Full Judgment Text
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PETITIONER:
STATE OF UTTAR PRADESH
Vs.
RESPONDENT:
LALLOO & OTHERS.
DATE OF JUDGMENT13/08/1985
BENCH:
VARADARAJAN, A. (J)
BENCH:
VARADARAJAN, A. (J)
FAZALALI, SYED MURTAZA
CITATION:
1986 AIR 576 1985 SCR Supl. (2) 543
1985 SCC Supl. 379 1985 SCALE (2)297
ACT:
A. Murder trial - Evidence of eye witnesses,
appreciation of - Probability of their presence at the scene
of occurrence of the crime - Section 3 of the Evidence Act.
B. First Information Report - Can the authorship of the
First Information Report be doubted, just because the report
is long and contains all the details - Sections 144 and 145
of the Code of Criminal Procedure (Act II of 1974), 1973
read with Section 114 of the Evidence Act.
C. Conviction and sentence - Where two views leading to
the guilt of the accused, on the evidence available on
record are not possible, conviction is justified - Even in
case of gruesome and cold-blooded murder long delay in
hearing an appeal justifies conversion of death sentences
into one of life imprisonment Supreme Court Rules, 1966
Order XXII read with order XLVI and Article 142(1) of the
Constitution.
HEADNOTE:
Respondent Laloo and three others were charged,
convicted, and sentenced to death for the commission of the
offence of murder under section 302 IPC read with section 34
IPC of the deceased Babu Jaleshwar Singh under bright
moonlight and at about 8 p.m. On 24.9.1974, while he was
accompanied by the three eye witnesses, Ram Surat (PW 1),
Subhan Sain (PW 2), Bansidhar (PW 3). The prosecution case
was; (a) that there was a long standing enmity between the
accused and the deceased Jaleshwar Singh who was a leading
land owner and agriculturist of Mangalpura and the Pradhan
of that village for over 18 or 20 years before the date of
occurrence; (ii) that the deceased had stated in his
complaint Ex. KA-13 dated 14.2.1973 that the accused and the
one Chandrika Mallah were planning to kill him due to
election and litigation enmity and were collecting money for
that purpose amongst themselves; (iii) that the accused and
others had moved two complaints for the removal of the
deceased as Pradhan of Mangalpura; that while the first
complaint had been rejected by the Sub-divisional Officer,
Ballia on 10.5.1974, the second
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complaint was pending enquiry before that Officer at the
time of his death and factually the deceased accompanied by
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PWs 1 to 3 was returning after attending the case posted on
that day; (iv) that while they were returning, at the end of
the Moonj jungle situate about 1-1/2 furlongs away from
Mangalpura village the accused respondents attacked the
deceased with the tamancha (country-made pistol) and daos
(long heavy knives used for slaughtering goats and cutting
wood); (v) that it was Lalloo who fired with his tamancha
and the deceased fell down after receiving injury on his
chest and on his exhortion to severe his neck the others
Ganga Dayal Gond, Sri Kishun Chamar and Jagan Nath Godaria
pounced upon the deceased and cut the neck; (vi) that when
PWs 1 to 3 shouted in disapproval of what the respondents
were doing, Lalloo pointed his tamancha towards them and
threatened to kill them and getting frightened they ran
towards Gosainpur and after informing Ayodhaya and Sheo that
the respondents had attacked the deceased they rushed to
Mangalpura where they met Kharag Bahadur (PW 6) and others
and informed them also about the attack on the deceased by
the respondents accused; (vii) that the first information
report was written by Raghubans Tiwari (PW 16) of Mangalpura
with the particulars furnished by PW 1 at the spot at about
9 p.m. On 24.9.74, and later handed over by PW 1 at Bansidh
Police Station, PW 15; (viii) that PW 15 left the police
station along with PW 1 and others for the scene of
occurrence at 1.30 a.m. On 25.9.74 and began his
investigation at the spot at 4 a.m.; (ix) that the headless
body was identified to be that of the deceased Jaleshwar
Singh by PWs 1,3,6 and 16 and Bachchalal (PW 5) - all of
whom belonged to Mangalpura; (x) that autopsy on the body bf
the deceased disclosed, incised wound severing the neck
completely, multiple gun shot wounds on the upper part of
the front chest, and abraded contusions over the upper part
of the hip; and (xi) that the doctor opined that death was
due to severence of the neck by a sharp-edged and heavy
cutting weapon and that the injury to the neck was
sufficient in the ordinary course of nature to cause death.
