Full Judgment Text
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PETITIONER:
RAM LAKHAN SINGH AND ORS.
Vs.
RESPONDENT:
THE STATE OF UTTAR PRADESH
DATE OF JUDGMENT06/05/1977
BENCH:
GOSWAMI, P.K.
BENCH:
GOSWAMI, P.K.
GUPTA, A.C.
SHINGAL, P.N.
CITATION:
1977 AIR 1936 1978 SCR (1) 125
1977 SCC (3) 268
ACT:
Indian Penal Code, ss. 396 and 302/149, conviction and death
sentence under-Admitted enmity between accused and family of
deceased-Independent neighbouring witnesses not examined by
prosecution-When crime established but criminals’
participation questionable, conviction not maintainable.
Under Art. 136 when appreciation of the entire evidence is
undertaken.
HEADNOTE:
A dacoity was committed in village Jafrapur at about 9 P.M.
The inmates of the house raised alarm. A large crowd
gathered at the gate and lit a fire to add to the moonlight
to enable recognition of the dacoits who opened fire and
murdered three members of the family. The accused were of
neighbourhood and admittedly inimical to the family of the
deceased but apart from three inmates of the house, an
inimical neighbour and another person, no independent
witness from the crowd was examined by the prosecution. The
accused were tried and convicted by the Sessions Court u/s.
396 and in the alternative under s. 302/149 I.P.C., and
sentenced to death. They were also convicted under sq. 148,
395 and 324/149 I.P.C. and variously sentenced. The High
Court affirmed the conviction and sentence.
On appeal by special leave, this Court agreed that the
crimes were established, but doubted the appellants’
participation in the same. Acquitting them of all the
charges, the Court,
HELD : It is not enough in this case that the inmates were
natural witnesses, and that they could correctly describe
what had taken place inside the house. The real question is
whether the accused have taken part in the crime and their
implication in the case is free from reasonable suspicion.
The appreciation of the evidence against the accused is
replete with infirmities affecting the very quality of
appreciation and are unable to hold that the prosecution has
established the charges against the accused beyond
reasonable doubt. [133 B, 135 A]
That ordinarily this Court does not reappreciate the
evidence in an appeal u/Art. 136 will not stand in the way
of going into the whole matter once again in such an unusual
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case. This Court will not deny protection under Art. 136
when there is a pervading sense of judicial unsafety in
relying upon the evidence for the purpose of conviction.
The Court observed :
The police cannot conscientiously rest on their: oars after
submitting a hasty charge-sheet leaving for good the track
of the real,offenders of the crime.
Dagdu and Ors. etc. v. State of Maharashtra [1977] 3 S.C.R.
636, referred to.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 423 of
1974.
(Appeal by Special Leave from the Judgment and Order dated
1-1-1974 of the Allahabad High Court in Crl. Appeal No.
1086 of 1973 and Referred no. 60 of 1973.)
R. K. Garg, S. C. Agarwal, V. J. Francis, A. P. Gupta and
U. P. Misra, for the,appellants.
D. P. Uniyal and O. P. Rana, for the respondent.
126
The Judgment of the Court was delivered by
GOSWAMI, J.-There are cases where crimes are established but
criminals’ participation is shrouded in suspicion. This is
one such case.
Three murders were committed in the course of a dacoity
during the early part of the night on April 20, 1972, at
about 9.00 P.M. All the inmates of the house under attack
had not then finished their meals. Lights were burning.
The village was awake. Accused are known and of the
neighbourhood combining with four unknown persons. They
came armed with fire-arms. The fire was opened and two men
and one woman fell to the fatal bullets.
Shrieks and shouts came from the house as well as from the
house-top where insiders took position, torchlight with one
of them, shouting frantically for help. A large number of
men gathered at the gate, some of them even while dacoity
was going on inside. A fire was lit at the gate to add to
the moonlight to enable recognition of the dacoits.
