Raghunandan Vs. State of U.P  INSC
6 (10 January 1974)
BEG, M. HAMEEDULLAH BEG, M. HAMEEDULLAH
CITATION: 1974 AIR 463 1974 SCR (3) 92 1974
SCC (4) 186
Murder--Criminal Procedure Code--Ss.162, 428
and 540--Duty of court to put essential questions--Evidence Act, s.
All the appellants were tried for various
offences under the Penal Code. The first appellant (Cr. A. 10 of 1973) was held
guilty of the offence of murder of the deceased by shooting him with a gun
while the other appellants were held guilty of offences under Ss. 147 and 148,
1. P. C. All the appellants were held guilty of offences punishable under Ss.
307 and 323 read with s. 149. The first
appellant was sentenced to death while the others to imprisonment for life. The
High Court confirmed the sentences.
Allowing the appeals in part and remitting
the cases to the High Court for disposal,
HELD : Several material points escaped
consideration by the High Court. In a case of death sentence one would have
expected a closer and a more critical scrutiny and a fuller discussion by the
High Court of the evidence in the case and of the material questions arising
for decision before it together with its decisions supported by more than what
could appear as perfunctory reasoning. [99E;100B] (1) The more important
questions emerging from a reading of the post. mortem report regarding the
contents of the stomach of the deceased, considered in the context of the
alleged time of the murder have not been discussed at all by the High Court. It
is precisely questions of this kind which, even if the prosecution or the
defence counsel omitted to put, the trial court could and should have put to
the doctor who conducted the post mortem to clear up the position. If the trial
Court had failed to consider their importance, the High Court itself could and
should have taken further expert medical evidence under Ss. 540 and 428, Cr. P.
C. on this question. [9F] (2) It is true that the ban imposed by s.. 162. Cr.
against the use of a statement of a witness
recorded by the police during investigation, appears sweeping and wide. But at
the same time, the powers of the court under s. 165 of the Evidence Act to put
any questions to a witness are also couched in very wide terms authorising the
judge "in order to discover or to obtain proper proof of relevant
facts" to "ask any question he pleases, in any form, at any time of
any witness, or of the parties. about any fact relevant or irrelevant".
The first proviso to s. 165, Evidence Act, enacting that, despite the powers of
the court to put any question to a witness, the judgment must be based upon
facts declared by the Act to be relevant, only serves to emphasise the width of
the power of the court to question a witness.
The second proviso in this section preserves
the privileges of witnesses to refuse to answer certain questions and prohibits
only questions which would be considered improper under Ss. 148 and 149,
Evidence Act. Statements of witnesses made to the police during the
investigation do not fail under any prohibited category mentioned in S. 165,
Evidence Act. If s. 162 Cr. P. C. was meant to be so wide in its sweep it could
make a further inroad upon the powers of the judge to put questions under s.
165, Evidence Act.
If that was the correct position at least s.
162, Cr. P. C.
would have said so explicitly. Section 165,
Evidence Act was already on the statute book when s. 162, Cr. P. C. was
It is certainly quite arguable that s. 162,
Cr. P. C. does amount to a prohibition against the use even by the court of
statements mentioned there. Nevertheless, the purpose of the prohibition of s.
162, Cr. P. C. being to prevent unfair use by the prosecution of statements
made by witnesses to the police during the course of investigation, while the
proviso is intended for the benefit of the defence, it could be 93 urged that,
in order to secure the ends of justice, the Prohibition, by taking into
account, it 8 purpose and the mischief it was designed to prevent as well as
its context, must, be confined in its scope to the use by parties only to a
proceeding of statements mentioned therein.
The language of s.162, Cr. P. C., though
wide, is not explicit or specific enough to extend the prohibition to the use
of the wide and special powers of the court to, question a witness, expressly
and explicitly given by s. 165, Evidence Act in order to secure the ends of
justice. A narrow and restrictive construction put upon the prohibition in s.