For coming to the conclusion as to conviction and
sentence, the Trial Court accepted the evidence of PWs 1 to
3 who were
Examined as eye witnesses and also the evidence of PW 5 and
6 and relied upon the First Information Report given by PW
1. But on appeal, the Learned Judges of the High Court
suspected the genuineness of the First Information Report as
being that of PW 1 for the reason that it was quite long and
contained all the details, rejected the evidence of PWs 1 to
3 about the occurrence and acquitted the respondents,
although they found that the
545
factum of the occurrence of the crime, the prosecution case
with A regard to its time and the weapons used in the
assault fully corroborated by medical evidence while the
recovery of blood fixed the venue of the crime. Hence the
appeal by the state.
Allowing the appeal and while confirming their
convictions, the Court altered the sentence of death passed
on them to that of K imprisonment and
^
HELD: 1.1 A thorough and careful analysis of the evidence on
record shows that the evidence of PWs 1 to 3 are true and
reliable and that they were present at the scene and at the
time of the commission of the offence. And this is not a
case where two views of the evidence available on record are
possible. [555 D-F]
1.2 It cannot be said that if there are ten pieces of
circumstantial evidence in a case, an inference that the
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investigating officer did not have honest belief in the
truth of the proceedings nine pieces of circumstantial
evidence, merely because he had brought on record even the
tenth piece of circumstantial evidence. [551 E-F]
1.3 Exhibit Ka-1 is the only first information report
in the case and that it was scribed by PW 16 at the spot on
the basis of particulars furnished by P.W. 1 at 9 p.m. and
handed over by P.W.1 at the police station at about 11.30
p.m. On the same day and that only after a case had been
registered on the basis of that first information report,
P.W.15 left the police station along with P.W.1 and others
at 1.30 a.m. On 25.9.1974 and reached the scene of
occurrence at 4 a.m. To contend that PW 1 is not the author
of the first information report and it was recorded at the
police station at 11 a.m. On 25.9.1974 on the evidence of
P.W.16 who is a self-condemned witness who had been treated
as hostile to the prosecution will not only be inconsistent
but also incorrect. If it had been recorded only at that
time it is improbable that copies thereof would have been
delivered by PW 14 to the higher authorities in the morning
of 25.9.1974. [553 B,D]
1.4 No adverse inference can be drawn from the cross-
examination of PW 15 to the effect that the first parcha of
the case diary which is dated 25.9.1974 bears the signature
of the Deputy Superintendent of police and endorsement of
his office has made on 28.9.1974 and without the seal of
that office. That there was delay in the receipt of the
copies of relevant records from the
546
police station in the office of the Superintendent of Police
though even according to the evidence of PW 16 which is
unreliable the first information report was in existence at
least at 11 a.m. On 25.9.1974 is incorrect. [552 G-H, 553 A-
B]
1.5 The facts that P.W.1 was seen by PW 6 soon after
the occurrence, and he got the first information report
scribed by PW 16 at 9 p.m. On 24.9.74 itself and handed it
over at the police station at 11.30 p.m. On the same day and
accompanied PW 15 from the police station to the scene of
occurrence at 1.30 a.m. On 25.9.74 probablise the evidence
of PW 1 that he had gone to Ballia on 24.9.74 and left that
place for Mangalpura by a bus along with the deceased. [553
G-H, 554 A B]
1.6 The name of PW 1 not finding a place in the order
sheet of the Trial Court at Ballia is not a sure base for
holding that he could not have gone to Ballia on 24.9.1974.
