against Ram Prakash's father and others for conspiracy to
murder him. Tribeni Sahai had also instituted a case under section 107,
Criminal Procedure Code, against Ram Prakash's father and others. Ram Prakash
surprisingly denied knowledge as to whether the first mentioned case was
pending or not. He admitted that he was standing at the scene of offence for
quite some time after the766 incident and that he did not tell any one
including his mother that his injuries should be attended to. He saw Yogendra
Sharma arrive but did not complain to him about the injury which he had
received. Ram Prakash, like Jhilmili, made a fanciful assertion that Dr. Kohli,
Banney Khan and Pearey Man shouted together in one voice asking Balak Ram to
open fire. Realising the infirmity of that assertion, Ram Prakash made a funny
embellishment : "Banney Khan bid initially started asking Balak '.Ram earlier
Banney Khan accused had shouted the word
Balak Ram before other accused started saying. Then the sentences were
completed by all of them. All the three accused had said the same thing i.e.
'Balak Ram Maro Goli"'.
The learned Sessions Judge was right for some
of these reasons in holding that the evidence of Jhilmili and Ram Prakash could
not be accepted without independent corroboration. The High Court treated them
as independent witnesses and held that they had corroborated each other.
In fact. the High Court went a step further
and held that these two witnesses corroborated Rajendra Kumar Misra also.
Rajendra 'Kumaz is the brother-in-law of
Tribeni Sahai's brother Radhey Shyam Sharma who at the relevant time was
stationed at Lucknow .as Deputy Inspector General of Police and as a Member of
the vigilance Commission. The trial court observed rightly that the witness
,could not be disbelieved merely because he was related to Tribeni Sahai.
But it gave various reasons for not accepting
his evidence at its face value.
In the first place, the omission to make a
reference to the presence ,of Jhilmili and Ram Prakash in the F. 1. R. was not
an oversight on the part of Rajendra Kumar. The omission was deliberate because
it was not then known whether they would support the prosecution case. Jhilmili
has stated in his evidence that he had seen Rajendra Kumar coming from the
western side at the time of the incident.
Apart from this, the conduct of RaJendra
Kumar is highly unnatural. After the processionists dispersed and ran away he
did not even try 'to find out what injuries Tribeni Sahai and Radhey had
received and whether they required medical attention. He claims to have seen
The whole incident but.
on his own showing, as a mute, silent
spectator He raised no alarm. he did not go near any of the injured persons and
made a straight dash for the police station. There are also serious
discrepancies as regards the spot from which he claims to have seen the
incident. He says that he saw one incident from three or four paces east of the
north-western corner ofAryendra's house. The particular spot is said to be
about 1 8 paces from the scene of occurrence. According to Jhilmili, Ranjendra
Kumar had come only as far as the house of one Dr. Suresh. Paragraph 5 of the
Notes of Inspection made by the learned Sessions Judge shows that a person
standing in front of Dr. Suresh's house could not recognise persons standing at
the scene of occurrence. At the time ,the incident started, Rajendra Kumar
claims to have been sitting at 767 his Baithak. But neither in the F. 1. R. nor
in his police statement did we mention where exactly he was at the time when
the commotion started. In the F. 1. R. he alleged that Pearey Mian, Banney Khan
and Kailash were also among the assailants but he admitted in the Sessions
Court that these persons had not participated in the actual assault. It is
significant that the witness had not mentioned Banney Khan's name before the
Investigating Officer at all in connection with this incident and was unable to
give any satisfactory explanation of this omission.
We do not propose to dissect the question
whether the F. 1.
R. was lodged immediately as claimed by
Rajendra Kumar or whether it was lodged on the next day as contended by the
defence. The better view would, however, seem to be that it was lodged soon
after the incident though perhaps not as immediately after the incident as
Rajendra Kumar claims.
The Sessions Judge has expressed his finding
with welcome restraint in saying that the case of the defence that the F.
