Full Judgment Text
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PETITIONER:
STATE OF U. P.
Vs.
RESPONDENT:
HARI PRASAD & OTHERS
DATE OF JUDGMENT06/12/1973
BENCH:
CHANDRACHUD, Y.V.
BENCH:
CHANDRACHUD, Y.V.
BEG, M. HAMEEDULLAH
CITATION:
1974 AIR 1740 1974 SCR (2) 588
1974 SCC (3) 673
CITATOR INFO :
R 1976 SC 980 (9)
D 1987 SC1222 (13)
D 1992 SC 214 (10)
ACT:
Penal Code-murder-Motive for murder.
HEADNOTE:
There ware disputes over land between the complainant and
the party of the amused, all of whom were connected inter
se. The deceased was a traditional priest, both of the
complainant as well as of the accused. All the accused were
on friendly terms with the deceased. On the day of the
occurrence the deceased priest and his mother were staying
with the complainant as his guests The complainant and sofa,
members of his family were sleeping on one side of the
terrace of his house, the priest and few others were
sleeping on another side, while the complainant’s servant
and some others were sleeping yet on another portion of the
terrace of the am, house. While one group of five accused
committed the murder of the servant of the complainant, the
second group of five murdered the priest and caused injury
to his mother. The witnesses claimed that they identified
the accused in the light of the lantern which was alleged to
be hanging by a pole four or five feet high.
The sessions Judge held that the 10 accused formed unlawful
assembly for the purposes of committing the murder of the
complainant but by mistake committed the murder of the
priest and the servant. Five of the accused belonging to
the village were sentenced to death while the others were
sentenced to imprisonment for life. The High Court
acquitted all the accused.
Dismissing the appeal of the State to this Court
HELD : (1) The High Court was right in the view that the
occurrence took place under darkness and that in the absence
of any light none of the prosecution witnesses could have
identified the culprits and that the existence of the
lantern was open to grave doubt. If the pattern was burning
just near the place where the priest was sleeping it is
difficult to hold that the murder was committed through an
error mistaking him to be the complainant. The accused had
no motive to assault the priest and case injury to his
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mother which tended to show that they had not participated
in his murder. [593F; 592B and D]
(2) If the various eye witnesses were able to identify the
accused in the light of the lantern the accused could have
been able to identify the victim. [592E]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.215 of
1970.
Appeal by special leave from the judgment and order dated
the 12th May, 1970 of the Allahabad High Court Lucknow Bench
at Lucknow in Criminal Appeal Nos. 35 and 36 of 1970.
O. P. Rana, for the appellant.
A. K. Gupta, for the respondents.
The Judgment of the Court was delivered by
CHANDRACHUD, J.-As criminal cases go, this is an interesting
case in the sense that it offers for solution a riddle of
many facets. And since many answers reasonably come to
mind, the accused would appear to be entitled to the benefit
of that perplexity. The monsoon night of August 27, 1968
was dark, so dark indeed that the Sessions Court which
sentenced five of the accused to death and the remaining
five to
589
life imprisonment made a finding that "it is an admitted
case that without light it was not possible to identify the
assailants". Witnesses usually place torches in the hands
of dacoits and though the motive of the crime in this case
was not burglary, a faint attempt. was made by some of the
witnesses to show that, on occasions, a few of the accused
had flashed their torches at strategic stages. But that
part of the case is clearly unworthy of belief. And so, the
main.question in this appeal is whether a lantern was
burning at the scene of offence, lantern hanging by a pole
four or five feet high. Witnesses claim that they
identified the accused in the light of that lantern.
The case is riddled with these mysteries Why did the accused
murder Vishwanath Panda, their traditional family priest
with whom they were on friendly terms and who, with his
mother Birja, had come on the 27th evening to stay with the
complainant Kanahaiya Bux Singh as a guest? The answer made
by the prosecution is that it is a sorry case of mistaken
identity; the accused wanted to murder the complainant but
mistook Vishwanath for him, both being of the same colour,
size and age, Why did the accused assault Birja whose
husband first, and after his death her son was their priest?