Equally the evidence of PW 2 to the effect that much jungle
falls in the first route and therefore people go by that
route only during the day time while the second route which
is plain is normally taken by the commutors during night is
convincing. The High Court failed to take note of the fact
that it was night time and PW 2 would have had the company
of the deceased and PW8 1 and 3. Further the examination of
PW 15 at Mangalpura by PW 1 to 3 on 25.9.1974 itself also
probablises their presence and witnessing the occurrence of
the crime. PW 1 alone belongs to Mangalpura while PWs 2 and
3 belongs to different villages. PWs 2 and 3 are independent
witnesses and PW 1 is a respectable witness as he is a
member of the Gram Sabha and President of the Co-operative
Society, though admittedly he was the pairokar of the
deceased in the case for which he had gone to Ballia on
24.9.1974 which has a little importance. [554 B-G, 555 A,D-
E]
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JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
320 of 1977.
From the Judgment and Order dated 27.10.1976 of the
Allahabad High Court in Criminal Appeal No. 1411 of 1976.
Dalveer Bhandari and Manoj Prasad for the appellants.
R.K.Garg, L.R. Singh, N.M. Popli and V.J. Francis for the
respondents.
The Judgment of the Court was delivered by
547
VARADARAJAN, J. This appeal by special is by the State
of Uttar Pradesh against the acquittal of the respondents
Lalloo, Ganga Dayal Gond, Sri Kishun Chamar and Jagan Nath
Godaria by the High Court, reversing the judgment of the
trial court which convicted them and sentenced them to death
under section 302 IPC for the murder of one Babu Jaleshwar
Singh at about 8 p.m. On 24.9.1974.
The case of the prosecution has been set out in the
judgments of the courts below. Therefore, it is not
necessary to set out in detail the facts of the case in this
judgment. Suffice it to say that the prosecution case is
that there was long standing enmity between the respondents
and the deceased Jaleshwar Singh who was a leading land
owner and agriculturist of Mangalpura and the Pradhan of
that village for 18 or 20 years before he was murdered at
about 8 p.m. On 24.9,1974 at the end of the Moonj jungle
situate about 1-1/2 furlongs away from Mangalpura village
when he was coming along the footpath running through that
moonj jungle in the company of Ram Surat (PW 1), Subhan Sain
(PW 2), Bansidhar (PW 3) by the respondents attacking him
with a tamancha (country-made pistol) and daos (long heavy
knives used for slaughtering goats and cutting wood). There
was bright moonlight during that night it being the day of
Bhado Sudi 9 and there were also torch-lights with P.Ws. 1
and 3. PWs. 1 to 3 belongs respectively to Mangalpura, Ram
Nagar and Shankerpura which is situate about 1-1/2 miles
north of Mangalpura. P.W.1 is Adhyaksha (President) of the
Co-operative Society of Mangalpura besides being a member of
the Gram Sabha of that village. The respondent Jagan Nath
belongs to Gosainpur which being a nearby village is
included in Mangalpura Gram Sabha while the other three
respondents belong to Mangalpura itself. The respondent,
Jagan Nath is also a member of the same Gram Sabha. There
was admittedly long-standing enmity between the respondents
and the deceased Jaleshwar Singh right from 1959. The
deceased had stated in his complaint Ex.Ka-13 dated
14.2.1973 that the respondents and one Chandrika Mallah were
planning to kill him due to election and litigation enmity
and were collecting money for that purpose amongst
themselves. The respondents and others had moved two
complaints for the removal of the deceased as Pradhan of
Mangalpura. m e first of those complaints had been rejected
by the Sub-Divisional Officer, Ballia on 10.5.1974 while the
second was pending enquiry before that Officer at the time
of his death. The deceased accompanied by PWs 1 to 3 was
returning on 24.9.1974 from Ballia where he had gone in
connection with the enquiry into the second complaint which
had been posted on that day. The facts relating to the
admitted enmity between the respondents and the deceased are
mentioned in para 10 of the trial court’s judgment.