I. R. was not filed at the time at which it
purports to have been filed cannot be said to be "wholly unfounded."
That leaves for consideration the evidence of Aryendra who also claims to be an
eye-witness. He is the sister's son of Dharam Pal who was contesting the
election for the Chairmanship of the Committee. Dharam Pal has admitted in his
evidence that he had brought up Aryendra and that he was living with him for
about 17 or 18 years after the death of his fatherAryendra is said to have
shifted to the house of his father-in-law because his mother-in-law was all
alone in the house. That house occupies a vantage position being quite near the
scene of occurrence In the first place, there is no reliable evidence to show
that Aryendra was living in the house of his father-in-law since March, 1970 as
alleged by him. After leaving Dharam Pal's house he admittedly shifted to the
house of one Umrao Lal Halwai but he says that he lived in the house of that
man for two or three months only. The learned Sessions Judge has referred to
the voters' lists and other documents to show that it was doubtful whether
Aryendra had left the Halwai's house and was living in the house of his
father-inlaw at the material time.
Aryendra claims to have been sleeping on the
eastern roof of his father-in-law's house. It was common ground that if he were
sleeping on the western side, which was a more convenient place, he could not
have seen the incident. He explained this by saying that there used to be a dog
on the western roof to keep watch and the eastern roof had no regular staircase
making it difficult for the dog to get on there. When his statement was
recorded by The SubDivisional Magistrate under section 164 of the Criminal
Procedure Code Arvendra stated that Pearey Mian. 'Banney Khan. Dr. Kohli, Balak
Ram, Kailash and Nathoo were "also" in theHis case then was that
there were others also in the procession.In fact.he had stated then that 8 or
10 persons had stood near thedoor of 768 the house of one Uma Shanker, a
statement which he falsely denied to have made. It is not without relevance
that as many as 1 1 others were arrested on the night of the incident for
conspiracy to murder Tribeni Sahai. Finally, Aryendra has also like the other
eye-witnesses given the incredible version that Banney Khan, Kohli and Pearey
Mian exhorted Balak Ram in one voice to open fire.
It cannot be overlooked that the statements
of Jhilmili, Ram Prakash and Aryendra were recorded under section 164, Criminal
Procedure Code, in June 1971, soon after the incident. The Investigating
Officer says that he got the statements recorded by way of precaution. That
could be true and it would be wrong to find fault with the Investigating
Officer merely because he got the statements of these witnesses recorded under
section 164. Nor can the evidence of a witness be discarded for the mere reason
that his statement was recorded under section 164. But the High Court
overlooked that the evidence of witnesses whose statements are recorded under
section 164 must be approached with caution. Such witnesses feel tied to their
previous statements given on oath and have but a theoretical freedom to depart
from the earlier version. A prosecution for perjury could be the price of that
freedom. It is, of course, open to the Court to accept the evidence of a
witness whose statement was recorded under section 164, but the salient rule of
caution must always be borne in mind.
That is all the more necessary when almost
all the eye.
witnesses are subjected to this tying-up
process. Even Aryendra, the sister's son of Dharam Pal, was not thought to be
We have indicated broadly some of the more
serious infirmities in the evidence of the eye-witnesses in order toshow that
the Sessions Court was justified in taking the view that it was unsafe to act
on their evidence without corroboration. Ignoring the impact of these
infirmities, the High Court erroneously treated the witnesses as independent
and held that they had corroborated one another.
None of the four eye-witnesses was true
enough to afford corroboration to the evidence of others. Corroboration in such
cases must be forthcoming from an independent source.
The prosecution relied very strongly on the
three dying declarations alleged to have been made by Tribeni Sahai.
The first of these was made to Dharam Pal,
the second to the Investigating Officer Yogendra Sharma and the third was made
in the Budaun hospital before the Sub-Divisional Magistrate.
It is necessary to examine closely the
circumstances attendant upon these dying declarations.