162 Cr. P. C. so as to confine the ambit of it to the use of statements by
witnesses, by parties only to a proceeding before the court, would reconcile or
harmonize the two provisions. and also serve the ends of justice.
Therefore s. 162, Cr.. P. C. does not impair
the special powers of the court under s. 165 Evidence Act. [98A-H] In the
instant case a person who was said to be an eye witness was not examined' by
the prosecution. But this witness was considered so important that the trial
examined him as a court witness. While some
of the prosecution witnesses stated that this witness was present at the time
and place of occurrence, the witness himself stated to the police that he was
not an eye witness to the occurrence but came there. later. This witness ought
to have been confronted by the trial court itself with his previous statement
to the police and that statement could have been proved by the investigating
officer. After that, a better appraisal of the other evidence in the case. that
was possible now could take place. The High Court, without considering or
discussing the significance of the presence or absence of this witness at the
house at the time of the occurrence, had merely observed that he also supported
the prosecution. If this witness was not really present the evidence of
witnesses who were prepared to state that he was present, though not
necessarily false about the occurrences has to be appraised less uncritically.
Emperor v. Lal Mian A. I. R. 1943 Cal, 521,
CRIMINAL APPELLATE JURISDICTION Criminal Appeal
Nos. 10 &. 11 of 1973.
Appeals by special leave from the judgment
and order dated the 28th October, 1971 of the Allahabad High Court in Criminal
Appeal, No. 351 of 1971 and Referred No. 31 of 1971.
Frank Anthony, E. C. Agrawala, M. M. L.
Srivastava and A.T.M. Sampath, for the appellants.
O. P. Rana. for the respondent.
The Judgment of the Court was delivered by
BEG. J.-The appellants Raghunandan, Ganga Sahai, Ghalendra, Khem Singh, and
Sohan Singh, in the two Criminal Appeals now before us by special leave, were
tried by a Civil & Sessions Judge of Moradabad for various offences
punishable under Sections 147 148, 302, 307, 323 and 452 read with section 149
Indian Penal Code. Raghunandan was held guilty of the offence of murder by
shooting one Sriram with a gun on 12-12-1969, at about 1 P. m., while the.
deceased was sitting in front of his cattle shed in his outer court yard and
talking to Hari Singh, a neighbour, who was also injured by gun shots. The
appellants Ganga Sahai and Sohan Singh were held guilty of Offences punishable
under section 148 Indian Penal Code while Khem Singh and Ghalendra were found
guilty punishable under Section 147 Indian Penal Code. All the appellants were
held guilty of Offences punishable under Section 307 and 323 read with Section
149 Indian Penal Code and Section 452 Indian Penal Code.- 94 But, no separate
sentences were passed against any of the accused persons for these Offences as
Raghunandan was sentenced to death under section 3O2 Indian Penal Code and the
other four appellants were sentenced to life imprisonment under section 302
read with section 149 Indian Penal Court. The High Court of Allahabad had
accepted the death reference,, and, dismissing the appeals of all the
:appellants, had confirmed their sentences.
The Trial Court as well as the High Court had
recorded concurrent findings of fact that the appellants formed themselves into
an unlawful assembly armed with a gun, ballams, and lathis, and shot Sriram and
Hari Singh, and, also injured Smt. Brahma, P. W. 2, the wife of Hari Singh, who
is said to have covered her husband Hari Singh during the attack, and, Durga
Prasad, P.W.6, the brother of murdered man. The prosecution case is also
supported by Bbai Singh, P.W.1, a brother of Raghunandan, and by Rameshwar,
P.W. 5, a resident of Village Karimpur, who was said to be passing by at the
time of the occurrence.