The explanation offered is that the accused wanted to
terrorise her lest she raised an alarm. If the common
intention of the accused was to commit the murder of
Kanahaiya Bux Singh why did they allow him to escape under
their very noses ? They were ten strong. It is suggested
that on seeing the assault on Vishwanath, Kanahaiya Bux
Singh escaped into the nearby Chhappar, along with his
brother kishan Pal Singh and his sister Chandrawali. They
covered themselves with old clothes lying in the Chhappar,
but kept an opening for the eyes so as to be able to see the
incident from the beginning to the fall of the curtain. Why
was the complainant’s servant Ram Gopal murdered? No ex-
planation is forthcoming. And if the complainant and his
family were the real target, how could the complainant’s
brother Bhagwan Bux Singh, his mother Ram Dulari and her
sister Raja Munni escape with no more than simple,
superficial injuries? This is not to say that even if the
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witnesses are truthful, the prosecution must fail for the
reason that the motive of the crime is difficult to find.
For the matter of that, it is never incumbent on the
prosecution to prove the motive for the crime. And often
times, a motive is indicated to heighten the probability
that the offence was committed by the person who was
impelled by that motive. But, if the crime is alleged to
have been committed for a particular motive, it is relevant
to inquire whether the pattern of the crime fits in with the
alleged motive. if the motive, here, was directed against
Kanahaiya Bux Singh and his family, how strange it is that
Kanahaiya Bux Singh his sister Chandrawali and his brother
Kishan Pal Singh should have been allowed to, escape
unscathed when they were within the easy reach of the
accused; and how strange again that Bhagwan Bux, Ram Dulari
and Raja Munni should escape as if through a passing
household scramble. The accused, according to the
prosecution, pooled their strength to murder a foe-Kanahaiya
Bux Singh-but murdered through mistake a ’friend Vishwanath
Panda-and for no apparent reason, an innocent servant. Ram
Gopal.
12--602 CI/74
590
The incident leading to this appeal took place at about
11.30 p. m. on August, 27, 1968 in the village of Kunwarpur,
district Lucknow. kunwarpur is a tiny village consisting of
but ten houses. The complainant, Thakur Kanahaiya Bux
Singh, lived with his family in one house, while three
houses were in the occupation of five out of the ten
accused: Badlu, Manohar, Chhotey Lal, Jagannath and
Dhaniram. The remaining five belonged to neighbouring
villages.
There were disputes between the complainant and one Bindra
Ahir over a plot of land, which led to proceedings under
sections 107 and 117, Criminal Procedure Code. One of the
accused, Manohar, is Bindra’s son, two of them are Bindra’s
brothers, two are his cousins while three are his brothers-
in law. In one way or another, all the accused are.
connected inter se.
The complainant lived in a spacious house and had a fairly
large family. On the 27th evening, Vishwanath Panda and his
mother Birja arrived at the complainant’s house on one of
their routine visits to the ’jijmans’. Vishwanath’s father
was a family priest of the complainant and after his death,
Vishwanath took up that mantle. Birja used to accompany
Vishwanath on his visits to the patrons. It is of
significant relevance that Vishwanath’s father and
thereafter lie ’himself were also family priests of the
accused belonging to Kunwarpur.
The terrace over the complainant’s house is divided into
separate portions which are described in these proceedings
as so many roofs. On the night of the 27th the complainant,
his brother Kishan Pal Singh and his sister Chandrawali were
sleeping on the roof situated in the north-western corner of
the house. Vishwanath Panda, his mother Birja Rama Dualri
the mother of the complainant, and her sister Raja Munni
were sleeping on the roof situated in the north-east corner,
on the south-west were sleeping Bhagwan Bux, a twelve-year
old brother of the complainant and Ram Gopal. a servant.
