of U.P. Vs. Atar Singh and Ors  Insc 1134 (12 November 2007)
Arijit Pasayat & D.K. Jain
APPEAL NO. 54 OF 2001 Dr. ARIJIT PASAYAT, J.
in this appeal is to the judgment rendered by a Division Bench of the Allahabad
High Court which by the impugned judgment acquitted the respondents and set
aside the conviction recorded by the learned Additional Sessions Judge in
.Sessions Trial No.316 of 1979. Each of the accused had been convicted by the
trial court and sentenced to life imprisonment under Section 302 of the Indian
Penal Code, 1860 (in short the 'IPC') read with Section 149 IPC, three months
RI under Section 323 read with Section 149 IPC, six months RI under Section 324
IPC read with Section 149 IPC and two years RI under Section 452 IPC. Accused
Jai Singh, Atar Singh, Mohan Singh, Beer Singh and Baburam were further
convicted under Section 147 IPC and sentenced to nine months RI. Accused Ramesh
and Lal Singh were however convicted under Section 148 IPC and sentenced to one
year's RI. All the sentences were directed to run concurrently. The High Court
reversed the judgment and directed acquittal in the appeal filed by the accused
version as unfolded during trial is as follows:
Ram Murti (hereinafter referred to as 'deceased') lost his life in the incident
whereas three others namely, Shyam Pal (PW 1), Sohan Pal (PW 3) and Katori Devi
sustained injuries. The incident took place on 4.5.1979 at about 6.30 P.M. in village Balli Nagla, Police Station Qadarchowk,
District Budaun. The report of the incident was lodged by Shyam Pal (PW 1) on
5.5.1979 at 3.15 A.M. The distance of police station from
the place of occurrence is 8 kms. The accused- respondents Lal Singh and Ramesh
were allegedly armed with spears whereas rest had lathis. The
accused-respondents Jai Singh, Atar Singh, Lal Singh, Mohar Singh and Beer
Singh are the sons of Dallu who also allegedly participated in the incident but
died after few days of the incident. About 6 months before this incident, Durgapal-brother-in-law
of Shyam Pal (PW 1) had abducted Dhika daughter of Dallu.
began to bear ill will against him and his family members on this account. On 4-5-79 at about 6.30 P.M.,
exchange of hot words and abuses took place between Shyam Pal (PW 1) and Dallu
at the Chaupal of Nek Ram in connection with abduction of Dhika. Some persons
intervened in the matter and Shyam Pal went to his home. A little later, all
the accused-respondents along with Dallu entered the house of Shyam Pal. As
mentioned earlier, Lal Singh and Ramesh were armed with spears whereas rest had
asked the other accused persons to teach a lesson to Shyam Pal and his family
members for defaming him. All the accused-respondents then started assaulting Shyam
Pal (PW 1) and his brothers Sonpal and Ram Murti who were present there. When
their mother Katori Devi came to their rescue, she was also beaten up. Nathu
Singh (PW 2), Ulnfat Irfan, Prem Pal and others also arrived there. Shyam Pal
(PW 1), Ram Murti, Sohan Pal (PW 3) and their mother Katori Devi sustained
injuries. Shyam Pal (PW 2) with his nephew Prempal went to the police station
and lodged a report by oral narration on 5.5.1979 at 3.15 A.M. which was taken down by head constable Baburam (PW 4).
Investigation was undertaken and on completion thereof, charge sheet was filed.
Accused persons pleaded innocence. In order to further accusations, prosecution
examined eleven witnesses. Learned trial Judge recorded conviction primarily
relying on the evidence of injured witnesses.
firstly noticed by the High Court that the motive assigned by the prosecution
against the accused respondents did not stand the test of logic. The incident
of kidnapping and abduction of Dhika daughter of Dallu by Durgapal-brother-in-
law of Shyam Pal (PW-1) had taken place about six months before. Even no FIR
had been lodged against Durgapal from the side of accused persons regarding
that incident. It was admitted by PW-1 that even no Panchayat was convened.
Shyam Pal (PW-1) had admitted that at the time of exchange of hot words with Dallu
at the Chaupal of Nek Ram, two persons namely, Nek Ram and Urman Singh were
there who had intervened. None of them was produced by the prosecution to
indicate the origin of the incident. Dallu himself was a T.B. patient and the
High Court found it hard to believe that after alleged exchange of hot words at
the Chaupal of Nek Ram, he with all his sons, brother and nephew would have
appeared in the house of PW-1 to assault him and his family members.