The appellants pleaded that they had been
falsely implicated due to ,enmity. They produced Gokul, D. W. 1, who deposed
about an ,occurrence which was alleged to have taken' place at the house of
Hari Singh in the early hours of the morning presumably of 12th of December,
1969. He stated that the cause of the occurrence was that Rohan, the brother of
Hari Singh, had abducted Smt. Rukia of Naurangabad and brought her to village
Karimpur where she was living. He asserted that her husband and other residents
of Naurangabad forming a party of ten to twelve, had come to take her away. Its
members were said to have been armed with a Gun, Ballams, and Lathis, which
they were alleged to have used against Hari Singh and the deceased Srirams and
Durga Prasad. He deposed that Sriram, Hari 'Singh, and Durga Prasad were fired
at. He stated that the Naurangabad party caught hold of Smt. Brahma and that
her husband, Hari Singh, had tried to save her. Gokul alleged that Sriram was
struck by gun shots. He suggested that Hari Singh may also have been ,similarly
injured. He stated that Durga Prasad was not hit.
The Trial Court, which had the advantage of
seeing the witnesses depose, accepted the evidence of the four eye witnesses
who included two injured persons. It rejected the story put forward by Gokul in
defence as incredible. Apart from the fact that the defence version did not
clearly explain the Ballam injury on Durga Prasad, the explanation for the gunshot
wounds on the chest, stomach, and forearm of Sriram, which had resulted in his
death, suggesting that he was the ,principal target of the attack, did not
quite fit in with the defence version. The Trial Court had also observed that
the accused had reserved their defence up to the last stage and had not
revealed it ,earlier either in the Committing Magistrate's Court or at the time
of .;applying for bail.
It is true that what seems to be the
principal motive set up by the ,prosecution helps the defence more than it
assists the prosecution case. This was that there was rivalry for election to
the office of the Pradhan of the Gram Sabha between Sriram deceased and Ganga
Sahai, 95 appellant, who was Pradhan of the village at the time of the murder.
According to the prosecution version, Sriram, who had been a Pradhan of the
village for about 8 to 10 years, was threatened with dire consequences by Ganga
Sahai if he stood again for the office. Bhai Singh, P. W. 1, had stated that,
out of fear, Sriram did not stand for election so that Ganga Sahai won an
uncontested election and became the Pradhan. If that was so, Ganga Sahai should
have felt obliged to Sriram for not contesting the election. There was no
suggestion that another election was near at the time of the occurrence or that
Sriram was conspiring to get Ganga Sahai unseated.
Other motives were also set up. Ganga Sahai
and other accused persons were said to have demolished the mend of Bhai Singh's
field and taken his land under cultivation so that Bhai Singh had complained
about it to people of his own village and other villages. It was alleged that
the accused persons formed one set and used to threaten the family of Bhai
Singh and Sriram and Durga Prasad who were said to be joint in cultivation and
mess.' It was also alleged that Sriram had gone with a friend of his, named
Sahi Ram, to Police Station Bejoi to lodge a report relating to the beating up
of Sahi Ram by Sohan Singh and Raghunandan appellants. Furthermore, Brahma, P.
W. 2, had deposed that her husband Hari Singh, who had sustained gunshot
injuries at the occurrence under consideration but had survived was threatened
by the accused persons that, if he gave evidence against them, he would be
killed. Hari Singh had actually been murdered about 7 months before Smt. Brahma
gave evidence in Court on 11. 1 1.70. The prosecution, therefore, suggested
that the appellants formed a set-of bullies and thought that they could do what
they liked to the family of Sriram, deceased, and its property. Enmity, as it
has been often observed, is a double edged weapon. We, therefore, refrain from
saying more than that there should be an attempt to determine, in such a case,
the direction in which enmities set up were more likely to operate.
If the eye witnesses could be believed it was
really not necessary to support the prosecution case by giving satisfactory
evidence of the motive to murder. The real and more important question to
decide here was whether the four alleged eye witnesses produced, out of whom
two were brothers of the deceased Sriram, one a chance witness, and the fourth,
the injured wife of a close friend of the deceased, who was also injured, were
The alleged eye witnesses no doubt seem to
have impressed the Trial Court which had the advantage of seeing them depose.
There are, however, at least two features of this case which could provide
serious grounds for suspecting the prosecution version. We now proceed to
examine these two features.
