Vs. Mahendra Singh & Ors  INSC 817 (7 November 1997)
PUNCHHI, M. SRINIVASAN
7TH DAY OF NOVEMBER, 1997 Present:
Mr. Justice M.M.Punchhi Hon'ble Mr. Justice M.Srinivasan K.B.Sinha, Sr. Adv., Ashok
Kumar Sharma and H.S.Kaicker, (Pramod Swarup and R.K.Singh) Adv. for A.S.Pundir,
Adv., (R.S.Sodhi, David Rao) Advs. For Indeevar Goodwill, Adv/Advs., with him
for the appearing parties.
following Judgment of the Court was delivered:
These appeals are directed against the judgment of the Allahabad High Court in
Cr1. Appeal Nos. 806-807 of 1988 reversing the judgment of the Additional
Sessions Judge Moradabad in S.T. No. 608 of 1985 and acquitting all the accused
who stood charged under Section 148, 302/149 and 307/149 I.P.C. Crl. Appeal No.
25 of 1990 is by the widow of one of the murdered persons while the other two
appeals are by the State.
case of the prosecution was as follows:- On 14.7.1985 Sohan Pal Singh, PW 1 and
his son Avdesh Kumar PW 3 as well as one Inder Pal Singh were going on motor
cycle of the first of them from the village Bilari to the village Chawra. At
the same time Raj Kumar Singh and his son Dhirender Singh were proceeding on
another motor cycle along with them. At about 8.30 p.m. when they reached the village Bonda Ferozepur they saw a
tractor parked on the middle of the road with its lights on. It had no bonnet.
The accused namely Mahendar Singh, Om Vir, Som Vir, Om Pratap Singh, Onkar
Singh and Raghu Raj Singh were standing near the tractor. One of them namely, Raghu
Raj Sing had a hasiya while the other had country-made pistols. The motor cycle
of Raj Kumar Singh was stopped on seeing the aforesaid persons on the road and
the other motor cycle was stopped a few steps behind. the accused who had
pistols fired at Raj Kumar Singh and Dhirender Sing. The former fell down on
receiving gunshot injuries. Raghu Raj Singh assaulted him with hasiya and gave
several blows Dhirender Singh started to run away but was cashed by the
accused. Another tractor came from behind which was stopped by PW 1. Dhirender
Sing attempted to climb on the said tractor but the accused fired at him as a
result of which he received gunshot injuries and fell down. Ram Swroop, PW 2
and his son Nathu Singh who had come on the said tractor also got gunshot
injuries when they tried to save Dhirender Singh. Some other persons who had
come on the said tractor ran away. Both Raj Kumar Singh and Dhirender Singh
died on the sport as a result of the injuries. In the meantime villagers came
from the village and the accused boarded their tractor and tried to escape. The
tractor got stuck in the ditch and the accused left it and ran away. The F.I.R.
was lodged by PW 1 at police station Kurh Fatehgarh at 10.00 p.m. on the same day.
accused were not tracable for three or four days.
of them surrendered on 17.7.85 in the court at Moradabad and the remaining three persons surrendered on 18.7.85. The
y pleaded not guilty and stated that they were falsely implicated on account of
enmity. One of them namely, Om Vir Singh stated that at the time of the
occurrence he as on duty in the cooperative bank at Moradabad and in support of
his claim he examined ten Branch manager as PW 1. The prosecution examined ten
witnesses. PWs 1 to 3 claimed to be eye witness. The Additional Sessions Judge
found all the accused to be guilty and convicted them, Mahender Singh, Om Vir
Singh, Om Pratap Singh and Som Viar Singh were convicted under Section 148
302/149 and 307.149 I.P.C. while Rahgu Raj Singh was convicted under Section
148 and 302/149 I.P.C. He was acquitted of the charge under Section 307/149
sentence was awarded to Mahender Singh and Raghu and Raghu Raj Singh under
Section 302/149 I.P.C. all the accused were further sentenced to undergo three
years rigorous imprisonment under Section 148 I.P.C. Mahendar Singh, Om Vir
Singh, Om Pratap and Som Vir Singh were further sentenced to seven years
rigorous imprisonment under Section 307/149 I.P.C. All the sentences of imprisonment
were ordered to run concurrently.
appeals were preferred before the High Court. One was by Mahender Singh and Raghu
Raj Singh and the other by the remaining accused. The High Court held that the
prosecution failed to establish the guilt of the accused and allowed the
appeal. The conviction and sentences were therefor sot aside.
widow of Raj Kumar Singh has filed Cri. Appeal No. 25 of 1990. The State of Uttar Pradesh has filed the other appeals.
main contention of the appellants is that there are three eye witnesses for the
incident in which the husband and the on of the appellant in Crl. Appeal 25 of
1990 was brutally murdered on account of political rivalry. It is argued that
the reasons given by the High Court for not believing the eye witnesses are eroneous
and flimsy. It is contended that the High Court has made much of minor
discrepancies, over-looking the circumstances that the witnesses were giving
evidence in court after a long time after the occurrence and such discrepancies
are hardly sufficient to reject the evidence of eye witnesses. It si submitted
that the names of all the accused were mentioned in the F.I.R. which was lodged
within a short time after the occurrence and that PW 2 is an independent
witness who had no axe to grind. According to the appellants the Trial Judge
has considered every aspect of the matter and accepted the case of the
prosecution and the High Court is not justified in reversing the judgment of
the Trial Court.
