U.P. Vs. Anil Singh  INSC 243 (26 August 1988)
K.J. (J) Shetty, K.J. (J) Oza, G.L. (J)
1988 AIR 1998 1988 SCR Supl. (2) 611 1988 SCC Supl. 686 JT 1988 (3) 491 1988
INFO : R 1988 SC2013 (15)
of India, 1950: Article 136-Under article 136 the scope of appeal very
limited-Even if two views reasonably possible court will not interfere with
order of acquittal-Court will also not hesitate to interfere if the acquittal
respondent Anil Singh was tried for the murder of Keshav Kumar, his erstwhile
friend and classmate. The Trial Court convicted the accused and sentenced him
to imprisonment for life. The High Court doubting the credibility of the eye-witnesses,
discarded the prosecution case and acquitted the respondent.
the appeals, it was,
(1) The scope of appeals under Article 136 of the Constitution is undisputedly
very limited. This Court does not exercise its overriding powers under Article 136
to reweigh the evidence. Even if two views are reasonably possible, one
indicating conviction and other acquittal, this Court will not interfere with
the order of acquittal.
the Court will not hesitate to interfere if the acquittal is perverse in the
sense that no reasonable person would have come to that conclusion, or if the
acquittal is manifestly illegal or grossly unjust. [6l6A] State of U.P. v. Yushoda Nandan Gupta, AlR 1974 SC 753 and State
of A. P. v. R. Anjaneyulu, AIR 1982 SC 1598,
The public are generally reluctant to come forward to depose before the Court.
It is, therefore, not correct to reject the prosecution version only on the
ground that all witnesses to the occurrence have not been examined. Nor it is
proper to reject the case for want of corroboration by independent witnesses if
the case made out is otherwise true and acceptable. [6l7B-D] (3) It is welt to
remember that there is a tendency amongst witnesses in our country to back up a
good case by false or exaggerated version. The Court should made an effort to
disengage the truth from falsehood and to sift PG NO 611 PG NO 612 the grain
from the chaff rather than taking an easy course of holding the evidence
discrepant and discarding the whole case as untrue. [617C-D; 617F] Bankim Chander
v. Matangini, 24 C.W.N. 626 PC and Abdul Gani v. State of Madhya Pradesh, AIR 1954 SC 31, referred to.
Invariably the witnesses add embroidery to the prosecution story, perhaps for
the fear of being disbelieved. But that is no ground to throw the case
overboard, if there is a ring of truth in the main. [6l7G] It is the duty of
the Court to cull out the nuggets of truth from the evidence unless there is
reason to believe that the inconsistencies or falsehood are so glaring as utterly
to destroy confidence in the witnesses. It is necessary to remember that a
Judge does not preside over a criminal trial merely to see that no innocent man
is punished. A Judge also presides to see that a guilty man does not escape.
One is as important as the other. Both are public duties which the Judge has to
perform. [6l7G-H; 618A]
The Court gave its anxious consideration to all material facts and
circumstances of the case and came to the conclusion that the decision of the
High Court could not be supported. [622C]
APPELLATE JURlSDICTlON: Criminal Appeal No. 671-672 of 1980.
the Judgment and Order dated 17.4.1980 of the Allahabad High Court in Criminal
Appeal No. 2340 of 1978.
Yogeswar Prasad, Mrs. Sarla Chand, Girish Chand, Ms. Rachna Joshi and D. Bhandari
Advocate (N.P.) for the Appellant.
Anthony. J.K. Das, J.R. Das and S.K. Patri for the Respondent .
Judgment of the Court was delivered by JAGANNATHA SHETTY, J. The State of U.P. and the informant have preferred these appeals with
special leave, challenging the order of acquittal recorded by the Allahabad
High Court in Criminal Appeal No. 2340 of 1978. Anil Singh, the common
respondent in the appeals was tried for the PG NO 613 murder of Keshav Kumar
(`K-K') by the Court of Session (Non- Metropolitan area), Kanpur. He was convicted and sentenced to
imprisonment for life. But on appeal, he was acquitted by the High Court.
prosecution story of the occurrence may be stated at some length.
respondent-accused and KK were almost of equal age.
are friends as well as class mates. They were also co- accused in some minor
criminal cases. The accused was of violent temperament. He used to indulge in
criminal activities. His father sent him to his maternal grandfather's house at
Faizabad for being better taken care of. But he used to visit often his native
where KK was residing. The accused was in the habit of demanding money from KK.