What does it all lead to? Only three inmates, PWs 1 to 3,
an inimical neighbour (PW 4) and a witness (PW 5), out of
the hundred who gathered and who had not even been examined
by the police during the investigation, are before us to
testify to the guilt of the four assailants awaiting their
death sentence under section 396 IPC or 302/149 IPC.
A perusal of the High Court judgment shows that it was more
confined to the proof of the crime than to a close scrutiny
about the complicity of the accused.
The High Court in agreement with the Sessions Judge found
that the witnesses were truthful since their evidence was
corroborated by, medical evidence, the tattooing and
scorching signs which are inevitable in any gunshot injury.
Who doubts the dacoity and the accompanying murders ? But
did the neighbouring enemies take part in the dacoity ? That
is the principal question which has to lie established
beyond reasonable doubt on the evidence of the five-
witnesses.
Accused Ram Lakhan Singh, Lalloo Singh, Shitla Baksh Singh
and Rameshwar Singh were convicted by the Sessions Judge
under section 396 IPC and in the alternative under section
302/149 IPC and sentenced to death. They were also
convicted under sections 148, 395 and 324/149 IPC and
variously sentenced. The High Court affirmed the conviction
and sentence. Hence this appeal by special leave.
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The occurrence took place at village Jafrapur about twelve
miles from Jagatpur Police Station in the district of Rae
Bareilly.
At village Jafrapur, there was a very well-to-do joint
family of three generations living together in a large two-
storied house. The family owns substantial cultivation,
besides flour, saw and oil mills.
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The patriarch of the family is deceased Shiv Bahadur Singh
(55) who was also Pradhan of the village. The other members
of the family, all living together, are his son, Udairaj
Singh and his wife deceased Shmt. Lakhpat (36) and their
sons, Ram Naresh Singh (22) (PW 1), deceased Ram Jas Singh
(20) and Ram Kumar Singh (5) and daughters, Ram Kumari (14)
(PW 3) and Kumari Nirmala (8). Shmt. Rajwati (17) (PW 2),
wife of Ram Naresh Singh and Shmt. Saroj, wife of deceased
Ram Jas Singh, were also living there.
The house of the accused Jai Singh, Lalloo Singh and
Rameshwar Singh is close to the residence of Shiv Bahadur
Singh. In the same village, Jafrapur, there was another
family of accused Ram Lakhan Singh and his daughter was
married to accused Shitla Baksh Singh of Manehru at a
distance of about one mile from Jafrapur. It appears the
case of accused Jai Singh was separated and he is not before
us.
The two families of the accused were at daggers drawn with
the family of the deceased. For years there have been civil
and criminal litigation between them and some were pending
even on the date of occurrence. Proceedings were instituted
by the police against both the parties under section 107 Cr.
P. C. These wire also pending on the date of occurrence. In
connection with the case under section 107 Cr. P. C. guns
of Udairaj Singh and Ram Naresh Singh (PW 1) were deposited
with the authorities about a year before the occurrence. In
December 1971 Udairaj Singh had complained to the District
Magistrate, Rae Bareilly, against the accused and other
members of their family stating that there was danger to
their life and property. On the other hand about five or
six months before the occurrence accused Shitla Baksh Singh
also lodged a report against deceased Shiv Bahadur Singh,
Udairaj Singh and PW Ram Naresh Singh implicating them in a
dacoity and on the date of the occurrence they were on bail
in that case. Shiv Bahadur Singh bad a flour mill in
village Manehru. Jaddu Singh, uncle of accused Shitla Baksh
Singh installed a flour mill in front of the said flour
mill. Business rivalry ensued. One Mohan Mistry working in
Shiv Bahadur Singh’s flour mill was said to be assaulted by
accused Ram Lakhan Singh and others as Mohan refused to
leave Shiv Bahadur Singh’s service in compliance with their
wish. This led to a case under section 308 IPC against
accused Ram Lakhan Singh and three others and it was fixed
for trial in the Court of Sessions at Rae Bareilly on April
21, 1972, the day following the night of occurrence. In
fact Ram Lakhan Singh was arrested on that day at Rae
Bareilly where he went for the case.