548
When the deceased was going a little ahead of PWs. 1 to
3 in the eastern end of the moonj jungle, the respondents
emerged from the moonj plants, armed, Lalloo with a
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tamancha, Sri Kishun and Ganga Dayal with daos and Jagan
Nath with a whip. Lalloo fired with his tamancha and the
deceased fell down after receiving
injury on his chest. Therefore, Lalloo exhorted the other
respondents for cutting the neck of the deceased whereupon
the other respondents pounced upon the deceased for severing
his neck. When P.Ws 1 to 3 shouted in disapproval of what
the respondents were doing, Lalloo pointed his tamancha
towards them and threatened to kill them. They, therefore,
got frightened and ran towards Gosainpur and after informing
Ayodhaya and Sheo that the respondents had attacked the
deceased they rushed to Mangalpura where they met Kharag
Bahadur (PW 6) and others and informed them also about the
attack on the deceased by the respondents. Subsequently all
of them went to the scene of occurrence and found the
deceased’s headless body lying in a pool of blood.
The first information report was written by Raghubans
Tiwari (PW 16) of Mangalpura with the particulars furnished
by PW 1 at the spot at about 9 p.m. On 24.9.1974. It was
handed over by P.W.1 at Bansidh police station at 11.30 p.m.
On 24.9.1974 to the Sub-Inspector of police P.W.15. P.W.15
left the police station along with P.W 1 and others for the
scene of occurrence at 1.30 a.m. On 25.9.1974 and he began
his investigation at the spot at 4 a.m.
The headless body was identified to be that of the
deceased Jaleshwar Singh by PWs. 1,3,6 and 16 and Bachchalal
(P.W 5) all of whom belong to Mangalpura. The trunk was
further identified to be that of the deceased Jaleshwar
Singh with reference to the towel(Ex. II), ganj (Ex.III),
kurta (Ex.IV), dhoti (Ex.V), chhata (Ex.VI), hand-kerchief
(Ex.XI), letter (Ex.XII) addressed to the deceased on which
he had written that he had given Rs. 10 to PW 1 for bringing
witnesses and thumb-impression of the deceased which had
been compared with his undisputed thumb impression. Autopsy
on the body of the deceased Jaleshwar Singh disclosed (1)
incised
wound severing the neck completely; (2) multiple gun shot
wounds on the upper part of the front chest and (3) abraded
contusions over the upper part of the hip. The doctor opined
that death was due to severance of the neck by a sharp-edged
and heavy cutting weapon and that the injury to the neck was
sufficient in the ordinary course of nature to cause death.
The entire prosecution case against the respondents
rests on the evidence of PWs 1 to 3 who were Examined as
eye-witnesses and
549
also on the evidence of PWs 5 and 6. The learned Sessions
Judge accepted their evidence and relied upon the first
information report given by PW 1 and found that all the
respondents had committed the brutal murder of Jaleshwar
Singh on account of the admitted enmity and he accordingly
convicted and sentenced them to death under section 302 read
with section 34 I.P.C. But on appeal the learned Judges of
the High Court suspected the genuineness of the first
information report as being that of PW 1 and rejected the
evidence of PWs 1 to 3 about the occurrence and acquitted
the respondents although they found:
"The medical evidence leaves no room for doubt as
to the factum of the occurrence, and the
prosecution case with regard to its time and the
weapons used in the assault also receives broad
corroboration from it. The place of occurrence
(near the eastern end of- the jungle of moon;
plants in village Mangalpura) is also fixed up by
the recovery of blood from there."