Contra, learned counsel for the respondents contend that there are several
unexplained factors which cast considerable doubt on the case of the
prosecution. It is argued that though the judgment of the High Court is not
quite satisfactorily worded, it is clear that the circumstances referred to by
the High Court are relevant and vital in the matter of appreciation of
evidence. It is submitted that there are some missing links which make the case
of the prosecution unacceptable.
have gone trough the entire evidence on record. We find it difficult to
persuade ourselves to hold that the prosecution has established its case beyond
doubt. As pointed out by the learned counsel for the respondents there are
certain factors which remain unexplained. The Trial Judge has somewhat exceed
his limits and taken for himself the task of explaining some of the
circumstances in rejecting the contentions of the defence.
the out set, it must be pointed out that the motive for the murder as alleged
by the prosecution has not been satisfactorily established. The case of the
prosecution is that the deceased were working for Inder Pal Singh at the time
of election of Pradhan from village Chawra held in 1982 in the village
Admittedly Inder Pal Singh was defeated in that election and Mahendar won the
same. Neither of the deceased contested the election. If there was enmity on
account of the election, the person against whom accused would have borne a
grudge was inder Pal Singh who contested the election. the said Inder Pal Singh
was present at the scene of occurrence sitting on the motor cycle in front of
the accused. He was left untouched without even a scratch.
really the enmity between the accused and the deceased was on account of the
election, the accused would have attacked the deceased as well as Inder Pal
Singh, if not Inder Pal Singh alone. There is nothing on record to show that
there were class between the accused on the one hand and the deceased or other
supporters of Inder Pal Singh on the other at any time before this Incident. It
is wholly improbable that after lapse of three years from the election in which
Inder pal Singh was defeated, the accused should bear such a grudge as to kill
the deceased. A look at the post mortem reports Ex. Ka 9 and ka 10 shows
several deep incised wounds which according to PW 8 were caused by some sharped-edged
weapon, say, by hasiya. There are several such wounds which indicate that the
assailant had given repeated blows with the weapon to the deceased. It gives an
impression that there was some deep-seated enmity between the deceased and the
assailant. The evidence on record does not prove any such deep-seated enmity
between the deceased and Raghu Raj Singh. Learned counsel for the respondents
points out the lacunae in the evidence with reference to the hasiya produced
before the court as the weapon used by Raghu Raj Singh. There is no evidence on
record regarding the finger prints or blood stains on the said hasiya. The
failure on the part of police to check the finger prints as well s the blood
stains on the weapon is a vital factor to be taken into account against the
prosecution. The High Court has sent for the weapon and also examined Dr. R.N.Katiyar,
an expert who opined that the injuries on the body of the deceased could not be
caused by a single blow of the hasiya. the said doctor stated that the post morterm
examination report does not show that the injury was caused by more than one
blow. Considering the f act that as many as seventeen incised wounds were found
on the body of Raj Kumar Singh, the High Court were found on the body of Raj
Kumar Singh, the High Court found it difficult to believe that he was assaulted
by only one assailant with a sharp cutting weapon. The High Court opined that
there were more than one assailant armed with the such sharp cutting weapons.
The opinion of the High Court cannot be considered to be totally baseless or
the light of the aforesaid facts if the case of the prosecution with reference
to the motive for the accused to commit the offence is considered, there will
be little difficultly in rejecting the same. No doubt, proof of motive is not
necessary to sustain a conviction but when the prosecution puts forward a
specific case as to motive for the crime, the evidence regarding the same has
got to be considered in order to judge the probabilities. It is well settled
that motive for a crime is satisfactory circumstance of corroboration when
there is convincing evidence to prove the guilt of an accused person but it
cannot fill up a lacuna in the evidence.
According to the prosecution, the accused were standing by the side of the
tractor belonging to the of them namely Mahender Singh which had not bonnet at
that time. It is also the case of the eye witnesses that the tractor could not
cross a trench on the road side and the accused left it there and ran away. Mahender
Singh denied the ownership of the tractor. the prosecution has examined one Rayees
Ahmed as PW 9 to prove that the tractor was sold by him to Mahender Singh.
