State of U.P. Vs. Pussu @ Ram Kishore
[1983] INSC 75 (2 June 1983)
VENKATARAMIAH, E.S. (J) VENKATARAMIAH, E.S.
(J) ERADI, V. BALAKRISHNA (J)
CITATION: 1983 AIR 867 1983 SCR (3) 294 1983
SCC (3) 502 1983 SCALE (1)655
CITATOR INFO :
R 1988 SC2154 (9)
ACT:
Penal Code-Section 302-High Court-If could
conduct a mock scene of occurrence in the Court.
Right of self-defence-Aggressor-If could
claim right.
Acquittal of one of two accused-If would bar
conviction of the second.
HEADNOTE:
The prosecution case against the
accused-respondent was that when the deceased and his wife were returning home
from their field, he and the co-accused armed with a gun and a country-made
pistol fired at the deceased causing him injuries, that some passersby,
including the two eye witnesses, overpowered the respondent but that he escaped
from their hold and ran towards the co-accused who then was standing at some
distance, snatched the pistol from his hand and fired at the deceased while he
was being carried towards the village. As a result of this shot the deceased
was killed instantaneously and one of the witnesses sustained injuries.
The defence version, on the other hand, was
that on the date and time of the occurrence when the two accused were going out
of the village the deceased, his servant and the injured witness assaulted them
and on hearing their cries, the respondent's father fired at the deceased in
self- defence and that this had resulted in the death of the deceased and
injury to the witness.
The trial court found him guilty of the
offence punishable under section 302 I.P.C. and sentenced him to death and the
co-accused with imprisonment for life.
Before the High Court the argument for the
respondent was that since the injuries on the person of the witness were superficial,
he could have been fired at only from a long distance and being an aged man of
60 years, he could not have run and caught hold of the respondent before the
respondent could reload his gun. To test the capacity of the witness to run and
to assess the time taken in reloading a gun, the High Court conducted an
experiment by asking the witness, who was present in the court, to move briskly
to a certain distance. A young lawyer present in the Court was asked to unload
and reload a gun exactly of the same make as the gun used by the respondent. On
the basis of this experiment the High Court came to the conclusion that 295
even if the witness, after receiving gunshot injuries had run some distance
towards the respondent; he could neither have caught hold of him nor could he
have prevented him from reloading his gun. Disbelieving the prosecution story,
the High Court acquitted both the accused.
The State's Special Leave Petition against
the judgment of the High Court was granted only with respect to the respondent.
On the question whether the High Court was
correct in conducting the experiment that it did and in coming to the
conclusion that the respondent was not guilty of the offence of murder.
Allowing the appeal,
HELD: The procedure of conducting an
experiment in Court two years after the incident with the aid of a young lawyer
(about whose proficiency in handling a gun there is no authentic evidence) who
was asked to handle a different gun altogether and using the conclusion based
on that experiment to reject the truth of the evidence of the eye witness, was
highly irregular. The High Court has not addressed itself to the degree of
efficiency-or inefficiency-of the respondent in handling a gun. The time taken
by any person to reload a gun depends upon several factors, including the
condition of the gun and the surcharged atmosphere created by the firing bout
which may have preceded the time of reloading the gun. [301 F-H] Ordinarily,
this Court would not interfere with the judgment of acquittal on mere
re-appreciation of evidence.
But if there are glaring infirmities in the
judgment of the High Court resulting in miscarriage of justice it is the duty
of this Court to interfere. [309 F-G] In the instant case the High Court was
wrong in conducting the experiment carried out by it at the hearing of the
appeal. Having been impressed by its result it first rejected the evidence of
the eye witness on trivial omissions which would not affect the credibility of
the prosecution version on imaginary grounds. From the evidence it is obvious
that the two accused were armed with fire arms and were the aggressors. On a
careful reading of the evidence, it is clear that the father of the accused-
respondent, out of love and affection towards his son, tried to shield him.
[306 F-G] The plea of self-defence cannot be accepted. A person who was an
aggressor and who sought an attack on himself by his own aggressive attack
cannot rely upon the right of self-defence if in the course of the transaction
he deliberately kills another whom he had attacked earlier.
Having regard to the nature of the weapon
used, the act by which death was caused by the respondent was done with the
intention of causing death and there were no extenuating circumstances which
would mitigate the offence committed by him. [309 C-D] State of Punjab v. Jagir
Singh & Ors. [1974] 1 S.C.R. 328; Shivaji Sahebrao Bobade & Anr. v.