At the time of Diwali festival of the year -i977, the accused asked KK to pay
Rs.2,500. He wanted to purchase a revolver. It is alleged that he even
threatened KK that he would be killed if the amount was not paid by November 14, 1977. November 14, is a rejoicing day
for children. It is a birth day anniversary of Pt. Jawahar Lal Nehru who was
the first Prime Minister of this Country. The children all over called him and
still remember him as "Cha Cha Nehru". Every year his birth day is
celebrated as "Children Day" throughout the country. On that 14 November 1977, local Jaycees Club arranged Bal-mela
and cultural programme. It was arranged in the Normal School compound `with
sweet-meet and chat-shops. Bal-Mela went on till 7 p.m. The cultural programme was to commence at 8 p.m.
between KK was murdered.
said that the accused and KK came to Bal-Mela.
there the accused went along with KK to a nearby place, that is the varandah of
Dr. Diwedi's shop. There he assaulted KK with knife. Prahlad Kumar who is the
eldest brother of KK and some others rushed to the spot. But the accused could
not be caught. Nor KK could be saved. The accused was chased but he ran away by
brandishing his knife.
fatally injured KK was seen walking a few steps and falling down in a `Nali'. Prahlad
Kumar lifted him and carried up to some distance for medical attention. But on
the way near Khazanchi hotel, KK succumbed to in juries.
Kumar carried the dead body of his brother to his house. So many people
followed him. The Sub-Divisional Magistrate and Tehsildar who were the guests
of honour at the function also went to his house. Ramesh Chander Dube a PG NO
614 social worker and politician was very much there. Prahlad Kumar wrote a
report giving fairly all particulars of the occurrence. He took a scooter and
went to Police Station Bhoginpur which is just two miles away from his house.
Chander Dube accompanied him. They lodged the report at 9.15 p.m. at the Police Station.
Chand Tripathi Sub-Inspector was then incharge of the Police Station. He was
present when the report was lodged. He got the case registered. He immediately
went to the scene of occurrence. He also visited the house of the deceased. He
found the dead body lying on a bench. He conducted the inquest proceedings. Ex.
Ka. 1 is the inquest report. He sent the dead body with Constables Aley Hasan
and Trijugi Narain for post-mortem. Thereafter he recorded statements of
persons. He examined witnesses including Chottey Lal (PW 2). In the course of
interrogation of persons, he came across a boy called Raju. He took his
statement who has been later examined as PW 3 in the case.
following morning at 5.45
Investigating Officer again went to the scene of occurrence. He prepared a
sketch map Ex. ka. 13. He found blood stains on the furniture lying in the varandah
of Dr. Diwedi's shop. He got removed two pieces of a bench (Ex. 3 & 4) and
one piece of table (Ex. 5) which were stained with blood. A memo Ex. Ka. 15 was
prepared in respect thereof. Similarly, he collected blood stained and
unstained earth from the Nali (Ex. 6 & 7).
Ex. Ka. 16 was also prepared in evidence thereof. He also collected blood
stained earth from the Patti under the Memo Ex. Ka. 14.
Investigating Officer then directed his officers to search and arrest the
accused. But accused was not traceable in the town. The proceedings were
initiated under s. 82/83 Criminal Procedure Code. On 17 November 1977, he obtained warrant of arrest (Ex.
Ka. 17). The Sub-Inspector Sital Prasad was deputed to execute the warrant. On 21 November 1977 proclamation and warrant of
attachment (Ex. Ka. 18 & Ka. 19) were obtained and executed properly. The
property of accused was attached under Memo Ex. Ka. 20. It was only thereafter
the accused appeared in the Police Station Kotwali. On 26 November 1977 he was arrested at Kotwali.
the trial court, the prosecution in support of the case examined Prahlad Kumar
(PW 1), Chhotey Lal (PW 2) and Raju (PW 3) as eye-witnesses to the occurrence.