According to his evidence he owned tractor No. DSW-5019 and sold it for a total
consider of Rs.14,000/- to Mahender Singh about 5 years prior to his evidence.
It is his version that on payment of Rs.10,000/- Mahender Singh took possession
of the tractor but did not pay the balance of Rs. 4,000/- He had not taken any
step to recover the balance. According to him the tractor was registered in the
name of his younger brother and his mother but he added that he did not know in
whose name the tractor was registered in RTO regarding sale of the tractor as
he did not receive the full consideration. He claimed to possess the paper
relating to tract but none of them was produced.
Registration Book was stated to have been deposited in connection with a
ceiling case but no receipt was produced.
claimed to have sold the sad tractor through one Munna mistry bu the latter has
not been examined. A perusal of has evidence shows that he is wholly
untrustworthy. There is nothing on record to show that the tractor which was
recovered from the scene of occurrence had the registration No. USW-5019. The
recovery memo states that there was no number found on that tractor. The bonnet
of the tractor is said to have ben recovered from the field of Mahender Singh
on 4.11.85 but the evidence on record does not show that the said bonnet was
that of the tractor which was recovered from the scene of occurrence. We have
no hesitation to hold that the prosecution has miserably failed to prove the
connection between the said tractor and the accused Mahender Singh.
circumstances goes a long way to shake the credibility of eye witnesses 1 to 3.
According to the prosecution there was another tractor at the scene which was
being driven by PW 2. According to the recovery report, there wee blood stains
on that tractor.
is no explanation as to why the police failed to take sample of the blood
stains and test the same. That tractor was said to have been handed over by PW
10 Mr. K.D. Verma, the investing officer to one Dhoom Singh for custody for
production in court or before the police whenever required.
records do not disclose the capacity in which the said Dhoom Singh took the
custody of the said tractor.
perusal of the evidence of PW 10 shows that there were several corrections,
cutting and over writings in the punchanamas prepared by him. While the eye
witnesses denied the correctness of some portions of the statements recorded by
PW 10, the later has deposed that on e of the witnesses did not make a
statement as claimed by him. PW 2 has deposed that he told the Investigating
Officer that two motor cycles had passed by their tractor before the occurrence
but PW 10 had stated in his deposition that PW 2 did not state so. PW 2 has
also denied the correctness of some of his statements as recorded by PW 10. In
the statement recorded under Section 161 Cr.P.C. PW 2 has stated, " a
motor cycle was lying at the place of occurrence itself". But in this
deposition in court PW 2 has said that he never stated so.
significant circumstance is that the statements of PW 2 and his son were
recorded by PW 10 long afterwards i.e.
The version given by PW 2 that he was not in a position to speak till then is
The Trial Court has itself pointed out that Dr. Santosh of Bilary is a very
important and material witness and ought to have been examined by the
prosecution. But the Trial Court has opined that the failure to do so was only
due to the carelessness of the Investigation Officer and it would not impair
the evidence of the eye witnesses. We are of the opinion that evidence of the
said doctor would have proved to be an important connecting link and in the
absence thereof, the testimony of PWs 1 and 3 lacks credence, particularly
because there is a vital discrepancy between the two witnesses in the matter of
the time at which they proceeded to the village itself is questioned, the
prosecution ought to have examined Dr. Santosh.
The Trial Court has also proceeded on the footing that Inder Pal Singh was
murdered some time after the occurrence and some of the accused had been chargesheeted
is no material on record in support of the said version and the Trial Court
could not have taken the same as granted.
The Trial Judge has allowed his imagination to run riot while discussing the
contention of the defence with reference to the contusions found one the body
of Raj Kumar Singh. The Trial Court has observed without any basis therefore on
the evidence "during this process of hitting the accused Raghu Raj must
have certainly tried to have a grip of Raj Kumar Singh so that he could not
stand and run away again and in doing so he might have given him blows by his
knee". The Trial Court has completely gone off the track in thinking so.
The High Court has also taken note of the fact that PWs 1 to 3 could not have
known the accused before the occurrence so as to the able to identify them in
court. IN that connection reference is made to the order of the Chief Judicial
Magistrate, Moradabad dated 26.7.85 directing the holding
of identification parade and the failure of the police officials to comply with
the said order. the Trial Judge has accepted the version of the Investigating
Officer that the he was not aware of the order passed by the Chief Judicial
Magistrate. It is not necessary for us to place reliance on the failure of the
Police to hold an identification parade
The circumstances referred to by s earlier taken along with the facts and
circumstance referred to by the High Court would lead cumulatively to the
conclusion that the case of the prosecution has not been proved beyond doubt.
accused are certainly entitled to the benefit of the same. Consequently we do
not find any justification to interfere with the judgment of the High Court.
The appeals fail and are dismissed.