Kalyan
& Ors Vs. State of U.P [2001] Insc 517 (28 September 2001)
M.B.
Shah & R.P. Sethi Sethi,J.
The
appellants along with seven others were charged for having committed the
offences punishable under Sections 302, 307, 147, 148 read with Sections 149 and
120B of the Indian Penal Code for committing the murders of Mulaim Singh, Munshi
Singh, Itwari and Ram Murti. One of the accused persons, namely, Pothi died
during the pendency of the trial. All the accused persons, facing the trial,
were acquitted by the trial court. In the appeal filed by the respondent-State,
the High Court convicted nine accused persons for various offences and
sentenced them to imprisonments which ranged upto the imprisonment for life.
Two of the accused persons, namely, Brijpal Singh (A10) and Beer Sahai (A11)
were acquitted. Out of the 9 convicted persons the appellants who were arrayed
as accused Nos.2,3,4,5 and 6 in the trial court have preferred this appeal. The
Accused Nos.A7, A-8 and A-9 did not file any appeal against the judgment of
conviction and sentences and are reported to have died.
The
present appeal has been filed, as a matter of right, under Section 2(A) of the
Supreme Court Enlargement of Criminal Appellate Jurisdiction Act, 1971. It has
been contended on behalf of the appellants that the impugned judgment being
contrary to law and facts deserves to be set aside. It is argued that the High
Court was not justified in interfering with the well considered order of
acquittal passed by the trial court and the prosecution has miserably failed to
connect the accused with the commission of the crime. The prosecution witnesses
were not only interested and biased but had deposed contrary to the prosecution
case as initially discussed in the First Information Report. The material
contradictions in the deposition of the witnesses cannot be reconciled, making
their deposition untrustworthy. It is further contended that as the prosecution
had failed to prove the charges beyond doubt, the appellants were entitled to
the benefit of all reasonable doubts.
In the
present case occurrence is stated to have taken place on 27th June, 1977 at 5.00 p.m. in Village Khiria Madhukar, Police Station Usehat, District
Badayun(U.P.), the FIR of which was lodged by Bhawar Pal Singh (PW1) at about 10 p.m. in the police station which was at a distance of
about 15 kms. from the place of occurrence. The deceased persons, namely, Mulaim
Singh is the father, Munshi Singh, uncle and Itwari, brother of the first
informant and Ram Murti is stated to be an acquaintance of the family. The
prosecution story, as narrated by the Informant (PW1) in the First Information
Report is that about one year prior to the date of occurrence one Budhpal Singh
was murdered and in connection with that case his father Mulaim Singh, his
uncle Munshi Singh and others were facing the trial. It was alleged that the
said case was filed on account of the old enmity of the deceased with one Pt.Hori
Lal (A1). About 13-14 days prior to the date of occurrence the said Pt.Hori Lal,
along with Ram Nath and others entered the house of one Lal Janki Prasad of the
same village and assaulted him. Pt.Hori Lal was the leader of a gang and wanted
to kill Mulaim Singh and Munshi Singh. On the date of occurrence the informant,
his father Mulaim Singh, his cousin Radhey, Pt.Ram Saran, Latoori and Ram Murti
came from Village Sakhrauli to their house where Munshi Singh, Itwari, Jasbhoo
Singh and Ram Dayal were already present. At about 5 p.m. 11 named accused persons along with one unknown person, at
the instance of Pt.Hori Lal, armed with guns, Ballams, kantas and lathis
reached there.
To
save their lives Mulaim Singh and others went inside their house and closed the
door. The accused persons encircled the house of the informant. Mulaim Singh
went on the roof of the house along with his gun. Munshi Singh, Itwari and Ram
Saran along with their guns followed him. The accused persons started firing
from all the four sides.
Mulaim
Singh, Munshi Singh and Itwari were killed on the roof, whereas Ram Murti, who
was assaulted with lathi, ballam and kantha on the ground, died later on. The
accused persons also took away the one barrel licensed gun of Mulaim Singh. On
the FIR lodged by Bhawar Pal Singh (PW1), the investigation commenced. The dead
bodies of the deceased persons were seized, accused arrested and after
recording the statement of witnesses, formal charge-sheet filed against the
accused persons.
To
prove their case, the prosecution examined 15 witnesses.
Bhawar
Pal Singh (PW1), Ram Saran (PW4), Ram Dayal (PW6) and Latoori (PW6) claimed to
be eye-witnesses of the occurrence. Dr.G.D. Bhaskar (PW2) was produced to prove
the injuries sustained by Ram Saran (PW4).
S.I. Onkar
Singh (PW3) proved the registration of the FIR and G.D. entry about the sending
of 6 sealed bundles of the case property to the Sadar Malkhana. Dr.M.C. Sharma
(PW7) is the doctor who had conducted the post-mortem on the dead bodies of Munshi
Singh and Itwari.