Rest of the evidence of prosecution is more or less formal. On the other side, Ramesh
Chander Dube (DW 1), Karan Singh (DW 2), PG NO 615 Balak Das (DW 3) and Shri
Prasad (DW 4) were examined as defence witnesses.
trial Court upon consideration of all the material on record accepted the case
made out by the prosecution. The trial Court convicted the accused for the
murder of KK and sentenced him to imprisonment for life.
High Court of Allahabad set aside the conviction and sentence, and acquitted
the accused. The High Court first surveyed some broad aspects of the case and
reached the conclusion that the relations between the family of accused and KK
were strained. The High Court then considered the evidence of eye-witnesses and
disbelieved them by attaching one or the other doubt against their credibility.
Prahlad Kumar (PW 1) was disbelieved on the grounds: He did not disclose the
name of person who first informed him about the assault on KK. He did not
disclose the name of accused to the Sub-Divisional Magistrate and Tehsildar
when they came to his house. He did not ask them to call the Police and get the
accused arrested. The High Court observed:
Magistrate is incharge of a Sub-Division and has to maintain law and order. The
Police ordinarily acts under his directions. In these circumstances had Prahlad
Kumar seen the occurrence and the assailant he should have immediately made a
complaint to the Sub- Divisional Magistrate who came up soon after the
silence of Prahlad Kumar in this respect is clearly indicative of the fact that
he had neither seen any part of the occurrence nor he had seen the assailant.
Lal (PW 2) was characterised as a chance witness. His presence at the place of
occurrence was doubted with the following observations:
fact which is conspicuous in his statement is that he and his 2 companions left
the market at the time of sun set for their village. In the middle of November
the time of setting in of the sun is about 5.30 p.m. There is dusk for about 45 minutes. Thus it appears that
these three persons left the market if not at about 5.30 p.m., then alteast at
about 5. 15 p.m. They could easily cover distance of 2 miles in an hour's time.
Therefore, by 7.15 p.m. they could have easily reached
their village. In this circumstance it does not stand to reason that they left
the PG NO 616 market at 7.30 or 7.45 p.m. From this aspect of the matter the version given by Chhotey Lal about
his presence at the time of occurrence is not fee from doubt." The
testimony of Raju (PW 3) was rejected by stating that he was a child witness. that
he did not figure in the FIR as an eye-witness, and his explanation for his
presence at the spot was not reasonable. The High Court said:
has stated that his elder brother had told him to come up early and that on
account of fear of being beaten by his brother he left the chabutara and
proceeded towards his house. It will be noticed that he had left the Mela area
with his Thela at about 7.30
p.m. It is thereafter
that he again returned to the Mela area he took 10-15 minutes in shifting the
chairs from the place of his shop to the dais of the drama. It is evident that
just 15 minutes later he left the Mela area. Assuming for a moment that his
brother had told him to come early it did not mean that he would return to the
house within less than half an hour. Moreover, he did not tell the
Investigating Officer that he left the Mela so soon on account of fear of his
brother. We are, therefore, of the opinion that Raju has not given a reasonable
explanation of his leaving the Mela area within about 15 minutes of his keeping
the chairs near the place of drama. Therefore, his presence at the time of
assault cannot be believed." With these and other conclusions, the High
Court discarded the prosecution case.
scope of appeals under Article 136 of the Constitution is undisputedly very
much limited. This Court does not exercise its over-riding powers under Article
136 to reweigh the evidence. The Court does not disturb the concurrent finding
of facts reached upon proper appreciation. Even if two views are reasonably
possible, one indicating conviction and other acquittal, this Court will not
interfere with the order of acquittal, [See:(i) State of U.P. v. Yashoda Nandan
Gupta, AIR 1974 SC 753 and (ii) State of A.P. v. P. Anjaneyulu, AIR 1982 SC
1598] But this Court will not hesitate to interfere if the acquittal is
perverse PG NO 617 in the sense that no reasonable person would have come to
that conclusion, or if the acquittal is manifestly illegal or grossly unjust.