Not much reliance was placed before us on the
first two dying declarations and rightly so. In regard to the oral dying
declaration alleged to have been made by Tribeni Sabai to Dharam Pal
immediately after the shooting outrage, neither Jhilmili nor Ram Prakash who
were admittedly present at the scene of occurrence all through say 769 anything
about that dying declaration. Even Aryendra who is Dhliaram Pat's sister's son
did not say that Tribeni Sahai made a dying declaration to Dharam Pal.
Surprisingly, though the investigation was otherwise prompt, the statement of
Dharam Pal was recorded by the investigating Officer on June 2, 1971 which was
six days after the incident had taken place.
The second dying declaration is alleged to
have been made to the Investigating Officer. Investigating Officers are keenly
interested in the fruition of their efforts and though we do not suggest that
any assumption can be made against their veracity, it is not prudent to base
the conviction on a dying declaration made to an Investigating Officer.
Yogendra Sharma says that while Tribeni Sahai was lying in, a car at the scene
of offence he made a statement implicating the accused. Yogendra. Sharma
produced a true copy of an entry in his case diary stating that even as he was
still in the car, he recorded the dying declaration in the case diary which he
was carrying with him. It is difficult to appreciate why, if there was time
enough to reduce the dying declaration into writing, Yogendra Sharma did not
obtain Tribeni Sahai's signature or at least the signatures of any of the large
number of persons who had surrounded the car. Rule 115 of the U.P. Police
Regulations expressly enjoins the Investigating Officer to record a dying
declaration, if at all, in the presence of two respectable witnesses and after
obtaining the signature or mark of the declarant at the foot of the
Besides, if the Investigating Officer was in
such haste that he did not even think it proper to wait ,it the police station
until the various columns on the first page of the F.I.R. were duly filled in,
it is rather difficult to believe that seized by such a pressing sense of
emergency,, he would take the case diary with him on the off chance that a
dying declaration may be in the offing.
The dying declaration (Ex-Ka-47) made by
Tribeni Sahai at the Budaun hospital was recorded by the Sub-Divisional
Magistrate Mr. Sada Ram at 11.50 p.m. Learned counsel appearing for the
appellants submitted that this dying declaration is a fabrication and must
therefore be discarded. Were not inclined to go that far. The circumstances
surrounding the dying declaration, though uninspiring are not strong enough to
justify the view that officers as high in the hierarchy as the Sub-Divisional
Magistrate, the Civil Surgeon And the, District Magistrate hatched a conspiracy
to bring a false document into existence. The Civil services have no platform
to controvert allegations, howsoever grave and unfounded. It is therefore,
necessary that charges calculated to impair their career and character ought
not to be accepted except on the clearest proof. We are not prepared to hold
that the dying declaration is a fabrication.
All the same, one must face the question
whether, in the circumstances of the case, it is safe to act on the
uncorroborated dying declaration of Tribeni Sahai.. The evidence of Dr. R. C.
Bansal who was the Medical Officer of the District Hospital, Budaun, shows
3-192 Sup.Cl/75 770 that Tribeni Sahai was in a critical condition when he
reached the hospital. Before the dying declaration was recorded, an attempt was
made to give him saline but even after making incisions on the hands and a leg,
the attempt did not succeed. Dr. Bansal has stated that Tribeni Sahai was in
"severe pain", that he was under a "great shock", that
there was "profuse bleeding" from the injury, that his respiration
was poor, that his pulse was "feeble and thready" and that the
"blood pressure was not recordable".
Dr. Bansal explained that by
"shock" he meant "a state of profound depression of the vital
processes of the body resulting from injury." It taxes one'* ordinary
experience of human affairs to accept that Tribeni Sahai thus tormented, was in
a fit mental and physical condition to make a volitional statement after he had
reached the Budaun hospital.