In the backdrop of the aforesaid fierce hostility and
business rivalry between the parties a dacoity with murder
was committed in the house of Shiv Bahadur Singh on the
night of April 20, 1972, at about 9.00 P.M.
The first information report was lodged by Ram Naresh Singh
(PW 1) at midnight at 12.10 A.M. at Jagatpur Police Station.
The FIR contains the names of five persons, namely, accused
Rameshwar
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Singh (65), Lalloo Singh (35), Jai Singh, Ram Lakhan Singh
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(45) and Shitla Baksh Singh (25). Rameshwar Singh, Lalloo
Singh and Jai Singh ate brothers. Accused Ram Lakhan, Singh
is the father-in-law of accused Shitla’Baksh Singh. The FIR
also mentioned that there were four unknown persons with
them. The FIR gave a list of 18 items of property including
cash Rs. 13,500/- which were taken away by the dacoits after
breaking open almirahs and boxes. The FIR gave a detailed
description of the entire incident from entrance of the
intruders upto their bolting away after having shot three
persons dead , namely, Shiv Bahadur Singh, Ram Jas Singh and
Shmt. Lakhpat. The case was registered under section 396
IPC and the police arrived at the place of occurrence at
about 4.00 A.M.
According to the prosecution, along with the four accused
who had pistols with them, there were Jai Singh armed with a
double barrel gun and four other unknown men dressed in
khaki uniforms with bandoliers. At the time of occurrence,
Shiv Bahadur Singh, Ram Jas Singh and Shmt. Lakhpat were
taking their meals in the court-yard. These nine persons
all of a sudden entered their house. Jai Singh and Lalloo
Singh fired shots at Shiv Bahadur Singh and he fell down
dead. Ram Jas Singh tried to escape. Accused Shitla Baksh
Singh and an unknown person caught him and brought him to
the court-yard. Then Shitla Baksh Singh and the unknown
person fired shots at him. He also immediately died. Shmt.
Lakhpat, Shmt. Rajwati, Shmt. Saroj and Shmt. Ram Kumari
ran into a room and chained the door from inside. The
assailants broke open the door and accused Jai Singh and Ram
Lakhan Singh entered the room and brought out Shmt.
Lakhpat. The other women also came out of the room. Then
Jai Singh and Ram Lakhan Singh shot Shmt. Lakhpat dead. At
that time Shmt. Ram Kumari also received injury from a
pellet but was not directly attacked. The unknown persons
then broke open two almirahs in the north verandha and took
out a sum of Rs. 13,500/-. They also entered a room and
broke open boxes and took out ornaments. The dacoity
continued for 20/25 minutes after which all the assailants
ran away firing shots in the air.
The prosecution relied upon the evidence of Ram Naresh Singh
(PW 1), Rajwati (PW 2) Ram Kumari (PW 3), Rahim Bux (PW 4)
and Ram Kishun (PW 5). Both the Sessions Judge and the High
Court accepted their testimony.
It is submitted by Mr. Uniyal on behalf of the State that
there is no reason why we should reappraise the evidence and
interfere with the conclusion of guilt affirmed by the High
Court. Mr. Garg, on the other hand, submits that
notwithstanding the evidence of these five witnesses there
is such an inherent improbability of the accused committing,
the offence that the Sessions Judge and the High Court have
arrived at a completely erroneous conclusion which we should
not accept in the interest of Justice. Counsel further
submits that it is not merely a question of appreciation of
evidence as such but appreciation of the realities of the
situation whether under the entire circumstances which have
been brought out in the evidence the accused could have
129
taken part in the crime in the way alleged without even
taking precaution to conceal their identity. Mr. Garg
submits that the first information report could not have
been lodged at the hour described in the detailed manner in
which it has been written. He submits that it was more
likely that Ram Naresh Singh did not know any names of the
accused and it was only after the police had arrived that
the accused were roped in with the four unknown men to wreak
vengeance.