State of Maharashtra [1974] 1 S.C.R. 489 followed.
296 The trial court was right in convicting
the respondent.
The acquittal of the co-accused did not
effect the prosecution case against him. There is no legal bar for convicting
the respondent alone in this case on the facts and circumstances of the case.
The principle of issue estoppel is inapplicable here. [309 D-E]
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 384 of 1974.
Appeal by Special leave from the Judgment and
Order dated the 24th October, 1973 of the Allahabad High Court in Crl. Appeal
No. 710 of 1973.
Dalveer Bhandari, H.M. Singh & Ranbir
Singh for the Appellant.
R.K. Garg, V.J. Francis & Nikhil Chandra
for the Respondent.
The Judgment of the Court was delivered by
VENKATARAMIAH, J. It was about 5.30 P.M. on October 15, 1971. Bankey Lal son of
Jang Bahadur Singh and his wife Chandra Kali were returning home from their
'Khalihan' (threshing floor) which was situated towards the north of their
village Kishunpur Chirai. As they came near the village they were met by Pussu
alias Ram Kishore and his brother-in-law Sheo Rakhan. Pussu was armed with a
licensed gun of his father Jia Lal and Sheo Rakhan with a country made pistol.
They both fired at Bankey Lal causing him injuries. Chhatrapal and Gaya Prasad
who were going that very way towards the village saw the occurrence and asked
Pussu and Sheo Rakhan to desist from firing and also tried to stop them from
continuing to fire. Pussu fired with the gun towards Chhatrapal who in spite of
being fired at tried along with some others who were there to catch hold of
Pussu and to snatch the gun from his hands. As Pussu could not reload the gun
he assaulted those who tried to catch him with the butt of the gun. Gaya Prasad
was, however, able to snatch the gun from the hands of Pussu after delivering
few blows with his lathi on the head of Pussu. Pussu suddenly managed to escape
from the hold of the witnesses and ran towards Sheo Rakhan who was standing
near a mango tree with his country made pistol which he was not in a position
to open and reload in spite of his attempts. In the meantime the witnesses were
carrying the injured Bankey Lal towards the village and when they came near a
pipal tree, Pussu ran towards them 297 with the country made pistol which he
had reloaded by then and fired again at Bankey Lal and killed him
instantaneously. This in brief is the prosecution case.
The defence version appears to be that on the
date and at the time of the occurrence Pussu and Sheo Rakhan were going towards
the 'Bhagwa Talab' near their village and on the way they came across Bankey
Lal, his servant Nanhoon and Chhatrapal. These three persons surrounded both
Pussu and Sheo Rakhan and began to assault them. On hearing their cries Jialal,
the father of Pussu ran towards them with his licensed gun and fired in self
defence at Chhatrapal and Bankey Lal causing injuries to Chhatrapal and killing
Bankey Lal.
On the basis of the allegations of the
prosecution, Pussu was charged for an offence punishable under section 302
I.P.C. for having committed the murder of Bankey Lal and for an offence
punishable under section 307 I.P.C. for having attempted to commit the murder
of Chhatrapal. He was also charged under section 323 for having caused hurt to
Gaya Prasad and under sections 25 and 27 of the Arms Act for having been found
in illegal possession of and for having used a licensed gun for unlawful
purposes. He was also charged separately under section 302/34 I.P.C. for having
committed murder of Bankey Lal in furtherance of the common intention of
himself and of Sheo Rakhan. Sheo Rakhan was charged under section 304/34 I.P.C.
for the murder of Bankey Lal in furtherance of the common intention of himself
and of Pussu. Jia Lal, father of Pussu, was charged under section 30 of the
Arms Act for contravening the conditions of the licence issued in respect of
his gun by allowing Pussu to take and use it as stated above.
The learned Sessions Judge at Fatehpur in
Sessions Trial No. 128/72 found Pussu guilty of the offence punishable under
section 302 I.P.C. for having committed the murder of Bankey Lal and imposed
the sentence of death on him subject to confirmation by the High Court. Pussu
was also found guilty of offences punishable under sections 307 I.P.C. 323
I.P.C. and under section 27 of the Arms Act for which he was sentenced to
undergo rigorous imprisonment for seven years, for one year and for one year
respectively which were to run concurrently. Sheo Rakhan was found guilty of an
offence punishable under section 302/34 I.P.C. and was sentenced to undergo
imprisonment for life. Jia Lal, father of Pussu, was however acquitted of the
charge against him.