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The case of the prosecution is that the informant PW 1
got the first information report scribed by PW 16 at the
spot at about 9 p.m. On 24.9.1974 and presented it at the
police station at 11.30 p.m. On the same day to the Sub-
Inspector of police PW 15 and that PW 15 left the police
station after registering the case to the scene of
occurrence along with PW 1 and others at 1.30 a.m. On
25.9.1974 and began his investigation at 4 a.m. The names of
the respondents as the assailants of the deceased as well as
the names of PWs. 1 to 3 as those of eye-witnesses are
mentioned in the first information report and all the three
witnesses had been examined by PW 15 on 25.9.1974 itself
although, as stated earlier, PW 1 alone belongs to
Mangalpura and PWs. 2 and 3 belong to Shankerpura and Ram
Nagar respectively. The prosecution relied on the evidence
of PW 5 who has stated that he saw all the respondents
sitting and talking under cover of the munjahani near about
the scene of occurrence at about nightfall on 24.9.1974 and
that at about 8.30 or 8.45 p.m. On that day he heard shouts
that the respondents whose names he has mentioned were
beating Babu Jaleshwar Singh. On hearing those shouts PW 5
ran and on the way he met PW 6 and others and he went along
with them to the scene of occurrence and saw the headless
body of the deceased Jaleshwar Singh lying there. The
evidence of PW 6 is that when he was sitting at his house at
about 8 p.m. On the day of occurrence he heard the alarm
"Run up people, I am being killed". He took up lathi and
lantern and asked his companions to proceed, and when all of
them were about 50 yards
550
away from the out-skirts of the village, PW 6 saw PW 1 and
others coming and PW 1 told him that Lallo had shot the
deceased Jaleshwar Singh with pistol, that Sri Kishun and
Ganga Dayal armed with daos and Jagan Nath armed with Kora
(whip) were sitting on the chest of the deceased and Lalloo
had said "cut the neck of salaPradhan" and that they (PWs 1
to 3) ran away from the scene when Lalloo aimed and pistol
at them. Thereafter PW 6 and others went to the scene of
occurrence and found the headless body of Jaleshwar Singh
lying there, and subsequently PW 1 got the report written by
PW 16 and proceeded with it to the police station.
The learned Judges of the High Court rejected the first
information report of two grounds, namely, that it is quite
long and contains all the details and that PW 1 is not the
author of its contents. They rejected the evidence of PWs 1
to 3 as unreliable but accepted the evidence of PW 16 that
he wrote the first information report at the police station
in the presence of his own father and others to the
dictation of PW 15. They acquitted the respondents and set
aside the conviction and the sentence awarded to them by the
trial court.
Mr. Dalveer Bhandari, learned counsel for the appellant
State of Uttar Pradesh took us through the evidence of PWs 1
to 3 and the other witnesses as also through the judgments
of the courts below and submitted that the learned Judges of
the High Court were not justified in holding that PW 1 is
not the author
of the first information report and that it was written by
PW 16 at the police station to the dictation of PW 15. He
also submitted that the learned Judges of the High Court
were not justified in rejecting the evidence of the eye-
witnesses. PWs. 1 to 3 also of PWs. 5 and 6 and acquitting
the respondents. On the other hand, Mr. R.K. Garg, learned
counsel for the respondents submitted that the first
information report is not the "brain child" of PW 1 and that
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it had been prepared at 11 a.m. on 25.9.1974 as stated by PW
16 after PW 15 had visited the scene of occurrence and seen
the injuries found on the headless body of the deceased
Jaleshwar Singh. He submitted that the evidence of PW 1 that
he had gone to Ballia in connection with the enquiry into
the complaint filed for the removal of the deceased
Jaleshwar Singh from the office of Pradhan of Mangalpura
village and that he was accompanying h m from Ballia and was
present at the time of the occurrence is not believable at
all having regard to the fact that although it is stated in
the first information report that PW 1 went to Ballia
alongwith the deceased Jaleshwar Singh he has admitted in
his evidence that he did not go with the
551
deceased to Ballia and stated that he went to Ballia
separately and reached the office of the Sub-Divisional
Officer only at about 1.30 p.m. On 24.9.1974 and also that
his name is not mentioned in the order sheet relating to
that case. He further submitted that the learned Judges of
the High Court were justified in rejecting the evidence of
not only PW 1 but also of PWs. 2 and 3 as unreliable and
that it would appear from the fact that the investigating
officer had gone in search of circumstantial evidence by way
of dress, shoes, letter, thumb-impression etc., mentioned
above for identifying the headless trunk as that of the
deceased Jaleshwar Singh that he did not believe the
testimony of PWs. 1 to 3 who are put forward as eye-
witnesses in the case.