Constable
Yogendrapal Singh (PW8), Constable Gur Prasad (PW9) are formal witnesses who
took the dead body of Ram Murti to the mortuary for post mortem. Police
Constable Devinder Kumar (PW10) is a formal witness. Dr.N.P. Singh (PW11) was
examined to prove the injuries sustained by Ram Murti deceased and Ram Dayal,
injured. PW15 is the investigating officer and the other witnesses are of only
formal nature.
As
noted earlier, the trial court vide its judgment dated 19.8.1978 acquitted the
accused persons and the High Court vide the judgment impugned convicted 9 out
of 11 accused persons against whom the State had filed the appeal.
We
have heard the learned counsel of the parties at length and critically examined
the testimony of all the witnesses particularly the statements made by PWs 1,
4, 5 and 6 who were cited as eye-witnesses in the case.
Mr.K.B.
Sinha, Senior Counsel appearing for the appellants has submitted that the High
Court was not justified in interfering with the judgment of acquittal passed by
the trial court on proper appreciation of evidence. He has submitted that the
view taken by the trial court being probable, could not have been substituted
by the another view even though possible to be drawn from the circumstances of
the case.
It was
submitted that the order of acquittal could be set aside only for compelling
reasons and wherever two views are possible to be drawn, the one favourable to
the accused person should have been preferred.
The
settled position of law on the powers to be exercised by the High Court in an
appeal against an order of acquittal is that though the High Court has full
powers to review the evidence upon which an order of acquittal is passed, it is
equally well settled that the presumption of innocence of the accused persons,
as envisaged under the criminal jurisprudence prevalent in our country is further
reinforced by his acquittal by the trial court. Normally the views of the trial
court, as to the credibility of the witnesses, must be given proper weight and
consideration because the trial court is supposed to have watched the demeanour
and conduct of the witness and is in a better position to appreciate their
testimony. The High Court should be slow in disturbing a finding of fact
arrived at by the trial court. In Kali Ram v. State of Himachal Pradesh [AIR
1973 SC 2773] this Court observed that the golden thread which runs through the
web of administration of justice in criminal case is that if two views are
possible on the evidence adduced in the case, one pointing to the guilt of the
accused and the other to his innocence, the view which is favourable to the
accused should be adopted. The court further observed:
"It
is no doubt true that wrongful acquittals are undesirable and shake the
confidence of the people in the judicial system, much worse, however, is the
wrongful conviction of an innocent person. The consequences of the conviction
of an innocent person are far more serious and its reverberations cannot but be
felt in a civilised society. Suppose an innocent person is convicted of the
offence of murder and his hanged, nothing further can undo the mischief for the
wrong resulting from the unmerited conviction is irretrievable. To take another
instance, if an innocent person is sent to jail and undergoes the sentence, the
scars left by the miscarriage of justice cannot be erased by any subsequent act
of expiation. Not many persons undergoing the pangs of wrongful conviction are
fortunate like Dreyfus to have an Emile Zola to champion their cause and
succeed in getting the verdict of guilt annulled. All this highlights the
importance of ensuring, as far as possible, that there should be no wrongful
conviction of an innocent person. Some risk of the conviction of the innocent,
of course, is always there in any system of the administration of criminal
justice.
Such a
risk can be minimised but not ruled out altogether.
It may
in this connection be apposite to refer to the following observations of Sir
Carleton Allen quoted on page 157 of "The Proof of Guilt" by
Glanville Williams, Second Ediction:
"I
dare say some sentimentalists would assent to the proposition that it is better
that a thousand, or even a million, guilty persons should escape than that one
innocent person should suffer; but no responsible and practical person would
accept such a view. For it is obvious that if our ratio is extended indefinitely,
there comes a point when the whole system of justice has broken down and
society is in a state of chaos." The fact that there has to be clear
evidence of the guilty of the accused and that in the absence of that it is not
possible to record a finding of his guilt was stressed by this Court in the
case of Shivaji Sahebrao, Cri.Appeal No.26 of 1970, D/27.8.1973 = (reported in
AIR 1973 SC 2622) (supra) as is clear from the following observations:
"Certainly
it is a primary principle that the accused must be and not merely may be guilty
before a court can convict and the mental distinction between 'may be' and
'must be' is long and divides vague conjectures from sure considerations."
The High Court while dealing with the appeals against the order of acquittal
must keep in mind the following propositions laid down by this Court, namely, (i)
the slowness of the appellate court to disturb a finding of fact; (ii) the
non-interference with the order of acquittal where it is indeed only a case of
taking a view different from the one taken by the High Court.