298 On appeal by Pussu and Sheo Rakhan, in
Criminal Appeal No. 710/73/Referred No. 34 of 1973 the High Court of Allahabad
set aside the convictions and sentences imposed on them and acquitted them of
the changes levelled against them.
Against the judgment of the High Court the
State Government applied to this Court for special leave to appeal against
Pussu and Sheo Rakhan after a petition for a certificate under Article 134 (1)
(c) of the Constitution had been dismissed by the High Court. By its order
dated October 28, 1974, this Court granted special leave to appeal against
Pussu alone and hence this appeal by special leave against Pussu only.
In the present case many facts are not in
dispute. That Bankey Lal was killed by injuries caused by a fire arm is not in
dispute. The time, the date and place of the alleged occurrence are also not in
dispute. The presence of Chhatrapal, Bankey Lal, Pussu and Sheo Rakhan at the
scene of occurrence when the occurrence took place is not also disputed. That the
licensed gun of Jia Lal, father of Pussu was used at the time of occurrence is
also not in dispute.
That Chhatrapal suffered injuries on account
of shots fired from that gun is also not in dispute. That there was enmity
between the family of Bankey Lal and the family of Pussu owning to some
consolidation proceedings is not seriously questioned before us. The only
points in dispute are (1) whether Bankey Lal was killed on account of firing by
Pussu as stated by the prosecution or whether he was killed on account of the
shots fired by Jia Lal, father of Pussu, (2) whether Chhatrapal suffered
injuries on account of shots fired by Pussu with the said gun or whether he
suffered these injuries on account of the firing by Jia Lal, (3) whether Gaya
Prasad was assaulted by Pussu and (4) whether Pussu had committed any offence
under the Arms Act.
The report containing the first information
about the occurrence, according to the prosecution, was written by Yashwant
Singh (P.W.6), a young person of about 18 years who was a resident of Kishunpur
Chirai to the dictation of Jang Bahadur Singh, the father of Bankey Lal.
Yashwant Singh has stated that he was a student studying in the IXth class,
that he had written the report to the dictation of Jang Bahadur Singh, that after
writing it he had read it out to Jang Bahadur Singh who signed before him and
that thereafter he had handed over the report to Jang Bahadur Singh. He has
denied that he had written the report either to the dictation of 299 Lakhanlal
and others or some time later to the dictation of the police. The report
contains details which Jang Bahadur Singh (P.W.13) was able to collect from his
daughter-in-law and others who were nearby at the time of the incident. In that
report there is no reference to Jia Lal, father of Pussu, at all, (one Jia Lal
whose name is mentioned in it is a different person). The presence of Pussu and
Sheo Rakhan at the scene is mentioned. The role played by each of them is
stated to be as in the prosecution case set out above.
The names of persons who were present there
including Chhatrapal are also mentioned. The above report and the licensed gun
of Jia Lal, the father of Pussu, which had been seized by the witnesses were
received at about 8.30 P.M. on that very day at the Police Station at Khakhreru
which was about four miles from Kishunpur Chirai where the occurrence had taken
place. On the basis of the said report the First Information Report was
prepared under section 154 Criminal Procedure Code.
The learned Trial Judge has opined that the
First Information Report has been promptly prepared and sent in this case. The
only criticism made against it before the trial court on behalf of the accused
was that it did not contain some details including the injuries said to be on
the person of Pussu and Sheo Rakhan. The trial court has observed that the
report was not one dictated by an eye witness but by Jang Bahdur Singh who
collected information from people who were there, that Jang Bahadur Singh who
had lost his only son could not be expected to furnish all details at the time
when the report was prepared and that the report contained broadly all the
particulars of the occurrence. The trial court also observed that no motive
could be assigned to the omission to refer to the injuries on the person of the
accused said to have been caused by lathi blows. The High Court has, however,
considered this last aspect namely the omission to refer to Gaya Prasad (P.W.7)
giving lathi blows to Pussu and to Chhatrapal catching hold of Pussu and
preventing him from reloading the gun was a material omission. We shall advert
to this aspect of the matter again at a later stage. One significant aspect of
the First Information Report however is that even though there was enmity
between the family of Jang Bahadur Singh and the family of Jia Lal, the father
of Pussu, and although the defence theory is that the said Jia Lal had fired at
Chhatrapal and Bankey Lal, there is no reference to the presence of Jia Lal the
father of Pussu, at the scene of occurrence.