It was repeatedly emphasised by the learned
counsel for the appellant that the post-mortem examination report disclosed
that the small intestine as well as the large intestine of the deceased
contained faecal matter and were distended with gas whereas the stomach was
found empty. It was submitted before us that it was quite unnatural 96 as 60
years (found erroneously mentioned as 80 in the judgment of the High Court
before us), would not eat until 1 p.m. during the day, or, in any case, that he
would not defecate until that time during the day when there was nothing in
evidence to show that he was suffering from constipation. It was contended that
the Trial Court had uncritically and too easily accepted the explanation given
by the prosecution witnesses that the deceased alone had not eaten up to 1 p.m.
as he had a stream of visitors that morning. It is apparent from the testimony
of Durga Prasad that he and his brother-in-law Jailal, C.W. 1, who was not
produced by the prosecution (although examined as a Court witness), was also
said to be staying) at the house, and to have taken his food with Durga Prasad
before 1 p.m.
We find that although Dr. J. P. Chaturvedi,
P. W. 8, who performed the postmortem examination, and Dr. D. P.
Manchanda, who had admitted Hari Singh. into
the hospital on 13-12-1969 at 11-40 a.m, were examined at the Trial, no
question was put by either side to elicidate whether the contents of the small
intestine and the large intestine could remain in that condition until 1 p.m.
during the day assuming that Sriram was quite healthy. The postmortem
examination took place at 2-40 p.m. on 13-12-1969, and the intestines were then
found distended with gas. We do not know whether this could be their condition
at 1 p.m. on 12- 12-1969 or its effect. It is precisely questions of this kind
which, even it the prosecution or the defence counsel omit to put them, the
Trial Court could and should have, put to doctors to clear ,up the position. If
the Trial Court had failed to consider their importance, the High Court could
have and should have taken further evidence on this matter under Section 540
Criminal Procedure Code. In a criminal case, the fate of the proceeding cannot
always be left entirely in the hands of the parties. The Court has also a duty
to see that essential questions are not, so far as reasonably possible, left
unanswered. We are surprised to find, from the judgment of the High Court, that
the questions mentioned above, arising out of the post-mortem report, were not,
for some reason, even mentioned there. We find it very difficult to believe
that, in a case with a death sentence a matter of such significance, which was
noticed by the Trial Court, was not raised at all by Counsel for the
appellants. in any event, it ought to have been dealt with by the High Court
after taking appropriate additional expert medical evidence under Section 540
read with Section 428 Criminal Procedure Code if that was considered necessary
before deciding it.
Another question raised by the learned
Counsel for the appellant relates to the testimony of Jailal, the
brother-in-law of Sriram. He was said to be an eye witness.
But, he was neither mentioned in the F. I.
R., although he was said to be present at the Police Station when the F. 1.
R. was lodged at 5 p.m., nor was he produced
by the prosecution. indeed, Rameshwar, P. W. 5. had stated that he had not seen
Jailal at all there. Jailal was considered so important a witness by the Trial
Court that he was examined as a Court witness. He denied having made any
statement to the Police although it is in evidence that he did make a statement
to the Police. The Trial 97 Court had not permitted the contents of that
statement, which indicated that Jailal was not an eye witness but came there at
a time when the Corpse of Sriram was being removed, to be used to contradict
his version as a Court witness.
Smt. Brahma, P. W. 2, as well as Durga
Prasad, P. W. 6, the injured eye witnesses, as well as Bhai Singh, P. W. 1,
stated that Jailal was present at the time of the occurrence.
Learned Counsel for the appellant submitted
that Jailal's statement before the Police suggested that he had come in the
morning, long before 1 p.m., and had found that Sriram had already been
murdered. This, it is urged indicates that Sriram must have been murdered
either by Naurangabad people or by unknown persons during the night. We do not
find material on record to support the suggestion that Jailal must have reached
the house in the morning at a time when Sriram's murder had been already
committed. The Trial Court had discussed the evidence of Jailal at some length
and had opined that his name was not mentioned in the F.I.R. as be was related
to the accused persons also. That may be the reason why Jailal was distrusted.