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Mr. Uniyal submits that there is party-faction in the
village, one party supported by the deceased’s. family and
the other by that of the accused. There was enmity between
the parties and the authorities had been informed by the
deceased about threat to life and property. He further
submits that the object of the attack was to murder and wipe
out the family and not dacoity which was incidental for the
purpose-of enlisting the aid of four unknown men in the
crime. According to him if the object was dacoity there
would have been some evidence as to snatching of ornaments
from the person of the ladies as also an attempt at getting
hold of the keys for the purpose of opening the boxes and
almirahs to facilitate the robbery. Further there was
immediate opening of fire to kill the inmates. Mr. Uniyal
submits that the witnesses are natural witnesses and their
testimony should not be rejected when two courts have
accepted the same.
We have given anxious consideration to the submissions of
Mr. Uniyal but for the reasons which will presently follow
it is not possible to hold that the charges are established
against the accused beyond reasonable doubt.
The Sessions Judge has more or less prefaced his judgment by
observing that Shitla Baksh Singh’s "family is of law
breakers". He further observed as follows :-
"I may also mention that Shiv Bahadur Singh
and members of his family always took recourse
to law and the accused persons acted as law
breakers. It is true that cases against
Rameshwar Singh were of civil nature and that
there was no criminal case against him. But
in these days offenders bear grudge against
and become hostile to the person who either
takes civil action or criminal action against
them. I may further mention that Shitla Baksh
Singh ventured to implicate respectable, law
abiding and very well to do persons Shiv
Bahadur Singh, his son and grandson in a
dacoity case. This clearly speaks of his
malice towards them.
The position that I conclude is that Shiv
Bahadur Singh and members of his family were
law abiding persons and always took recourse
to law, whereas the accused persons are law
breakers and they were positively in
mical/hostile to Shiv Bahadur Singh and his
family".
x x x x
Baksh Singh’s) father-in-law, Ram Lakhan Singh
accused was convicted under section 308 IPC
case brought by Mohan servant of the
complainant. . . . .
130
From the above we are of opinion bat the Sessions Judge
adopted a highly incorrect approach in trying a criminal
case
While dealing with the evidence, of Rahim Bux (PW 4) the
Sessions Judge referred to the fact of his evidence being
accepted in another case under section 308 IPC against
accused Ram Lakhan Singh and he took note that Ram Lakhan
Singh was convicted in that case. From this he observed :
"It means that the testimony of Rahim was
believed. The defence has not shown that
evidence of Rahim was found false in that
case. In case Rahim gave correct evidence ill
the case of Mohan then in my opinion he can
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also be believed in the present case because
he is a natural witness of the occurrence".
This is again a wrong approach.
Although the judgment of the Sessions Judge is otherwise an
exhaustive judgment it cannot be said from the instances
which we have set out above that his appreciation is free
from legal infirmity of some kind of prejudice against the
accused who are described as "law breakers". In our system
of law an accused starts with a presumption of innocence.
His bad character is not relevant unless he gives evidence
of good character in which case by rebuttal, evidence of bad
character may be adduced (Section 54 of the Evidence Act).
With regard to accused Rameshwar Singh the Sessions Judge
observed that "the presence of Rameshwar Singh was quite
necessary with the assailants because he knew very well the
circuitous route of going inside the house of the victims".
This is again a very faulty appreciation of the case against
accused Rameshwar Singh who is 65 years old and who need not
himself have taken the trouble of accompanying the
assailants when his younger brothers were there.
The High Court also did not closely examine the case which
contain several extra-ordinary features and above
infirmities in the judgment of the trial court. To say the
least, that the accused were none but known persons of the
neighbourhood highly inimically disposed towards the
deceased and the crime was committed when the whole village
was awake, should call for an onerous test regarding credi-
bility. In disposing of the argument on the score of
improbability the High Court observed as follows :-
"There can be more than one reason for the
appellants themselves having gone to commit
the offences charged against them. It is
quite likely that the unknown persons picked
up by the appellants were not prepared to go
for the perpetration of the crime unless the
appellants also accompanied them. It is also
likely that the appellants were swayed by the
feelings of old time chivalry and wanted not
only their adversaries to be killed but also
wanted to demonstrate to them that they met
their doom for having the audacity to incur
their displeasure’.