300 After the receipt of the information
regarding the occurrence, the Sub Inspector of Police, Dharam Singh (P.W. 14)
and the Station Officer Yamuna Prasad Pandey (P.W. 15) conducted the
investigation. Pussu and Sheo Rakhan could not be arrested till October 23,
1971. They were absconding till then and they surrendered in the court of the
Additional District Magistrate (J) on October 23, 1971. Pussu has admitted this
fact in his examination under section 364 Criminal Procedure Code, 1898 by
stating that on learning about the report they surrendered before the court.
After the investigation was over a police report was filed in the court of the
magistrate which ultimately led to the committal of Jia Lal, Sheo Rakhan and
Pussu to take their trial before the Sessions Court.
Exhibit Ka 35 is the post mortem certificate
issued by Dr. S.C. Misra, who had conducted the post mortem examination on the
body of Bankey Lal. He has stated therein that there were a number of gunshot
injuries on the person of the deceased, and the death was due to shock and
haemorrhage caused by gunshot injuries. There is no comment made by either side
on this report. It is relevant to mention here that Dr. S.C. Misra has stated
in his deposition (Ex. Ka 34) that on October 16, 1971 at about 2.30 p.m. he
had also examined the injuries of Ram Kishore son of Jia Lal (Ram Kishore is
the other name of Pussu) and had found three lacerated wounds, one abrasion,
one contusion and one abraded contusion and had issued a certificate as per
Exh. Ka 1. He also stated that the said injuries could be caused by lathi
blows. Pussu has admitted that he was so examined in his statement under
section 364 Criminal Procedure Code, 1898.
P.W.2 Dr. V.P. Singh is the person who
examined the injuries on the person of Chhatarpal Singh (P.W.5), on the person
of Gaya Prasad (P.W.7) and on the person of Ram Gopal. He has stated that there
were gunshot injuries on the person of Chhatrapal Singh and an abrasion and a
lacerated wound which could have been caused by a blunt weapon on the person of
Gaya Prasad. Ram Gopal is stated to have a small contusion and an abrasion on
his person.
P.W. 5 Chhatrapal Singh, P.W. 7 Gaya Prasad,
P.W. 1 Lakhanlal and P.W. 10 Ramnath are the eye witnesses. Of them P.W. 5
Chhatrapal Singh and P.W. 7 Gaya Prasad are injured witnesses. The statement of
Lakhanlal was recorded by the police on 301 October 15, 1971 itself when he
handed over the report about the occurrence and the statements of Chhatrapal
Singh, Gaya Prasad and Ramnath were recorded by the police on October 16, 1971.
Before considering the evidence of these eye witnesses, it is necessary to
refer to a curious experiment which was carried out by the High Court in the
course of the hearing of the appeal. The experiment relates to the capacity of
Chhatrapal to run when he was fired at by Pussu.
One of the arguments addressed on behalf of
the accused before the High Court was that Chhatrapal could not have been fired
at from a short distance but he must have been shot from a long distance as the
injuries on his person were superficial and hence he could not run and try to
catch hold of Pussu by his waist before Pussu could reload his gun.
Chhatrapal was about 60 years of age at the
time of the incident. In support of its conclusion that Chhatrapal could not
run towards Pussu in order to catch hold of him this is what the High Court
says:
"Chhatrapal appeared in the Court and we
asked him to move briskly to a certain distance in order to demonstrate his
ability. He did so. We also got one of the young lawyers present in Court
unload and reload a single barrel gun of exactly the same make as the gun,
material Ex. 1. Our assessment on the demonstration about the brisk movement of
Chhatrapal and the time taken in reloading the gun by the young lawyer is that
even if Chhatrapal aged 60 years after receiving the gun shots injuries had run
from 8 to 10 paces, he could neither catch hold of Pussu, a young lad, nor
prevent him from reloading his gun." This procedure of conducting an
experiment which was carried out two years after the incident in court with the
aid of an young lawyer (about whose proficiency in handling a gun we know
nothing) who was asked to handle a different gun altogether and which had been
used to reject the truth of the evidence of the eye witnesses appears to be
highly irregular. The High Court has not addressed itself to the degree of
efficiency, or shall we say, inefficiency of Pussu in handling a gun. The time
taken by any person to reload a gun depends upon several factors including the
condition of the gun and the surcharged atmosphere created by the firing bout
which may have preceded the time of reloading the gun.