If, however, Rameshwar, P.W.5. a chance witness, who claimed to be present, at
the time of the alleged occurrence and to have seen it, is to be believed,
Jailal was not to be seen at all at that time at the house. If Jailal was
really not present, the evidence of witnesses who were prepared to state, for
some oblique reason, that he was present, though not necessarily false about
the whole occurrence, has to be appraised less un- critically. The High Court,
without considering or discussing the significance of the presence or absence
of Jailal at the house at the time of the occurrence, had merely observed that
Jailal, C.W. 1, also supported the prosecution version.
Learned counsel for the' appellant submitted
that the testimony of Jailal could not have been accepted by the High Court
because Jailal had not been confronted with his previous statement before the
police. He urged, relying upon Emperor v. Lal Mian (1), that, even if the
statement of a witness, recorded by the Police during the investigation, cannot
be used for "any purpose" other than the ones mentioned in Section
162 Criminal Procedure Code, yet this prohobition applies only to the parties
to the proceedings and does not operate against the powers of the Court itself
when it considers the testimony of a witness to be necessary. Although, the
Trial Court considered Jailal's evidence important enough to examine him under
Section 540 Criminal Procedure Code, yet it disabled itself from testing its
worth by putting an alleged contradiction to the witness on a matter of some
importance, in the case.
It is urged by learned counsel for the
appellants that the powers of the Court to question a witness are regulated by
the special provisions of Section 165 of the Evidence Act exclusively, so that
a previous statement of the witness, who is called as a Court witness, can be
used by the Court to contradict him even if it was made to the police during
the investigation. This, it is submitted, is the effect of the special powers
of the Court under Section 165 Evidence Act.
(1) A.I.R. 1943 Cal. 521.
98 It is true that the ban, imposed by
section 162 Criminal Procedure Code, against the use of a statement of a
Witness recorded by the Police during investigation, appears sweeping and wide.
But, at the same time, we and that the powers of the Court, under section 165
of the Evidence Act, to put any question to a witness, are also couched in very
wide terms authorising the Judge "in order to discover or to obtain proper
proof of relevant facts" to "ask any question he pleases, in any
form, at any time, of any witness, or of the parties, about any fact relevant
or irrelevant". The first proviso to section 165 Evidence Act, enacting
that, despite the powers of the Court to put any question to a witness, the
judgment must be based upon facts declared by the Act to be relevant, only
serves to emphasize the width of the power of the Court to Question a witness.
The second proviso is this section preserves the privileges of witnesses to
refuse to answer certain questions and prohibits only questions which would be
considered improper under section 148 and 149 of the Evidence Act. Statements
of witnesses made to the police during the investigation do not fall under any
prohibited category mentioned in Section 165 Evidence Act. If Section 162
Criminal Procedure Code was meant to be so wide in its sweep as the Trial Court
thought it to be, it would make a further inroad upon the powers of the Judge
to put Questions under Section 165 Evidence Act. If that was the correct
position, at least Section 162 Criminal Procedure Code would have said so
explicitly. Section 165 of the Evidence Act was already there when section 162
Criminal Procedure Code was enacted.
It is certainly quite arguable that Section
162 Criminal Procedure Code doer, amount to a prohibition against the use even
by the Court of statements mentioned there.
Nevertheless, the purpose of the prohibition
of Section 162 Criminal Procedure Code being to prevent unfair use by the
prosecution of statements made by witnesses to the Police during the course of
investigation, while the proviso is intended for the benefit of the defence, it
could also be urged that, in order to secure the ends of Justice, which all
procedural law is meant to sub serve, the prohibition, by taking into account
its purpose and the mischief it was designed to prevent as well as its context,
must be confined in its scope to the use by parties only to a proceeding of
statements mentioned there.