The case of the prosecution is that at about 11.30 p, m. on
August 27, the ten accused climbed to the roof of the
complainant’s house by placing a ladder on the south-eastern
side. The accused divided themselves into two groups: five
of them, namely Badlu, Manohar, Chhotey Lal, putti Lal and
Hira Lal went to the place where Vishwanath Panda, Birja,
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Ram Dulari and Raja Munni were sleeping. This group
,committed the murder of Vishwanath and caused injuries to
the three ladies. The other group comprising Dhani Ram,
Jagannath, Daya Shanker, Mohan Lal and Hari Prasad went to
the place where Ram Gopal and Bhagwan Bux Singh were
sleeping. This group committed the murder of Ram Gopal and
caused injuries to Bhagwan Bux Singh’, Kanahaiya Bux Singh,
his brother Kishan Pal Singh and his sister Chandrawali who
were sleeping on the north-western part of the roof escaped
stealthily to a Chappar and concealed themselves behind the
old clothes lying therein. It is alleged that a lantern was
burning near the place where Vishwanath was sleeping and the
accused were identified in the light of that lantern by
Kahahaiya Bux
591
Singh, Chandrawali, Kishan Pal Singh, Birja, Raja Munni,
Bhagwan Bux Singh and Ram Dulari. These, respectively, are
prosecution witnesses 1 to 5, 7 and 8.
Vishwanath received two formidable incised injuries on his
head and a long linear cut on his chest. On the person of
Ram Gopal were found 17 incised injuries, a linear cut and a
contusion. Birja received 3 incised injuries , a lacerated
wound and an abrasion. Almost all of these were skin-deep.
Ram Dulari had three incised injuries on her person, one
being muscle-deep and the other bone-deep. Raja Munni
received a muscle-deep incised injury behind her right ear.
Bhagwan Bux Singh had one incised injury on his person.
The complainant lodged the First Information Report at the
Itaunja police station through the son of a Chaukidar at
about 9.15 a.m. on the 28th. The names of all the accused
are mentioned therein together with the weapons wielded by
them on the previous night.
The learned Sessions Judge accepted the evidence of the eye-
witnesses and held that all of the ten accused had formed an
unlawful assembly with the common object of committing the
murder of Kanahaiya Bux Singh and of causing hurt to the
other members of his family, that they committed the murder
of Vishwanath Panda, mistaking him for Kanahaiya Bux Singh
and that they also committed the murder of Ram Gopal. The
five accused belonging to Kunwarpur were sentenced by the
learned Judge to death while the other five were sentenced
to imprisonment for life. Varying sentences were also
imposed on the accused for the comparatively minor offences.
In appeals Nos. 35 and 36 of 1970 filed by the accused, the
High Court of Allahabad (Lucknow Bench) has set aside the
order of conviction and sentence and has acquitted all the
accused The State of Uttar Pradesh has filed this appeal by
special leave against that judgment. One of the accused,
Putti Lal, died during the pendency of this appeal.
The judgment of the High Court is perhaps open to the charge
that, unconventionally, it has taken into consideration the
broad features of the case without discussing separately the
evidence of each one of the eyewitnesses. The judgment
would have been of greater assistance to us if the High
Court had referred to the main points in the evidence of the
important witnesses, but in view of the rather peculiar
facts of the case we are not prepared to say that the method
adopted by the High Court has caused failure of justice.
The fate of the entire case depends on the question whether
a lantern was burning near the place where Vishwanath Panda
was sleeping. it is in the light of that lantern that the
several witnesses are alleged to have identified the
respondent. Having considered the evidence of the various
witnesses we are of the view that the High Court was right
in coming to the conclusion that the existence of the
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lantern is open to grave doubt.
The respondent had no motive whatsoever for committing the
murder of Vishwanath or for causing injuries to his mother
Birja.