We shall now refer to what Chhatrapal has
stated in the course of his deposition. He has stated:
302 "At the time when I saw Pussu and
Sheo Rakhan near the mango tree, I saw weapons in their hands. At the place
where the firing took place for the first time, both the accused person were
opening and loading the cartridges. They had loaded the cartridge near the mango
tree. On the first occasion, at the time of loading of the cartridges, I was at
a distance of 1-15 paces towards east behind Bankey. At the time of first
firing, t e sounds of the gun fires made by the two accused person were
separate. They had fired from some distance from each other. Both the accused
persons were almost at equal distance. They were not one behind the other. I cannot,
however, rule out the difference of 1 or 2 paces. At the first gunfire, Bankey
ran towards the village. He must have run upto a distance of 5-10 paces when
the second fire was opened. Bankey Lal was hit by the Ist as well as the 2nd
gunfire. At the time of firing, the accused persons were on the north- eastern
side of the passage. The third gun fire was made by the accused persons at that
very place. Bankey could not go ahead. At the time of 3rd fire, the accused
persons were on the western side of Bankey Lal.
After this third fire, I rebuked the accused
persons.
Thereupon Pussu fired at me and then I caught
hold of him from behind. The snatching of the gun took place at a distance of
ten paces on the eastern side of the place where Bankey Lal had sat down......
As soon as Pussu fired at me, I caught hold
of him by his waist. After I had caught hold of his waist Pussu could not fire
again so long as he did not get himself freed.
To Court:- At the time when Pussu fired at me
and I caught him by his waist, the empty cartridge fired at me remained inside
the gun. Pussu could not take it out or throw it away nor could he open the
gun.
To counsel:
And in the meantime the gun was
snatched." 303 There is nothing elicited in the cross examination of this
witness which could discredit his testimony. There was no ill-will between
Chhatrapal and the members of Pussu's family. He denied a suggestion that there
were some proceedings under section 107 Criminal Procedure Code against him.
There was also no evidence in support of that suggestion. Chhatrapal had been
in fact injured by gun shots and the gun used on that occasion had in fact been
seized.
Why he should exonerate Jia Lal the father of
Pussu from the responsibility of injuring him if Jia Lal was in fact
responsible for it but implicate Pussu is in comprehensible.
Gaya Prasad (P.W. 7) who was also an injured
eye witness stated in the course of his deposition thus:
"When Bankey Lal and his wife reached
near Har Sakri well, Pussu accused, who was armed with the gun of his father,
and Sheo Rakhan accused who was armed with a country made pistol began to fire
gunshots at Bankey Lal. Bankey Lal and his wife raised alarm and ran towards
the village. Chhatrapal and I, following him were going towards the village by
the same passage.
Chhatrapal forbade him but Pussu said that he
would not leave Bankey Lal alive. At this Chhatrapal ran to catch hold of Pussu
whereupon Pussu aimed the gun at Chhatrapal. Chhatrapal turned and the gunshot
hit him on his back. Even after being hit by the gunshot, Chhatrapal caught
hold of Pussu by his waist.
Ram Gopal, Lakhan Lal, Jia Lal Gadaria, and Ram
Nath came running to the place of occurrence from the south. Ram Gopal and I
went just close to Pussu, Ram Gopal and I advanced to snatch the gun, but Pussu
gave one blow of the butt of the gun to each of us on the head. At this I gave
4-5 blows of lathis to Pussu and then we jointly snatched his gun. When we
snatched his gun he went away towards the mango tree where his sala
(brother-in-law) was present On receiving the injury, Bankey Lal had sat down
in the way. Ram Nath and Jia Lal lifted him on their arm and started for the
village. When they reached near the peepal tree, Pussu came with the pistol of
his brother-in-law Sheo Rakhan struck it with the abdomen of Bankey Lal and
fired, Bankey Lal 304 died just on receiving the pistol shot. Thereafter Pussu
and Sheo Rakhan ran away towards Raeepur." Jia Lal referred to in the
above passage is Jia Lal Gadaria and not Jia Lal the father of Pussu.
Even this witness is not shown to be
interested in giving false testimony. Lakhan Lal (P.W. 1) and Ram Nath (P.W.
10) who were also eye witnesses have given substantially the same version as
the evidence of Chhatrapal and Gaya Prasad and their evidence is not also shown
to be unworthy of acceptance.