131
Dealing with the arguments regarding absence of independent
evidence the High Court observed :
"In the particular circumstances of this case,
therefore, the mere fact that no independent
person has come forward to support the
prosecution version of the occurrence can be
no ground for discarding the evidence of the
witnesses already examined, particularly that
of Ram Naresh Singh, Smt. Rajwati and Ram
Kumari P.Ws’.
With regard to the evidence of Ram Kishun (PW 5 who a not
even been examined by the investigating officer, both courts
relied on his evidence and the High Court observed that "the
evidence of Ram Kishun can also therefore be pressed into
use in order to lend assurance to the evidence of the other
witnesses". The above observation of the High Court would
go to show that it was trying to look for further assurance
from some independent source to corroborate the testimony of
the eye witnesses who are all inimically disposed towards
the accused. We also do not find in either of the judgments
any reference to the prosecution not examining all the eye
witnesses mentioned in the FIR.
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Thus when we find that the appreciation of the evidence
against the accused is replete with infirmities pointed out
above affecting the very quality of appreciation, this Court
will have to undertake for itself, in the interest of
justice, a thorough examination of the evidence and the
entire circumstances to satisfy itself about the guilt of
the accused who have been awarded the extreme penalty under
the law. That ordinarily this Court does not reappreciate
the evidence in an appeal by special leave under Article 136
of the Constitution will not stand in the way of our going
into the whole matter once again in such an unusual case.
This Court will not deny protection under Article 136 of the
Constitution when there is a pervading sense of judicial un-
safety in relying upon the evidence for the purpose of
conviction.
The Sessions Judge wrongly accepted the prosecution case
that "the assailants had come to destroy the entire family"
and that "in the present case the main intention of the
known assailants was to murder Shiv Bahadur Singh and other
members of his family’. It is difficult to appreciate how
this alone can be the object when we find that Udairaj Singh
and Ram Naresh Singh who were all along shouting from the
roof and were focussing a torch upon the intruders, who even
fired towards them, were spared. If the Sessions Judge is
right about the object of the attack, it will only be
consistent with the absence of Udairaj Singh and Ram Naresh
Singh in which case the evidence of Ram Naresh Singh will be
open to grave suspicion. Even Udairaj Singh has not been
examined by the prosecution as a witness although the
Sessions Judge has referred in his judgment "that Udairaj
Singh told them (people who gathered) that Rameshwar Singh
and others had killed his father and son. . . . . . ". In
the absence of Udairaj Singh this statement is of, course
inadmissible, but this is pointed out only to show that the
culprits named, at that stage, were "Rameshwar Singh and
others" and not all the accused and that withholding of his
evidence was deliberate. If the killing of the persons is
the main intention, it
132
is difficult to appreciate why it was necessary for the
accused Shitla Baksh Singh and another unknown person to
have caught Ram Jas Singh while he was running away and
brought him back to the courtyard for the purpose of firing
at him in order to kill him. He could have been killed
while he was running away. The reason why the witnesses
have stated that Ram Jas Singh was brought to the court-yard
was perhaps to enable Ram Naresh Singh and others to see the
killing. The courts have not taken note of this at all.
The most unusual feature in the case is that in spite of the
fact that people from the neighbourhood gathered at the gate
of the house and were said to be watching when the dacoity
was being committed inside and nine persons from among them
were named as witnesses in the FIR only Rahim Bux (PW 4) who
was admittedly inimical towards the accused was examined to
impeicate the accused.