We are inclined to accept the argument of the
appellant that the language of Section 162 Criminal Procedure Code, though
wide, is not explicit or specific enough to extend the prohibit on to the use
of the wide and special powers of the Court to question a witness, expressly
and explicitly given by Section 165 of the Indian Evidence Act in order to
secure the ends of justice. We think that a narrow and restrictive construction
put upon the prohibition in Sect on 162 Criminal Procedure Code, so as to
confine the ambit of it to the use of statements by witnesses by parties only
to a proceeding before the Court, would reconcile or harmonize the two
provisions considered by us and also serve the ends of justice. Therefore, we
hold that Section 162 Criminal Procedure Code does not impair the special
powers of the Court under Section 165 Indian Evidence Act. Consequently, we
think that the Trial Court could and should have itself 99 made use of the
statement made by Jailal during the course of the investigation. If that had
been done, it is possible that it may have affected appraisal of evidence of other
We also find that the Trial Court as well as
the High Court had brushed aside the objection that the blood recovered from
the place of occurrence was not sent for chemical examination. We think that a
failure of the police to send the blood for chemical examination in a serious
case of murder, such as the one before us, is to be deprecated. In such cases,
the place of occurrence is often disputed. In the instant case, it was actually
disputed. However, such an omission need not jeopardise the success of the
prosecution case where there is other reliable evidence to fix the scene of
The High Court had dealt with the contention
that there was some conflict between medical evidence and the evidence about
the distances from which shootings are said to have taken place. It held that,
if correctly interpreted, medical evidence corroborated the accounts of eye
But, the High Court had not similarly
discussed or dealt with the infirmities in the statements of prosecution
witnesses, which were placed before us, such as the denial by Smt. Brahma, P.
W. 2 that she went to the police station to lodge a report in respect of the
murder of Hari Singh.
It was urged on behalf of the appellants that
this deliberately mendacious denial by her was made to conceal the fact that
her report was untrue. Matters which may shake the credibility of a witness
must be taken into account although they may not be enough to discard the whole
statement of a witness.
We have indicated a number of points on
which, in a case of a death sentence, one would have expected a closer and a
more critical scrutiny and a fuller discussion by the High Court of the
evidence in the case and of the material questions arising for decision before
it together with its decisions on these supported by more than what could
appear as perfunctory reasoning. We have also indicated the rather important
question which was, surprisingly, not discussed at all by the High Court,
emerging from a reading of the postmortem ,report considered in the context of
the alleged time of the murder. We think that the High Court itself could and
should have taken further expert medical evidence, under Sections 540 and 428
Criminal Procedure Code, on this question. For the reasons already given, we
also think that Jailal, C. W. 1, ought to have been confronted by the Court
itself with his previous statement before the police and that statement could
be proved by the Investigating officer.
After that, a better appraisal of other
evidence in the case than is possible now, on the present state of the record,
could take place.
We have anxiously considered the question
Whether this is a case in which we should consider the merits of the whole case
ourselves on the evidence on record or send it back for further consideration
and decision in accordance with the law, as laid down above, either by the High
Court or by the Trial Court. We do not think that in a serious case of murder
such as the one before us, persons who were, if the prosecution case is true,
acting as utterly irresponsible and callous bullies, should be judged on the
evidence as it stands 100 without the additional evidence mentioned above by
us. We must emphasise that, whatever may be the nature of the offence or the
actions of the accused, as revealed by evidence, the accused, are entitled to a
fair trial which a well considered judgment, dealing satisfactorily with the
material points in the case, evidences. For the reasons given above. we think
that several material points. have escaped consideration by the High Court.
Consequently, we allow this appeal to the
extent that we set aside the judgment and orders of the High Court and sent
back the case to it for reconsideration and decision in accordance with law as
explained by us. No opinion which may have been expressed unwittingly by us on
questions of fact would bind the Court or affect an unfettered consideration of
the merits of the respective cases of the two sides by the High Court in
accordance with the law as laid down by us.
appeal partly allowed.
P. B. R.