As against the above evidence adduced by the
prosecution, we have the evidence of Jagannath (D.W.1). He has stated that at
the time when the occurrence took place he was in his plot near Bhagwa Talab
which was close to the scene of occurrence, that he heard the cries of Pussu
'Run up, save me, Bankey Lal and Ghaseetey are killing me'. What took place
thereafter may be narrated in his own words thus:
Having gone there, I saw that Bankey Lal
deceased and Ghaseetey were assaulting Pussu accused with lathis. Jia Lal
challenged both of them and said "Do not beat him, otherwise I shall shoot
you down". On Jia Lal's saying so, Chhatrapal and Bankey stopped for a
short time; but they again rushed to assault Pussu. In the meantime Pussu
accused took shelter behind the mango tree. Then Jia fired 2-3 shots at
Chhatrapal and Bankey. On receiving the gun shots injuries Chhatrapal fell down
on the ground. Bankey Lal, too, received some injuries. In the meantime Bankey
Lal's servant Nanhua caught hold of Jialal accused from behind, as a result of
which his arms also got bound. Nanhua shouted "Run up. I have caught hold
of the sala". At this Shiva Rakhan accused reached there. He caught hold
of Nanhua and felled him down and Jia Lal accused was released from his hold.
Bankey Lal deceased rushed to snatch the gun of Jia Lal accused, but as soon as
his hand fell on the barrel of the gun, it got discharged and the shot hit
Bankey Lal on his right flank, as a result of which Bankey Lal fell down dead
then and there. The accused persons ran away with their licensed gun towards
their house.
305 This defence witness has not been
believed by the trial court. Nor do we find that any reliance has been placed
on his evidence by the High Court. The statement of this witness was recorded
by the police on January 31, 1972 after P.W. 15 Yamuna Prasad Pandey came to
know that the name of this witness had been mentioned in the report given by
Pussu at the Kotwali Police Station. He has stated in his cross- examination
that "When I sighted for the first time, I saw that Jia Lal was firing
shots at Ghaseetey alias Chhatrapal and Bankey". If that is so his version
about what all had preceded that stage is manifestly his imagination. We have
carefully gone through his evidence and it does not inspire confidence. The
prosecution evidence cannot be rejected on the basis of the evidence of this
defence witness, particularly because the minor injuries stated to be on the
person of Pussu are not sufficient to hold that Pussu and Sheo Rakhan were the
victims of the aggression on the part of Chhatrapal and Bankey Lal. This
defence version is also contradicted by the conduct of Pussu immediately after
the incident. If he was an innocent person and his father had fired the gun in
defence of Pussu and Sheo Rakhan he would also have been an informant of the
incident at the Khakhreru Police Station which was only about four miles from
his village or he would have been available for interrogation by the police, if
they came at the instance of somebody else.
But he ran away from the village and he was
found at 8 A.M.
on the next day i.e. October 16. 1971 at the
Kotwali Police Station, Fatehpur which was about forty five miles from his
village. In order to reach that place he had to pass through at least three
places where there were police stations. As the trial court has observed he
must have gone there to have proper legal advice before gaving his version of
the incident at a police station where he could find an officer who would
oblige him by not arresting him. Ordinarily in a case of this nature a police
officer would have contacted the concerned police station to ascertain facts
and to seek instructions. Pussu, as mentioned earlier, was arrested on October
23, 1971 when he surrendered before court. The gist of the version in the
F.I.R. (Exh. Ka. 10) given by Pussu at the Kotwali Police Station, Fatehpur is
summarised by the trial court in its judgment and the relevant portion of that
judgment reads thus:
"When both these accused reached near
"Bhagwa Talab" they found deceased Bankey Lal. Ghaseetey alias
Chhatrapal and Bankey Lal's servant Nanhoon coming from north side of the
village towards them armed with lathis. On account of fear both these accused
left that 306 passage but the aforesaid three persons rushed up at them and
began to assault them with lathis. On hearing their cries his father accused
Jia Lal who was having his licensed gun, Jagannath and Sheo Autar reached there
and began to save them from the assault. The assailants namely Bankey Lal,
Chhatrapal and Nanhoon threw down his father Jia Lal on the ground and began to
snatch his gun. In the meantime he ran away from there but when he was running
away he heard a gunshot sound. He did not go to his police station due to fear
and, therefore, reached Police Station Kotwali, Fatehpur. He had also stated
about injuries over his head, hand and back caused by lathi blows".
This version, apart from the other
infirmities pointed out by the trial court, contradicts the version of
Jagannath (D W. 1) that when he first 'sighted' Jialal the father of Pussu was
already firing shots. The story contained in Exh. Ka-10 appears to be one spun
out after a lot of deliberation.