Accordingly, it was held that even there was no immediate motive for the
also noted that there was no corroboration to the prosecution version by any
independent witnesses. Nathu Singh (PW-2) was resident of another village who
claimed to be present at the place of occurence. He stated that he had come to
the village to meet his relative. According to him the house of Rajpal was
situated at a distance of 15-16 paces from the place of incident. The High Court
noted that the existence of Rajpal's house in the vicinity of place of
occurrence had not been shown in the site plan. The High Court found that some
parts of his statement could not be re-conciled with other parts eg. that he
had reached the village of incident at 6.30 a.m. and was present at the time of incident which took place about 12 hours
later. His statement was to the effect that he had gone to his son- in-law Rajpal
as the latter was about to go to his father-in-law's house and he wanted to
send some cows to his father-in-law. He wanted to send this information to his
father-in-law but his cousin-in-law was not available.
also stated that after some time he had returned to his village. The High Court
found his presence to be not established. The High Court also noted that Sohan
Pal (PW-3) who claimed to be an eye witness was the brother of PW-1.
High Court noted that even though in the FIR names of some other persons have
been noted as witnesses, none of them had been examined. The High Court was of
the view that statement of the deceased recorded by the investigating officer
under Section 161 of the Code of Criminal Procedure, 1973 (in short the 'Cr.P.C.')
cannot be treated to be the dying declaration. The investigating officer
(PW-11) noted that when he reached the spot in the morning of 5.5.1979
subsequent to the lodging of the FIR at about 3.15 a.m. he had found the deceased, Sohan Pal and Katori to be lying
there in injured condition. He recorded the statement of the deceased (Exh.Ka. 20).
High Court referred to the bed head ticket of the deceased in which it was
stated that his general condition was noted low when he was admitted in the
hospital on 5.5.1979.
High Court also noted the admitted position that the investigating officer did
not follow the instructions contained in Rule 115 of the U.P. Police
Regulations relating to recording of dying declaration. Reference was made to a
decision of this Court in Palak Ram v. State of U.P. (AIR 1974 SC 2165) wherein
it was noted that it would not be prudent to base conviction on a dying
declaration made to the investigating officer which is not signed by the
persons making it and has not been taken in the presence of two witnesses.
High Court also noted that there was no explanation offered as to why the dying
declaration was not recorded in the presence of the Magistrate which is the
usual course, though he died on 7.5.1979 at about 4.00 p.m. Therefore, the High Court treated the same to be a
statement recorded in terms of Section 161 of Cr.P.C. which cannot be treated
to be a dying declaration.
High Court also noted another factor which according to it was significant,
i.e. the presence of large number of injuries on accused Mohar Singh for which
no explanation was offered. This according to the High Court cast a genuine
doubt about the actual time, place, number of assailants and weapons for the
injuries. The High Court noted that injuries on accused Mohar Singh were not
superficial and some of them were even incised wounds. The investigating
officer had admitted that Mohar Singh was arrested on 6.5.1979. The High Court
found it rather unusual that he was produced for medical examination before a
Doctor Shiv Kumar Saxena (PW-5) on 5.5.1979 at 5.20 p.m. by a constable of the Police Station. Therefore, the High
Court noted that if there was no explanation offered as to why he was not
arrested on 5.5.1979, the FIR was claimed to have been lodged at 3.15 a.m. on that day. The High Court noted that though PW-1
and PW-3 were stated to be injured witnesses in the background facts the
prosecution version was highly improbabilised. The evidence of PW-2 was found
to be not truthful. As a cumulative result of the discussions the High Court
found that the prosecution has not been able to substantiate its version.
noted above, the State has questioned correctness of the conclusions recorded
by the High Court. With reference to the evidence of injured witnesses, PW-1
and PW-3 it is stated that they are injured witnesses and their version was to
be taken as credible and cogent. There was no reason as to why the injured
person would falsely implicate the innocent person.
appeared for the respondents when the matter was called.
is no embargo on the appellate Court reviewing the evidence upon which an order
of acquittal is based. Generally, the order of acquittal shall not be
interfered with because the presumption of innocence of the accused is further
strengthened by acquittal. The golden thread which runs through the web of administration
of justice in criminal cases 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 paramount consideration of the Court is to ensure that miscarriage of
justice is prevented. A miscarriage of justice which may arise from acquittal
of the guilty is no less than from the conviction of an innocent. In a case
where admissible evidence is ignored, a duty is cast upon the appellate Court
to re-appreciate the evidence where the accused has been acquitted, for the
purpose of ascertaining as to whether any of the accused really committed any
offence or not. [See Bhagwan Singh and Ors. v. State of Madhya Pradesh (2002 (2) Supreme 567)]. The
principle to be followed by appellate Court considering the appeal against the
judgment of acquittal is to interfere only when there are compelling and
substantial reasons for doing so. If the impugned judgment is clearly
unreasonable and relevant and convincing materials have been unjustifiably
eliminated in the process, it is a compelling reason for interference. These
aspects were highlighted by this Court in Shivaji Sahabrao Bobade and Anr. v.