late this Court has been receiving a large number of appeals against acquittals
and in the great majority of cases, the prosecution version is rejected either
for want of corroboration by independent witnesses, or for some falsehood
stated or embroidery added by witnesses. In some cases, the entire prosecution
case is doubted for not examining all witnesses to the occurrence. We have
recently pointed out the indifferent attitude of the public in the
investigation of crimes. The public are generally reluctant to come forward to
depose before the Court. It is, therefore, not correct to reject the
prosecution version only on the ground that all witnesses to the occurrence
have not been examined. Nor it is proper to reject the case for want of
corroboration by independent witnesses if the case made out is otherwise true
and acceptable. With regard to falsehood stated or embellishments added by the
prosecution witnesses, it is well to remember that there is a tendency amongst witnesses
in our country to back up a good case by false or exaggerated version. The
Privy Council had an occasion to observe this. In Bankim Chander v. Matangini,
24 C.W.N. 626 PC, the Privy Council had this to say (at 628):
in Indian litigation it is not safe to assume that a case must be false if some
of the evidence in support of it appears to be doubtful or is clearly unture,
since there is, on some occasions, a tendency amongst litigants to back up a
good case by false or exaggerated evidence." In Abdul Gani v. State of Madya
Pradesh AIR 1954 SC 31 Mahajan, J., speaking for this Court deprecated the
tendency of courts to take an easy course of holding the evidence discrepant
and discarding the whole case as untrue. The learned Judge said that the Court
should make an effort to disengage the truth from falsehood and to sift the
grain from the chaff.
also our experience that invariably the witnesses add embroidery to prosecution
story, perhaps for the fear of being disbelieved. But that is no ground to
throw the case overboard, if true, in the main. If there is a ring of truth in
the main, the case should not be rejected. It is the duty of the Court to cull
out the nuggets of truth from the evidence unless there is reason to believe
that the inconsistencies or falsehood are so glaring as utterly to destroy
confidence in the witnesses. It is necessary to PG NO 618 remember that a Judge
does not preside over a criminal trial merely to see that no innocent man is
punished. A Judge also presides to see that a guilty man does not escape. One
is as important as the other. Both are public duties which the Judge has to
instant case, the trial judge and the High Court have accepted the fact that
the report to Police was lodged by Prahlad Kumar (PW 1) at 9.15 p.m. That means
that the report disclosing the name of accused did reach the Police Station
immediately after the murder. This is a positive finding in favour of
prosecution. The report contains all particulars including the motive for the
crime and the manner in which it was committed. It gives us the names of
eye-witnesses as well. It also gives a clear picture as to what KK did after
the attack and how the accused made good his escape.
argued by Shri Frank Anthony, learned senior counsel for the accused that it
would be impossible for any person to prepare such an exhaustive report and
lodge the same before the Police so soon after the occurrence.
to counsel, the report must have been prepared after the inquest and
non-mentioning of the time of despatch of FIR to the Court would lend support
to his submission. We carefully examined the material on record. We are unable
to accept the submission of learned counsel. In the first place, PW 1 was not
specifically cross examined on this matter. The Court cannot therefore, presume
something adverse to the witness unless his attention is specifically drawn to.
Secondly, the records contain unimpeachable evidence to the contrary. Apart
from the records of the Police Station, the Panchayatnama (Ex. Ka. 7) to which Ramesh
Chandra Duty(DW 1) has admittedly appended his signature shows that the
reporting time of the crime was 9.15 p.m. DW 1 accompanied Prahlad Kumar to
Police Station to lodge the report though he later defected to the defence.
a political figure and social worker. Highly qualified too. He would not have
signed the Panchayatnama if the statement therein were not true and correct.
there cannot be any dispute about the place of commission of crime. It was
committed in front of Dr. Diwedi's shop. Portions of the blood stained
furniture have been collected from the place (Ex. Ka. 15 & 14). It has been
proved by the evidence of the Investigating Officer (PW 7).