In our opinion the submission that the investigating
officer PW 15 had no faith or honest belief in the testimony
of PWs. 1 to 3 regarding the identity of the headless trunk
as that of the deceased Jaleshwar Singh merely because he
had looked up for other circumstantial evidence to connect
the headless trunk with the deceased Jaleshwar Singh has to
be stated only to be rejected, for it is impossible to hold
from the fact that the investigating officer looked up for
some corroborative circumstantial evidence that he did not
have faith or belief in the testimony of PWs. 1 to 3 as
regards the identity and therefore it is not possible to
rely upon the evidence of PWs.1 to 3 as regards the identity
and therefore it is not possible to rely upon the evidence
of PWs 1 to 3 that they witnessed the occurrence. It will be
unreasonable to hold chat if there are 10 pieces of
circumstantial evidence in a case an inference that the
investigating officer did not have honest belief in the
truth of the preceding 9 pieces of circumstantial evidence
merely because he had brought on record even the tenth piece
of circumstantial evidence.
The learned Judges of the High Court were not justified
in basing their conclusion that PW 1 is not the author of
the first information report and that it was recorded at the
police station at 11 a.m. On 25.9.1974 on the evidence of PW
16 who is a selfcondemned witness who had been treated as
hostile to the prosecution. It is not possible to accept the
evidence of PW 16 who was admittedly present in the police
station along with his father and others and had consulted
his father before writing the first information report and
wrote it after his father asked him to write it that he
wrote it to the dictation of PW 15 at 11 a.m. On 25.9.1974
and dated it as 24.9.1974 as desired by PW 15. The evidence
of PW 16 is highly discrepant, for he has stated in one
552
portion of his evidence that along with his father and
others he reached the police station at about 10 a.m. On
25.9.1974 and returned from there at about 11 a.m. leaving
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only PW 1 at that place. In another portion of his evidence
he has stated that PW 15 came to the scene of occurrence at
8 or 9 a.m. On 25.9.1974 and that he (PW 16) started along
with others to proceed to the
police station for the scene of occurrence only at about 9
a.m. On that day when PW 15 arrived. he has further stated
PW 15 started for the scene of occurrence after he and the
other persons reached the police station and that too only
after the first information report was lodged at the police
station. He has also stated that he too accompanied PW 15
when he started from the police station at 10 or 10.30 a.m.
and that he does not know at what time PW 15 reached the
scene of occurrence. Thus, it is seen that PW 16 has given
highly discrepant evidence regarding the time at which he
reached the police station along with his father and others
including PW 1 as also about the time at which he claims to
have written the first information report to the dictation
of PW 15 after getting the approval of his father for
writing the same.