Another unusual feature is that Ram Naresh Singh, who went
to, the police station about half an hour after commission
of the dacoity leaving three dead bodies in the house would
have himself the equanimity and patience to detail an essay
of information at the police station. It would have been
more natural for him just to tell the police that murders
and dacoity were committed by the persons whom he could name
and the names of the witnesses who could recognise the
dacoits. It is also surprising that he could give a long
list of articles with weight and value when lodging the
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first information report. The constable who wrote the first
information report containing five pages appended a note at
the foot of the FIR certifying that "the statement of the
complainant has been taken down in the check report word for
word". Even in this unusually long first information report
accused Rameshwar Singh was not ascribed any part although
during evidence it was stated that he was the first to have
"challenged" and threatened the inmates after which other
accused opened fire. There is also no mention in this long
report about Ram Kumari having received any injury. One
should have thought it rather unusual for the police to
delay for a long time in the Thana after they have been
informed of such a dastardly crime committed twelve miles
away and not immediately to go to the place of occurrence
and take immediate steps for apprehending the near by
culprits. The police could have spared the trouble of
cataloguing in the FIR the instances of enmity and
description of the pending courts cases while it might have
been enough to mention that the family of Shiv Bahadur Singh
had enmity with the accused persons.
It is because of these unusual features that the defence
strongly suggested that there was some manipulation in
lodging the first information report in this case and that
therefore mention of the names of the accused therein should
not be treated with the same importance as is done in normal
cases.
This is not a case in which a dacoity was committed at dead
of night when inmates were asleep and they could recognise
the dacoits while committing the dacoity and there was no
other independent person nearby who could have seen them.
There being admittedly
133
enmity between the accused and the ’deceased’s family it was
the bounden of the prosecution to examine the neighbouring
witnesses who were there and named in the- first information
report to corroborate the testimony of the inmates. That
out of the neighbouring witnesses named in the first
information report only Rahim Bux (PW 4) who was inimically
disposed towards the accused was selected throws a great
deal of doubt in the prosecution case against the accused.
It is not enough in this case that the inmates were natural
witnesses, as the courts emphasised, and that they could
correctly describe what had taken place inside the house.
The real question is whether the accused have taken part in
the crime and their implication in the case is free from
reasonable suspicion.
Our attention is drawn by Mr. Uniyal to an application by
the Public Prosecutor filed before the court that the
statements of the other witnesses were not necessary. There
is nothing to show that they were either unwilling to depose
in favour of the prosecution or were won over by the
accused. When the witnesses named in the first information
report were not considered necessary by the Public
Prosecutor, it is curious to find that Ram Kshun who was not
examined by the police nor was he cited in the chargesheet
was found necessary and was examined as PW 5. According to
the evidence the two servants of Udairaj Singh namely,
Pancham and Ghurai, were at the gate when the robbers
entered the house and they went to the village to call
people. They also returned later with the people. Even
then these two witnesses were not examined as witnesses. As
already pointed out even Udairaj Singh who flashed his torch
and must have seen the intruders was withheld. It is rather
intriguing that Rahim Bux (PW 4) stated in his evidence that
"Udairaj told us that Rameshwar and others had fired at his
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father and son". This is repeated by Ram Kishun (PW 5) when
he stated "Udairaj Singh told us that Rameshwar Singh and
others had entered his house". One is left to guess whether
it is because of this reason that Udairaj Singh has not been
examined as a witness and the statements attributed to him
have also become inadmissible in evidence It is clear that
the prosecution does not require that part of the evidence
and left it to be finally inadmissible. There is no reason
why Udairaj Singh would not have been able to name, all the
accused persons to PWs 4 and 5. His non-examination is
suspect.
Again if the object of the accused was to murder and wipe
out the entire family, as has been found, by the Sessions
Judge, there is no reason why in spite of their noticing
Udairaj Singh and Ram Naresh Singh on the roof they would
have left them without a scratch in spite of the fact that
Ram Naresh Singh stated that the accused had tired towards
them.