In Antar
Singh v. State of Madhya
Pradesh [AIR 1979 SC
1188] it was held:
"This
Court has repeatedly held that although in an appeal against acquittal, the
powers of the High Court in dealing with the case are as extensive as of the
trial court, but before reversing the acquittal, the High Court should bear in
mind that the initial presumption of the innocence of the accused is in no way
weakened, if not reinforced, by his acquittal at the trial, and further, the
opinion of the trial court which had the advantage of observing the demeanour
of the witnesses, as to the value of their evidence should not be lightly
discarded. Where two views of the evidence are reasonably possible, and the
trial court has opted for one favouring acquittal, the High Court should not
disturb the same merely on the ground that if it were in the position of the
trial court, it would have taken the alternative view and convicted the accused
accordingly. In the instant case, by any reckoning, the view of Diwakar's
testimony taken by the trial court could not be said to be unreasonable or
erroneous." In Harijan Megha Jesha v. State of Gujarat [AIR 1979 SC 1566] the Court
observed that: "Even assuming that the view taken by the High Court is
correct, the circumstances clearly disclose that the view taken by the learned
Sessions Judge was also reasonably possible. Once this is so, there can be no
question of reversing the order of acquittal." To the same effect are the
judgments in Tara Singh v. State of Madhya Pradesh [AIR 1981 SC 950] and Kora Ghasi
v. State of Orissa [AIR 1983 SC 360].
In the
instant case, after appreciating the evidence produced by the prosecution, the
trial court dealt with various aspects of the matter and after negating the
existence of a criminal conspiracy, the motives and noticing inherent
contradictions, concluded:
"In
view of the above discussion, it would appear that the prosecution has not come
with the true story. The occurrence most probably took place in the night at 9
or 10 p.m. and the assailants could not be recognised. The presence of
witnesses Bhamarpal Singh and Latoori is doubtful as discussed above, and that
the presence of Pt.Ram Saran is also doubtful. His injuries are also suspicious
as discussed above. It would appears that Ram Dayal was present but he could
not recognise the assailants on account of darkness of night. He also could not
identify Brijpal and Veer Sahai at the test identification parade although he
named them. I have already discussed this matter of identification.
The defence
has also produced one witness Chimman Lal who stated that the occurrence took
place in the night.
However,
in view of the weakness of the prosecution evidence, the defence evidence need
not to be taken into account. In view of the above discussion, it is obvious
that the prosecution has failed to prove its case against Hori Lal who was
charged only under section 120-B I.P.C.
As
already discussed the evidence of conspiracy given by Kalyan is worthless and
cannot be believed. As against the other accused persons also the prosecution
has failed to prove its case beyond reasonable doubt. In the result all 11
accused persons must be held not guilty and acquitted." The High Court
agreed with the trial court so far as the allegations regarding hatching of
conspiracy was concerned but on appreciation of evidence and taking a different
possible view, convicted the eight accused persons.
What
weighed most to the trial court for acquitting the accused persons was that the
prosecution had failed to prove the case beyond reasonable doubt and the
sequence of circumstances narrated by the witnesses in the court was totally
different than the occurrence detailed in the First Information Report. In the
First Information Report it is stated that while attacking the deceased persons
the accused persons had used only guns with which they were armed. Only Ram Murti
and Ram Dayal(PWs) are stated to have been assaulted with lathi, ballam and kanta.
The aforesaid two persons are stated to have been assaulted when they were
running from the house of the complainant. It may be worth noticing that
according to the FIR, at that time, only such accused persons who were armed
with guns were on the ground whereas others are suggested to have climbed the
roof tops to murder the deceased persons, namely, Mulaim Singh, Munshi Singh,
and Itwari. None of the persons who were on the ground are stated to be armed
with any weapons other than the guns. Similarly it is not evident from the FIR
that who of the accused persons went on the roof top and with what weapons they
were armed with. The incident stated in the FIR, being the first version of the
occurrence has to be given due weight. The trial court does not appear to have
committed any glaring irregularity in disbelieving the alleged eye-witnesses
whose testimony was concededly contrary to the case of the prosecution as
projected in the FIR. It is true that the statements of PWs 1, 4, 5, and 6
cannot be thrown out merely on the ground that they are partisan witnesses or
have any enmity with some of the accused persons. However, the testimony of
such witnesses require to be judged with more circumspection. The case of the
prosecution, as sought to be proved at the trial, appears to be different than
the one as narrated in the FIR.
When
the testimony of eye-witnesses is totally different from the story set out in
the FIR, the trial court cannot be held to have taken a view which was not at
all possible. The view taken by the trial court could have been disturbed only
if there were compelling reasons. We do not find any compelling reason noticed
by the High Court while setting aside the order of acquittal.