The evidence of Uma Shankar Upadhya (PW 10) who was
Head Constable at Bansidh police station is that PW l came
to the police station at 11.30 p.m. On 24.9.1974 with the
first information report (Ex.Ka-1) and that on the basis of
that report he prepared the check report (Ex.KA-21). It has
been elicited in his cross-examination that Constable Ram
Naresh Singh (PW 14) left the police station carrying the
special reports to his superior officers at 6.05 a.m. On
25.9.1974. In answer to questions put to him in cross-
examination PW 14 has stated that he carried the special
reports to his superior officers from the police station in
the morning of 25.9.1974. The investigating officer (PW 15)
has stated in his evidence that after receipt of the first
information report at the police station in his presence he
took up investigation immediately and left the police
station to the scene of occurrence along with PW 1 and
others at about 1.30 a.m. On 25.9.1974 and reached the scene
of occurrence at about 4 a.m. after some delay as he had to
cross a river on the way and wait for some time to call the
boats-men. No doubt it has been elicited from PW 15 in the
cross-examination that the first parcha of the case diary
which is dated 25.9.1974 bears the signature of the Deputy
Superintendent of Police made on 28.9.1974 but not the seal
of that office. From that fact alone it could not be
inferred that there was delay in the receipt of the copies
of relevant records from the police station in the
553
office of the Superintendent of Police though it may be that
the A endorsement in that office had been made only on
28.9.1974, for even according to the evidence of PW 16 which
is unreliable the first information report was in existence
at least at 11 a.m. On 25.9.1974. In these circumstances, we
accept the evidence of PW 16 and find that Ex.Ka-1 is the
only first information report in the case and that it was
scribed by PW 16 at the spot on the basis of particulars
finished by PW 1 at 9 p.m. and handed over by PW 1 at the
police station at about 11.30 p.m. On the same day and that
only after a case had been registered on the basis of that
first information report PW 15 left the police station along
with PW 1 and others at 1.30 a.m. On 25.9.1974 and reached
the scene of occurrence at 4 a.m. The learned Judges of the
High Court, in our opinion, erred grievously in holding on
the unreliable evidence of PW 16 alone that the first
information report (Ex.Ka-1) was recorded at the police
station at 11. a.m. On 25.9.1974. If it had been recorded
only at that time it is improbable that copies thereof would
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have been delivered by PW 14 to the higher authorities in
the morning of 25.9.1974 itself.
The learned Judges of the High Court have rejected the
evidence of PW 1 for two reasons, namely (1) that whereas he
had stated in the first information report that he went to
Ballia along with the deceased on 24.9.1974 he has stated in
his evidence that he went to Ballia only later at about 1.30
p.m. On that day and did not accompany the deceased from
Mangalpura and (2) that the name of PW 1 is not mentioned in
the order-sheet of the Sub-Divisional Officer, Ballia
relating to the case in connection with which the deceased
had gone to Ballia on that day. No doubt there is
discrepancy between the recital in the first information
report and the evidence of PW i on the question whether PW 1
went along with the deceased to Ballia on 24.9.1974 or had
gone to Ballia separately and met the deceased at that place
at about 1.30 p.m. On that day. It is not a material
discrepancy. It would appear from the fact that on the
letter (Ex.XII) an endorsement had been made by the deceased
to the effect that on 24.9.1974 he had given Rs. 10 to PW 1
for bringing witnesses that PW 1 who was his pairokar might
have gone to Ballia with or without witnesses on 24.9.1974.
It he had not gone to Ballia on that day and had not
accompanied the deceased from Ballia when he left that place
for Mangalpura it is not probable that PW 1 would have been
seen by PW 6 soon after the occurrence or he could have got
the first information report scribed by PW 16 at 9 p.m. On
24.9.1974 itself and handed it over at the police station at
11.30 p.m. on the same day and accompanied PW 15 from
554
the police station to the scene of occurrence at 1.30 a.m.
On 25.9.1974. Therefore, we accept the evidence of PW 1 that
he had gone to Ballia on 24.9.1974 and had left that place
for Mangalpura by a bus along with the deceased and was
present at the time of occurrence and had witnessed the
same. The learned Judges of the High Court had not rejected
the evidence of PW 2 that on 24.9.1974 he had been to Ballia
to meet his ailing relation Shamshuddin Sain at Baheri in
Ballia and was in his house upto 4 or 4.30 p.m. He has
stated that he thereafter boarded the bus in which the
deceased and PW 1 were seated for proceeding to his village
for which he had to get down from the bus and cross a river.