State of Maharashtra (AIR 1973 SC 2622), Ramesh Babulal Doshi
v. State of Gujarat (1996 (4) Supreme 167), Jaswant
Singh v. State of Haryana (2000 (3) Supreme 320), Raj Kishore
Jha v. State of Bihar and Ors. (2003 (7) Supreme 152),
State of Punjab v. Karnail Singh (2003 (5) Supreme
508 and State of Punjab v. Pohla Singh and Anr. (2003 (7)
Supreme 17) and V.N. Ratheesh v. State of Kerala (2006(10) SCC 617).
rightly contended by learned counsel for the appellate-State in isolation the
circumstances highlighted by the High Court may not be sufficient to direct
acquittal. Two important factors which have been noted by the High Court are (i)
non explanation of injuries on accused Mohar Singh and (ii) the reason for his
non arrest on 5.5.1979 when he had appeared before the police officers and had
been sent for medical examination.
shall first deal with the question regarding non- explanation of injuries on
the accused. Issue is if there is no such explanation what would be its effect?
We are not prepared to agree with the learned counsel for the defence that in
each and every case where prosecution fails to explain the injuries found on
some of the accused, the prosecution case should automatically be rejected,
without any further probe. In Mohar Rai and Bharath Rai v. The State of Bihar (1968 (3) SCR 525), it was
our judgment, the failure of the prosecution to offer any explanation in that
regard shows that evidence of the prosecution witnesses relating to the
incident is not true or at any rate not wholly true. Further those injuries probabilise
the plea taken by the appellants."
another important case Lakshmi Singh and Ors. v. State of Bihar (1976 (4) SCC 394), after referring
to the ratio laid down in Mohar Rai's case (supra), this Court observed:
the prosecution fails to explain the injuries on the accused, two results
the evidence of the prosecution witnesses is untrue; and (2) that the injuries probabilise
the plea taken by the appellants."
further observed that:
a murder case, the non-explanation of the injuries sustained by the accused at
about the time of the occurrence or in the course of altercation is a very
important circumstance from which the Court can draw the following inferences:
the prosecution has suppressed the genesis and the origin of the occurrence and
has thus not presented the true version;
the witnesses who have denied the presence of the injuries on the person of the
accused are lying on a most material point and, therefore, their evidence is
that in case there is a defence version which explains the injuries on the
person of the accused assumes much greater importance where the evidence
consists of interested or inimical witnesses or where the defence gives a
version which competes in probability with that of the prosecution one."
Rai's case (supra) it is made clear that failure of the prosecution to offer
any explanation regarding the injuries found on the accused may show that the
evidence related to the incident is not true or at any rate not wholly true.
Likewise in Lakshmi Singh's case (supra) it is observed that any non-
explanation of the injuries on the accused by the prosecution may affect the
prosecution case. But such a non-explanation may assume greater importance
where the defence gives a version which competes in probability with that of
the prosecution. But where the evidence is clear, cogent and creditworthy and
where the Court can distinguish the truth from falsehood the mere fact that the
injuries are not explained by the prosecution cannot by itself be a sole basis
to reject such evidence, and consequently the whole case. Much depends on the
facts and circumstances of each case. These aspects were highlighted by this
Court in Vijayee Singh and Ors. v. State of U.P.
(AIR 1990 SC 1459).
of injuries by the prosecution will not affect prosecution case where injuries
sustained by the accused are minor and superficial or where the evidence is so
clear and cogent, so independent and disinterested, so probable, consistent and
creditworthy, that it outweighs the effect of the omission on the part of
prosecution to explain the injuries. As observed by this Court in Ramlagan
Singh v. State of Bihar (AIR 1972 SC 2593) prosecution is
not called upon in all cases to explain the injuries received by the accused
persons. It is for the defence to put questions to the prosecution witnesses
regarding the injuries of the accused persons. When that is not done, there is
no occasion for the prosecution witnesses to explain any injury on the person
of an accused. In Hare krishna Singh and Ors. v. State of Bihar (AIR 1988 SC 863), it was observed
that the obligation of the prosecution to explain the injuries sustained by the
accused in the same occurrence may not arise in each and every case. In other
words, it is not an invariable rule that the prosecution has to explain the
injuries sustained by the accused in the same occurrence. If the witnesses
examined on behalf of the prosecution are believed by the Court in proof of
guilt of the accused beyond reasonable doubt, question of obligation of
prosecution to explain injuries sustained by the accused will not arise. When
the prosecution comes with a definite case that the offence has been committed
by the accused and proves its case beyond any reasonable doubt, it becomes
hardly necessary for the prosecution to again explain how and under what
circumstances injuries have been inflicted on the person of the accused. It is
more so when the injuries are simple or superficial in nature. In the case at
hand, trifle and superficial injuries on accused are of little assistance to
them to throw doubt on veracity of prosecution case. (See Surendra Paswan v.
State of Jharkhand (2003) 8 Supreme 476).
the cumulative effect of circumstances which have weighed with the High Court
to direct acquittal, it cannot be said that the view taken by the High Court is
not a plausible view. That being so, we are not inclined to interfere with the
order of acquittal. The appeal deserves to be dismissed which we direct.