evidence remains unchallenged.
critically examine the evidence of PW 1 there is nothing to PG NO 619 doubt the
correctness of the version given by him. He was one of the persons who organised
the programme. His presence at the place was therefore quite natural. He has
testified to the presence of KK going with the accused at the Bal- Mela. It is
an evidence of the last seen together. It is an important piece of evidence. PW
1 could not be disbelieved on the gound that he did not mention the name of
accused to Sub-Divisional Magistrate and Tehsildar. Nor his evidence could be
doubted on the ground that he did not seek the assistance of the said officers
to secure the police help.
unthinkable that the Sub-Divisional Magistrate and Tehsildar were not kept
informed about the assailant. The crime was committed at a public place crowed
had assembled there to witness the cultural programme.
Sub-Divisional Magistrate cancelled the cultural programme because of
commission of the crime. The people would have naturally asked why the programme
was cancelled? Who murdered whom and why? It is a natural human tendency in
such situations. The news of the murder must have spread like a wild fire. The
name of accused must have been known to everybody gathered there. It is unfortunate
that the High Court overlooked these circumstances.
other reason given by the High Court to discard the evidence of PW 1 is that he
did not disclose the name of person who first informed him about the murderous
attack on KK. This reasoning of the High Court apparently reveals a lack of
experience of man and matters. There was a big gathering at the Normal School
Compound. The people were waiting to see the cultural programme. It was to
commence at 8.00 PM. The time was hearing. PW 1 was at the stage as be was one
of the organisers. He was then informed that his brother KK was being assaulted
by the accused. The first impulse of PW 1 must have been to rush to the scene
of occurrence and not to remember the name or identity of person who informed
him. The place of occurrence was hardly about 25 paces from the stage set for
cultural programme. PW 1 must have rushed to the place in a minute. There must
have been some altercation between the accused and KK. It could have taken some
time. PW 1 must have reached within that time. The medical evidence supports
this version. There are as many as eight incised wounds on KK. The doctor has
stated that KK could have survived 10-15 minutes after the assault and moved
15-2() paces. PW I has stated that KK went towards Nali and fell down. He along
with Dhruv lifted KK from the Nali and carried him towards the clinic of Dr.Mishra.
Even the defence witness Ramesh Chander has admitted that PW 1, Dhruv and
others were present at the Nali where KK was lying injured. It is, therefore,
quite unreasonable to hold that PW 1 could not have seen the assault on KK. PG
NO 620 It was, however, urged that there was no light in front of the shop of
Dr. Diwedi and PW 1 or other witnesses could not have identified the accused. Shiv
Prasad Mishra (DW 4) has been produced to testify that the street mercury light
was not burning on that day. We may accept the evidence of DW 4, but we cannot
accept that there was no lighting arrangement at the public function. The
Sub-Divisional Magistrate and Tehsildar were present at the function. Bal Mela
commencing at 7.00 PM and cultural programme at 8.00 PM could not have been arranged in darkness. The prosecution
witnesss have stated that apart from the lighting arrangement at the function,
there was an electric light in front of the shop of Dr. Diwedi. It is also on
record that there was another light near the Khazanchi hotel. Quite natural the
area must have been well-lit for the function.
apart, the accused was not a stranger to the place. He was at any rate familiar
to PW 1'and his family members.
was, therefore, no scope for any mistaken identity of the accused.
reason given by the High Court for disbelieving the evidence of Chhotey Lal PW
2 is fanciful. PW 2 is a resident of the village Astiya. The village is at a
distance of two miles from Pukhrayan town. It will be seen from his evidence
that he along with Baijnath and Manuwa maharaj-all residents of the same
village had gone to the town for their requirements. PW 2 wanted iron nails, Manuwa
required vegetables and Baijnath had to purchase iron rods. After purchasing
the respective goods, they proceeded toward their village. When they reached
the tehsil, they came across 3- 4-5 boys who told them that there was Bal Mela
and cultural programme in the Normal School. It was natural for them to stay on
to see the cultural programme. They came to their grain dealer. They kept their
articles at his place and after some time they started towards the Normal
School at about 7.30 or 7.45 PM. When they were approaching the Khazanchi
hotel, they saw the accused assaulting KK. The evidence of PW 2 receives
corroboration from PW 1. He figures as an eye-witness in the FIR. He cannot, therefore
be categoried as a chance witness.