They have rejected the evidence of PW 2 that he was present
along with the deceased at the time of the occurrence and
had seen the occurrence merely because after one crosses the
’dah’ (river) there are two routes to proceed to Shankerpura
one of them going from the ghat towards Shankerpura and the
second towards Mangalpura on the west and then north to
reach Shankerpura, and the learned Judges thought that it is
improbable that PW 2 would have taken the route which is
longer by 1 or 1-l/2 miles instead of the shorter route
proceedings from the ghat. The learned Judges have failed to
give the importance which it deserves to the evidence of PW
2 that much jungle falls in the first route and therefore
people go by that route only during day time and the second
route is plain and therefore they go through that route
during night. They have also failed to take note of the fact
that it was night time and PW 2 would have had the company
of the deceased and PWs. 1 and 3, if he went by the longer
route and would have had to go all alone if he went by the
shorter route running through the ghat. The learned Judges
have rejected the evidence of PW 3 who is a trader in
bullocks merely because he has stated in his evidence that
on 24.9.1974 he went to Ballia for purchasing a weak bullock
whereas he had purchased a stronger bullock for Rs. 1200
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from near about his village a few days later. They have
observed that it is improbable that PW 3 would have gone to
Ballia on 24.9.1974 for purchasing a weak bullock when
strong bullocks were available in neighbourhood itself. PW 3
who trades in bullocks might purchase weak as well as strong
bullocks depending upon the need as rightly submitted by Mr.
Dalveer Bhandari. The fact that PW 3 had gone to Ballia for
purchasing a weak bullock is not a sufficient reason for
disbelieving his evidence that he had gone to Ballia on
24.9.1974 for purchasing a bullock and that he travelled by
the bus in which the deceased and PWs. 1 and 2 were
travelling on their return from Ballia on that day. As
stated earlier the name of not only PW 2 but those of PWs.1
and 3 as eye-witnesses are mentioned
555
in the first information report which has been found to have
been recorded at 9 p.m. itself at the spot and to have been
handed over at Bansidh police station at 11.30 p.m. On the
same day. PWs 1 to 3 have all been examined by PW 15 at
Mangalpura on 25.9.1974 itself. It is not probable that they
would have been easily and readily available for examination
on 25.9.1974 itself if they had not been present at the time
of the occurrence and had not witnessed the occurrence. PW 1
alone belongs to Mangalpura while PWs 2 and 3 belong to
different villages as already mentioned. We, therefore,
accept the evidence of PWs 2 and 3 as well regarding their
presence at the time of the occurrence and witnessing the
scene. PWs. 2 and 3 are independent witnesses, and PW 1 is a
respectable witness as he is a member of the Gram Sabha and
President of the Co-operative Society though admittedly he
was the pairokar of the deceased in the case for which he
had gone to Ballia on 24.9.1974. The name of PW 1 not
finding a place in the order sheet is not a sure basis for
holding that he could not have gone to Ballia on 24.9.1974.
PWs. 1 to 3 have deposed about the occurrence as mentioned
above, and we are of the opinion that there is no convincing
reason for rejecting their evidence as unreliable and that
the learned Judges of the High Court were not justified at
all in rejecting their evidence for the flimsy reasons
mentioned by them. We are also of the opinion that the
learned trial Judge was absolutely justified in acceping the
evidence of the prosecution witnesses and convicting the
respondents for the offence of murder and that the learned
Judges of the High Court had not justification whatsoever
for reversing that judgment and acquitting the respondents
This is not a case where two views on the evidence available
on record are possible. We, therefore, allow the appeal and
affirm that of the learned trial Judge convicting the
respondents for the offence of murder of Jaleshwar Singh.
But though the case is of gruesome and coldblooded murder
and the learned Sessions Judge was justified in awarding the
sentence of death having regard to the fact that the
occurrence took place over a decade ago, we sentence the
respondents to undergo imprisonment for life. The bail bonds
of the respondents who are on bail are cancelled, and they
shall be taken into- custody forthwith for serving the
remaining part of the sentence.
S.R. Appeal allowed.
556