The
trial court had further found that the prosecution had come with a new case
that the injuries to the deceased were not caused by the gun shots but with
weapons like ballam, kanta and lathi. In this regard the trial court had
noticed:
"To
explain the absence of the gun shot injuries, the prosecution at the time of
the evidence took up a new case that all the four gun-men in the party of the
accused remained on the ground and only Lathi, BALLAM AND KANTA bearing men
went up on the roofs to kill Mulaim Singh etc.
It has
also come in the evidence of two of the witnesses that the gun bearing men fired
shots from downwards in the air. Now this story is against the FIR version
where it is said, "the accused persons began to fire shots from all
together sides and the complainant's father Mulaim Singh brother Itwari and Tau
Mushi Singh were killed on the roofs by these accused persons. After killing
them, they took away the single barrel gun of his father. Ram Saran on being
hit by a shot jumped down from the roof along with his double barrel gun".
Thus the FIR will give the impression that Mulaim Singh Munshi Singh and Itwari
were also fired upon and killed on the roofs. This impression of the FIR
continued even at the time of writing of Panchayatnama. In the Panchayatnama of
Mulaim Singh, Munshi Singh and Itwari were also fired upon and killed on the roofs.
This impression of the FIR continued even at the time of writing of Panchayatnama.
In the Panchayatnama of Mulaim Singh, Munshi Singh and Itwari Exe.Ka-14, Ka-18
and Ka-22 a number of shot injuries on each one of them are noted, but the
postmortem reports show that none of them had any gun shot injury. This also
seems a very improbable story. The accused persons knew that Mulaim Singh and Pt.Ram
Saran had guns with them, hence lathi, ballams and kanta bearing people alone
will not go on the roofs leaving gun-bearing people down-ward. It is also
note-worthy that the main enmity with Mulaim Singh was of Jadunath Singh and Shyampal
Singh, who had also guns according to the prosecution case. They would have
gone forward on the roofs to kill Mulaim Singh and his brother Munshi Singh.
This
case that all the four gunmen remained on the ground was not taken even in
u/s.161 Cr.P.C. The fact that gun shot injuries were shown in the Panchayatnamas
goes to show that was the prosecution case even till then. But when it was
found that there was no gun shot injuries on any one in post mortem report,
then this new case was invented that the four gun men remained down ward on the
ground. This will go to show that no one including the complainant had seen the
occurrence and recognized the assailants." Such a view cannot be termed to
be either erroneous or highly improbable in the light of the statements of the
witnesses and the record produced before the trial court. The Panchanamas
prepared immediately after the occurrence showed that the deceased had received
gun shot injuries but when examined by the doctor and in the post mortem report
no such injury was noticed on the body of any of the deceased persons. The dead
body of Munshi Singh was not found on the roof of any house as mentioned in the
FIR but in the courtyard of the house of Jogender with injuries including
"(i)On right eye-brow clotted blood injury of bullet, (ii) on head in
between both eye brows injury bullet injury black blood clot". The panchanama
pertaining to the dead body of Mulaim Singh also showed the following injuries:
"(i)
On left chest injury near armpit at two places bloodstained gunshot injury.
(ii)
On left thigh towards left side bloodstained injury of bullet."
The
post-mortem report pertaining to Munshi Singh did not show any of the gun shot
injury and the cause of death is stated to be shock and haemorrhage. The same
is the position so far as the post-mortem report pertaining to Mulaim Singh is
concerned. We feel that the trial court was not unjustified in coming to the
conclusion that the occurrence has not taken place in the manner as stated by
the witnesses in their depositions recorded in the court. Even if another view
regarding the occurrence was possible, as taken by the High Court, the same
could not be made a basis for setting aside the order of the trial court in
view of the settled position of law on the point.
Keeping
in view the facts and circumstances of the case, particularly the variance
between the FIR and the depositions made in the court, the mention of gun shot
injuries in the panchanama and their absence in the FIR, the conflict between
the statements of eye- witnesses and the medical evidence and major
contradictions and improvements in the depositions of the eye-witnesses, we are
of the view that the prosecution failed to prove their case against the
appellants beyond all shadows of doubt. The appellants are, therefore, held
entitled to the benefit of reasonable doubt. To form an opinion giving the
appellants-accused the benefit of doubt we have kept in mind the defence as
projected and suggested by them to the witnesses during their
cross-examination.
Under
the circumstances, the appeal is allowed by setting aside the judgment of the
High Court convicting the accused persons and sentencing them to various
imprisonments including the life imprisonment. We uphold the order of acquittal
passed by the trial court in favour of the appellants. The appellants shall be
set at liberty at once unless required in some other case.
.......................J.
(M.B.
SHAH) .......................J.
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