Quite apart from this consideration, the
dying declaration can have hardly any evidential value because Tribeni Sahai
was in the midst of friends and admirers right since the time of the incident
until the dying declaration was recorded. Dharam Pal was in his constant
company and it is not unlikely that names of political opponents like Balak
Ram, Dr. Kohli and Banney Khan were freely bandid about. The dying declaration
could then be-naturally influenced by the opinion and inferences of close
friends like Dharam Pal.
If Tribeni Sahai were to go on record as a
person of unquestioned rectitude it might, perhaps, have been possible to
approach the dying declaration a little differently. But the long lists of cases
which he had filed against the political opponents shows that he had no
compunction in pointing an accusing finger at innocent persons. Dharam Pal
himself was a victim of such machinations and even he conceded that Tribeni
Sahai used to harass him by making false charges when he was in the opposite
Therefore, we find it impossible to accept
the conclusion of the High Court that : "All the three dying declarations
of Sri Tribeni Sahai provide full corroboration to the testimony of the two
injured eyewitnesses and Aryendra that it was Balak Ram, who was responsible
for the fatal injury to Sri Tribeni Sahai and that he fired instigated by Dr. Kohli,
Pearey Mian and Banney Khan.
The aforesaid discussion of the various items
of evidence must at least yield the result that the conclusion to which the
learned Sessions Judge came was a reasonable conclusion to come to. It cannot
be denied that two views of the evidence are reasonably possible in regard to
the participation of Nathoo, Dr. Kohli and Banney Khan. the High Court,
therefore, ought not to have interfered with the judgment of the Sessions Court
in their favour.
A revolver was recovered from the house of
Dr. Kohli at the time of his arrest on the night of the incident and it is said
that the revolver emitted a foul smell. If anything, the evidence, of the
ballistic expert Shyam Narain (P.W. 14) shows that none of the five empties
recovered from the scene of offence could have been fired 771 from Dr. Kohli's
revolver, The expert was also unable to give a definite opinion that the
bullet, Ex. 25, which was recovered from a drain near the scene of offence was
fired from Dr. Kohlis revolver.
In regard to Nathoo, he is not named in the
dying declaration recorded at the Budaun hospital. What is more, his name which
was first written towards the end of that dying declaration was subsequently
scored off. Mr. Sada Ram, the Sub-Divisional Magistrate, says that he scored
off Nathoo's name from the dying declaration because Tribeni Sahai did not say
anything when Nathoo's name was read out that was fair of Mr. Sada Ram but when
Nathoo scores one more point.
The old Banney Khan is an old hand at
politics. He was Vice-Chairman of the Town Area Committee since 1937 and even
Dharam Pal has admitted that Banney Khan was a king maker.
He was 79 years old on the date of the
incident and the only evidence against him consists of that artificial
assertion that he, Dr. Kohli and Pearey Mian exhorted Balak Ram with one 'Voice
to shoot at Tribeni Sahai. Banney Khan's implication could reasonably be traced
to the personal enmity between him and Tribeni Sahai.
In the result the order of conviction and
sentence passed by the High Court against Nathoo, Dr. R. P. Kohli and Mohammad
Sayeed Khan alias Banney Khan is set aside and their appeals are allowed.
Banney Khan is on bail and he need not surrender to his bail. Nathoo and Dr.
Kohli shall be released forthwith.
That leaves us for consideration the appeal
filed by Balak Ram who has been found guilty by the Sessions Court as well as
the High Court. Mr. Frank Anthony made an impassioned plea for his acquittal
but we are unable to accept the submission of the learned counsel.
It is urged that Loki and Ganga Ram whose
names were mentioned in the F.I.R. were not examined and therefore an adverse
inference should be drawn against the prosecution;
that the relevant columns in the Inquest
Report were deliberately left blank so as, to facilitate a manipulation of
evidence, that the F.I.R. was ante-dated; that the site plan was deliberately
drawn in a vague and general manner;
that there was no immediate motive for the
offence and that the High Court had failed to consider the evidence of the
defence witnesses at all which it was its duty to consider in a reference under
section 374, Criminal Procedure Code.