We have set out above in some detail the
prosecution evidence and the defence version only to show how demonstrably the
High Court was in error in rejecting the case of the prosecution. We have
already referred to the experiment carried out by High Court at the hearing of
the appeal by asking Chhatrapal to run about and an advocate to load a gun in
their presence. Having been impressed by the result of that experiment the High
Court first rejected the evidence of Chhatrapal that he had tried to catch hold
of Pussu. The High Court then found that there was a material omission in the
information given by Jang Bahadur Singh as "there was no mention about Gaya
Prasad having inflicted four or five lathi blows on Pussu and it is only in the
trial court that the eye witnesses have asserted that four or five lathi blows
were inflicted on Pussu". Having regard to the several details about the
incident given by Jang Bahadur Singh who was in fact not an eye witness, the
omission referred to above appears to be a trivial one not affecting
credibility of the prosecution version. The third ground on which the High
Court found the prosecution case as not being worthy of acceptance is again a
strange one. The relevant part of the judgment of the High Court reads thus:
"The eye-witnesses have asserted that
after the gun had been snatched away, Pussu freed himself and 307 taking the
pistol from appellant Sheo Rakhan fired a fatal shot at Bankey Lal from point
blank range. It is highly improbable that after Pussu had been arrested and
disarmed he could be allowed to free himself from the hands of young men like
Lakhan Lal, Gaya Prasad and Ram Pal. The normal conduct of Pussu after he had
freed and rearmed himself with pistol would have been to demand the return of
his gun from Gaya Prasad on the point of his pistol rather than to pursue his
injured victim Bankey Lal and to shoot him dead".
What is improbable about the prosecution version,
we fail to see. If Pussu's object was to kill Bankey Lal, he would instead of
demanding the return of the gun on the point of his pistol, run towards Bankey
Lal and shoot at him, which in fact is what he is alleged to have done in this
case. The High Court's opinion that the normal conduct of a person in the
position of Pussu would have been what the High Court has stated in the course
of its judgment is a mere surmise. At any rate on such an imaginary ground the
evidence of the eye witnesses could not be rejected. Another reason given by
the High Court is again a supposition resting on no solid ground and that
relates to the condition of the gun (Exh. Ka-1). The High Court has observed:
"None of the eye-witnesses has stated
that any blow of lathi plied by Gaya Prasad fell on the butt of the gun. Gaya
Prasad has stated that he inflicted four or five lathi blows on Pussu. The gun
was deposited in the Mal Khana at the Police Station and a piece of the wooden
part of the butt of the gun was found broken.
This was noted in the recovery memo (Exh.
Ka-1). The gun was examined by us and we found a wooden piece of the butt
having chipped off and the opening lever of the gun had become inoperative.
This could only happen if lathi blow fell on the butt of the gun. None of the
eye-witnesses has deposed that any blow from lathi plied by Gaya Prasad
registered a hit on the gun. There is no explanation as to how the wooden butt
of the gun (material Exh. 1) got broken and consequently the gun could not be
opened." In reaching the above conclusion, the High Court has overlooked
the evidence of Gaya Prasad (P.W. 7) in his examination-in- 308 chief that when
they were trying to snatch the gun Pussu gave one blow with the butt of the gun
on his head and one blow on the head of Ram Gopal and the further statement in
his cross-examination that on account of its being snatched with jerks, the
wood fixed at the lower part of the gun was left in the hands of Pussu himself
and that the gun could have been damaged by being used as mentioned above. The
High Court was wrong in holding that the gun could have been damaged only if a
lathi blow had fallen on it. The explanation given by the prosecution is quite
satisfactory indeed. We are not also impressed by the other ground relied on by
the High Court that "in cases of emergency is repeated firing a shooter
does not normally start collecting empty cartridges automatically ejected from
the gun before reloading the gun" and "the non-recovery of the fired
cartridge either in the breach of the gun or from the spot is a suspicious
circumstance" having regard to the overwhelming evidence in this case in
support of the prosecution case.
The rule governing the appreciation of
evidence in a criminal case is laid down by this Court in State of Punjab v.
Jagir Singh & Ors.(1) in which this Court set aside the judgment of
acquittal passed by the High Court which had reversed the conviction and
sentence imposed by the trial court thus:
"A criminal trial is not like a fairy
tale wherein one is free to give flight to one's imagination and phantasy. It
concerns itself with the question as to whether the accused arraigned at the
trial is guilty of the crime with which he is charged. Crime is an event in
real life and is the product of interplay of different human emotions. In
arriving at the conclusion about the guilt of the accused charged with the
commission of a crime, the court has to judge the evidence by the yardstick of
probabilities, its intrinsic worth and the animus of witnesses. Every case in
the final analysis would have to depend upon its own facts. Although the
benefit of every reasonable doubt should be given to the accused, the courts
should not at the same time reject evidence which is ex facie trustworthy on
the grounds which are fanciful or in the nature of conjectures".