accused tried to give negative evidence to show that the market in Pukhrayan
town to every Monday was closed and, therefore, the presence of PW 2 was not
probable. PW 2 has admitted that the market used to remain 'closed on every
Monday, but the general merchandise and hardware shops are not closed. In our
opinion, there is no reason to disbelieve the statement of PW 1.
third eye-witness in this case is Raju PW 3. It seems to us that he is an
important witness. He had the PG NO 621 courage to come forward to depose in favour
of prosecution in spite of his father going as a defence witness. The trial
court upon preliminary examination has opined that he is an intelligent boy and
able to give rational answers to questions put to him. He was then a student of
class IV in the Normal School. His father opened a chat-shop at the Bal Mela.
PW 3 was in that shop. There is no disput on this fact. According to him, after
Bal Mela he arranged the chairs of his shop in front of the stage set for
cultural programme. He met some of his friends and sat at the chabutara by the
side of the stage. While leaving to his house, he saw a crowd by the side of Khazanchi
hotel and stopped there to find out what was happening. It is quite natural for
boys to peep into the crowd. He has deposed that he saw the accused hitting KK
with knife, but out of fear he ran from that place. His house is situated at a
distance of about 100 yards from the Mela ground. To cover that distance one
cannot take much time. Nor it is necessary to give any sufficient cause for his
presence at the place. One should bring to bear the knowledge and experience of
life. Since he was a student of the Normal School, his presence at the place
was natural. His name might not have been mentioned in the FIR, but that is
understandable. PW 1 might not have remembered him or noticed him. He was in a
hurry to rush to the spot to save his brother.
Investigation Officer has deposed that when he started interogating witnesses
at the spot, he came across Raju who said that he had seen the incident. His
statement was immediately recorded. In the Court, Raju has been cross examined
at the great length. But nothing substantial has been elicited to shake his
credibility. What is significant to note in this context is the attempt of th
father (DW3) to destroy the credibility of the son. His father as a defence
witness has stated that after the Mela they had returned to house at about
6.30PM and thereafter they did not go out of the house for the Whole night. The
trial court after carefully examining the testimony of DW 3 observed that he is
absolutely unreliable. It has held that the testimony of DW 3 that he alongwith
his son remained in the house after 6.30 PM and slept at about 8.30 PM is
unworthy of belief since their house is admittedly at a close distance from the
Normal School Compound. This observation of the trial court is not unjustified.
post crime conduct of the accused cannot also be lost sight of. The plea of
alibi has not been pursued. It has been proved that the accused was not
available in the town after the occurrence till 34 November 1977. It is on
record that the accused could not be traced and PG NO 622 proceedings under
sec. 82/83 Cr. Penal Code were initiated.
warrant of arrest issued against the accused returned unserved. There-after
proclamation was made and his property was attached. That was on 23 November
1977. He appeared on the next day in the Police Station Kotwali. That has been
proved by the general diary entry (Ex.Ka. 22) of the said Police Station.
be noted that the investigation in this case was conducted without loss of
time. Since the murder was committed at a public place where the Sub-Divisional
magistrate and Tehsildar were present, the Investigating Officer must have been
keen to arrest the accused immediately. That was perhaps the reason why he took
proceedings under sec. 82/83 Cr.P.C. We must really appreciate the proper and
prompt investigation made in this case.
have given our anxious consideration to all material facts and circumstances of
the case. It seems to us, that the decision of the High Court cannot be
result, we allow these appeals, set aside judgment of the High Court and rstore
that of the trial court. The conviction and sentence awarded aginst the accused
are restored. He shall undergo the remaining part of sentence.