The more important of these points stand
answered by what we have already said while discussing the appeals of the other
accused. But, it is necessary to add that in the first place, the other accused
had the benefit of an order of acquittal passed in their favour by the, trial
court and secondly we have only endeavoured to indicate that since the view
taken by the trial court was a reasonable view to take, 772 the High Court
ought not to have interfered with the judgment of acquittal.
In regard to Balak Ram, there is a concurrent
finding that the shot fired by him caused the death of Radhey and we see no
reason for taking a different view. The evidence in regard to the part played
by him is natural and consistent and is corroborated by the opinion of the
Such corroboration was lacking Is against
others.The evidence of the Ballistic Expert shows that the bullet (Ex.
27) which was extracted from Radhey's body
was fired from the pistol (Ex. 5) belonging to Balak Ram. Mr. Anthony made a
severe attack on the evidence of the expert and in order to show infirmities in
that evidence he read out to us various passages from "The Identification
of Firearms and Forensic Ballistics" by Major Gerald Burrard; J. S.
Hatcher's "Text B ok of Firearms
Investigation, Identification and Evidence" (5th.1946)" and Modi's
"Medical Jurisprudence and Toxicology." We have considered these
submissions but are unable to see a reason strong enough to justify a reversal
of the concurrent view taken by the two courts. The normal rule that this Court
does not reappraise evidence in such cases must apply.
Stated briefly, Mr. Anthony's contention is
that the bullet (Ex. 25) which was recovered from the scene of offence must
have been the one which after hitting Tribeni Sahai made an exit wound not
since that bullet, according to the ballistic expert, could not have been fired
from Balak Ram's pistol (Ex. 5), he cannot be held guilty for causing the death
of Tribeni Sahai. Mr. Anthony says that the evidence of the eye witnesses
stands falsified by the evidence of the expert. The difficulty in accepting
this contention is that there is no warrant for saying that the bullet Ex. 25
must be the one which passed through Tribeni Sahai's body.
Mr. Anthony spent considerable time in
showing that the striations on the bullet (Ex. 27) which was extracted from
Radhey's body are of a different pattern from the striations on the test
bullets fired from Balak Ram's pistol. The evidence of the expert has been
closely considered by the High Court and we consider their finding on this
aspect as open to no exception.
Balak Ram examined two witnesses, Shiv Govind
Singh (D.W.7) and Udainarain Singh (D.W. 8) to establish his plea of alibi but
that evidence Was rightly rejected by the trial court.
It is in the least degree likely that Balak
Ram who was contesting the election for Chairmanship of the Committee would be
away from the hubbub of politics on the eve of elections. All the same, the
High Court ought to have considered that evidence for what it was worth. In a
reforence for confirmation of the death sentence under sec.
374, Criminal Procedure Code, the High Court
must examine the entire evidence for itself, independently of the Session,
Court. (See Bhupendra Singh v. The State of Punjab,(1), and Jamman and Ors. v.
The (1)  3 S.C.R. 404.
773 State of Punjab(1). Fortunately, the
failure of the High Court to examine the defence evidence has led to no
miscarriage of justice.
Balak Ram's conviction must, therefore,
stand. On the question of sentence, there is no reason for interference.
Balak Ram was carrying a pistol and he fired
from that pistol without any provocation either from Tribeni Sahai or from
Radhey. Neither of them was armed. not even with a walking stick, and all that
Tribeni Sahai did was to ask the processionists to desist from shouting vulgar
Politics may or may not be a clean game but
no court can suffer with equanimity such flagrant defiance of law by members of
political parties, whatever their colour or creed. They must know that it will
not pay to carry pistols in processions for being used as weapons of offence
against political rivals. Accordingly, we confirm the order of conviction and
the various sentences including the sentence of death imposed on Balak Ram and
dismiss his appeal.
V. M. K. Appeal dismissed.
(1) A.I.R. 1957 S.C. 469.