309 We have pointed out above the manifest
errors committed by the High Court in the course of its judgment acquitting the
accused Pussu.
On a careful reading of the evidence in this
case, we feel that Jia Lal had out of love and affection towards his son from
the beginning tried to shield Pussu but has ultimately not been successful.
From the evidence it is obvious that Pussu and Sheo Rakhan were armed with fire
arms and they were the aggressors. The plea of self defence urged on behalf of
Pussu cannot be accepted. A person who is an aggressor and who seeks an attack
on himself by his own aggressive attack cannot rely upon the right of
self-defence if in the course of the transaction he deliberately kills another
whom he had attacked earlier. In the instant case having regard to the nature
of the weapon used it has to be held that the act by which the death of Bankey
Lal was caused by Pussu was done with the intention of causing death, and we do
not find any extenuating circumstances which would mitigate the offence
committed by Pussu. The trial court was, therefore, right in convicting Pussu
of an offence punishable under section 302 I.P.C. The acquittal of Sheo Rakhan
does not affect the prosecution case against Pussu. There is no legal bar for
convicting Pussu alone in this case on the facts and in the circumstances of
the case.
The principle of issue estoppel is
inapplicable here.
This is not a case in which it could be said
that two views were reasonably possible. The only reasonable view to be taken
is the one taken by the trial court. We are aware of the rule of practice that
ordinarily this Court should not interfere with judgments of acquittal on a
mere re- appreciation of evidence. But if there are glaring infirmities in the
judgment of the High Court resulting in a gross miscarriage of justice, it is
the duty of this Court to interfere. In the instant case we find that the
approach of the High Court is basically erroneous and its judgment is founded
on false assumptions, conjectures and surmises. On a consideration of the
entire mass of evidence adduced in this case we are satisfied that the
prosecution has established beyond reasonable doubt that Pussu had committed
the murder of Bankey Lal. In cases of this nature it is advisable to bear in
mind the following observations of Krishna Iyer, J.
in Shivaji Sahebrao & Anr. v. State of
Maharashtra(1) at pages 492-493:
310 "Even at this stage we may remind
ourselves of a necessary social perspective in criminal cases which suffers
from insufficient forensic appreciation. The dangers of exaggerated devotion to
the rule of benefit of doubt at the expense of social defence and to the
soothing sentiment that all acquittals are always good regardless of justice to
the victim and the community, demand especial emphasis in the contemporary
context of escalating crime and escape. The judicial instrument has a public
accountability. The cherished principles or golden thread of proof beyond
reasonable doubt which runs thru' the web of our law should not be stretched
morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive
solicitude reflected in the attitude that a thousand guilty men may go but one
innocent martyr should not suffer is a false dilemma.
Only reasonable doubts belong to the accused.
Otherwise any practical system of justice will then break down and lose
credibility with the community. The evil of acquitting a guilty person
lightheartedly as a learned author Glanville Williams in 'Proof of Guilt' has
sapiently observed, goes much beyond the simple fact that just one guilty
person has gone unpunished If unmerited acquittals become general, they tend to
lead to a cynical disregard of the law, and this in turn leads to a public
demand for harsher legal presumptions against indicted 'persons' and more
severe punishment of those who are found guilty. Thus too frequent acquittals
of the guilty may lead to a ferocious penal law, eventually eroding the
judicial protection of the guiltless. For all these reasons it is true to say,
with Viscount Simon, that "a miscarriage of justice may arise from the
acquittal of the guilty no less than from the conviction of the
innocent...." In short, our jurisprudential enthusiasm for presumed
innocence must be moderated by the pragmatic need to make criminal justice
potent and realistic." In the result, we set aside the judgment of the
High Court in so far as Pussu is concerned and restore his conviction for the
offence punishable under section 302 I.P.C. as ordered by the trial court. As
regards sentence we feel that ends of justice would be met if we impose the
punishment of imprisonment for life on him. We 311 accordingly sentence Pussu
to imprisonment for life. We also restore the conviction of Pussu for the offences
punishable under sections 307 I.P.C., 323 I.P.C. and section 27 of the Arms Act
and the sentences imposed on him on that account as ordered by the trial court.
All the sentences shall run concurrently.
The appeal is accordingly allowed. Pussu is
on bail. He is directed to surrender in accordance with the terms of his bail
and undergo the punishment imposed on him.
P.B.R. Appeal allowed.
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