Some importance is given by the prosecution to the evidence
that the accused tried to search for the youngest boy in the
family, namely, Ram Kumar Singh (5), who was sleeping in the
courtyard. This fact is even mentioned in the first
information report. We are, however, unable to give any
unusual importance to this which may as well perhaps be a
clever verisimilitude-
134
When the police found that along with four unknown persons
certain enemies of the deceased were named as culprits it
was their duty to keep that fact in mind while investigating
into the crime. On the other hand we find that there was no
investigation worth the name in this case even though the
Superintendent of Police arrived at the place of occurrence
the following morning. Even a police constable from Rae
Bareilly, the District Headquarters, arrived at the place of
occurrence at 6.00 A.M., about two hours after the arrival
of the Jagatpur police. It is not known how and what
information was received Rae Bareilly kotwali. It is,
however, admitted that Sub-Inspectors from Rae Bareilly also
came with the S.P. at 8.00 A.M., the following morning to
the place of occurrence. Rae Bareilly is about ten miles
from the village whereas Jagatpur is twelve miles. It is
equally intriguing that in such a case the police submitted
the charge-sheet on May 11, 1972, after about three weeks of
the occurrence. The police, therefore, did not at all
consider it necessary to investigate the case, carefully to
rule out the possibility of the enemies of the deceased
being implicated due only to grave suspicion. It is indeed
surprising that the police officer did not think it his duty
to immediately arrest the accused living next door if he had
no doubt about their complicity disclosed in the first
information report. The Police Officer (PW 7) stated in his
evidence that he had asked one of the Sub-Inspectors to
arrest the accused but did not tell if that officer tried to
find them out in their house. Even that officer has not
been examined as a witness in this case. This is an unusual
and unnatural attitude on the part of the police officer in
such a serious case if the names of the accused immediately
available bad been truly disclosed. Again, when the police
officer was asked as to bow the police from Rae Bareilly
came there he was unable to give any reason and stated that
he could not say "how the information in respect of this
occurrence had reached the kotwali". We should have
expected the police officer at least to have asked the Sub-
Inspectors of kotwali as to how they came to know of the
occurrence in which case there would have been the
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possibility of some information at Rae Bareilly which might
even be earlier than the actual first information report
received at the Jagatpur Police Station. This fact also
reduces the weight that may be attached to the first
information report in this case at Jagatpur.
After all this discussion when we come to the judgment of
the High ,Court we find that it was of the opinion that "the
evidence of Ram Kishun can also therefore be pressed into
use in order to lend assurance to the evidence of the other
witnesses".
It is true that no enmity or grudge is suggested against
this witness, but we find that this witness was not even
examined by the police nor was he cited in the chargesheet.
In a grave charge like the present, it will not be proper to
place reliance on a witness who never figured during the
investigation and was not. named in the chargesheet. The
accused who are entitled to know his earlier version to the
police are naturally deprived of an opportunity of effective
cross-examination and it will be difficult to give any
credence to a statement which was given for the first time
in court after about a year of the occurrence. We cannot,
therefore, agree that the High Court was right in accenting
the
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evidence of this witness as lending assurance to the
testimony of other witnesses on the basis of which alone
perhaps, the High Court felt unsafe to convict the accused.
After having examined the entire evidence and circumstances
in a case of this description, we are unable to affirm the
conviction on the oral testimony of the aforesaid five
witnesses and to hold that the prosecution has established
the charges against the accused beyond reasonable doubt.
We, therefore, give the four accused the benefit of reason-
able doubt and acquit them of all the charges. The judgment
and order of the High Court sentencing the accused to death
and other sentences are set aside and the accused shall be
released from detention forthwith.
We may observe that this is a case where the police cannot
conscientiously rest on their oars after submitting a hasty
chargesheet leaving for good the track of the real offenders
of the crime. This is equally the problem for the general
police administration throughout the country to which we
direct attention in a recent judgment in Dagdu and Others,
etc. v. State of Maharashtra(1).
M.R. Appeal allowed.
(1) [1977] 3 S.C.R. 636
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