592
Vishwanath’s father, and after his ’death Vishwanath
himself, was the priest of the group of accused who
committed his murder. It is said that Vishwanath was
murdered through an error as the accused who assaulted him
mistook him for the complainant, Kanahaiya Bux Singh. If
the lantern was burning just near the place where Vishwanath
was sleeping, it is difficult to appreciate how such a
mistake could have been committed. It is urged that
Vishwanath and the complainant were of the same age and
complexion and since Vishwanaths’ face was away from the
lantern, the accused must have mistaken him for the
complainant. Assuming for the sake of argument that such a
mistake was initially committed, there is no reason why the
five accused should continue to assault Vishwanath after
they had discovered their mistake. Birja has stated in her
evidence that she woke up immediately after the first blow
was given to Vishwanath and she asked the accused
imploringly as to why they were beating their own Panda.
Birja says that thereafter the five accused not only conti-
nued to assault Vishwanath but they also assaulted her,
knocking out her teeth in the process. This, is our
opinion, clearly shows that Vishwanath was not assaulted
through an error or an oversight. The accused evidently had
no motive to assault him which tends to show that they had
not participated in the murder of Vishwanath.
We also find it difficult to believe that though a lantern
was burning just near the place where Vishwanath was
sleeping, the accused were unable to identify him. They
knew Vishwanath intimately and it is highly unlikely that
they would commit a mistake of such a grave nature. Indeed,
if the various eye-witnesses were able to identify the
accused in the light of the lantern, the accused should have
been able to identify Vishwanath.
The case of the prosecution is that the real target of the
accused was the complainant Kanahaiya Bux Singh. if that be
so it seems to us surprising that though he was sleeping on
one of the roofs, none of the accused should have made any
effort to follow him into Chappar or to trace him in any
other part of the house after Vishwanath and Ram Gopal were
done to death. Kanahaiya Bux Singh his, brother Kishan Pal
Singh and his sister Chandrawali have told a story which
strikes us as highly imaginative. All the three claim that
they walked into the Chappar, covered themselves with old
clothes, kept their eyes uncovered and saw the entire
incident through small slits. If at all the complainant and
the other two persons were sleeping on the roof they must
have run away to a safe distance. But the greater
probability is that this group was sleeping on the ground
floor of the house and not on the roof at all. Kanahaiya
Bux Singh’s wife, his daughter and Chandrawali’s children
were admittedly sleeping on the ground floor. That
eliminates the possibility that the incident was witnessed
by Kanahaiya Bux Singh, Chandrawali and Kishan Pal Singh.
Learned counsel for the State has placed great reliance on
evidence of Vishwanath’s mother Birja. He contends that
Birja is an independent witness, that she has no motive for
implicating the
593
accused falsely and that her evidence in regard to the
identification must be accepted as true. Birja undoubtedly
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is an independent _witness but if there was no lantern on
the roof, she could not have possibly identified the
accused. The judgement of the learned Sessions Judge
contains a statement. that it was an admitted position that
if there was no lantern burning, it was not possible to
identify the assailants. It seems that on the next morning,
the large crowed of neighbours which gathered at the scene
of offence ventured into the usual speculative guesses and
Birja, having lost her son, readily believed that what was
guessed was true. That explains why Birja persuaded
herself to say that Kanahaiya Bux Singh, Chandrawali and
Kishan Pal Singh were sleeping on the roof though, as
indicated above, the greater probability is that they were
sleeping on the ground floor.
It is important in this connection that the First
Information Report contains a statement that Birju Pasi,
Ganeshi Pasi and several others had responded to the alarm
raised by the members of the complainant’s family. In the
Sessions Court the complainant stated that immediately after
the occurrence, Birju and Ganeshi came to his house and that
he had narrated to them what had happened. None of these
persons has been examined by the prosecution and no reason
was shown as to why they were not examined.
Learned counsel for the State argued that it was open to us
to examine the evidence apart from the question whether
Vishwanath was assaulted through mistaken identity. We are
unable to accept this argument. The very foundation of the
prosecution case is that the accused had a motive to commit
the murder of the complainant, that they mistook Vishwanath
for the complainant and that Vishwanath was murdered as a
result of this unfortunate mistake. It is not open to the
prosecution to ask the court to discard the very substratum
of their care and to construct a new theory founded on a
hypothesis presented for the first time before us.
We are therefore in agreement with the view taken by the
High Court that the occurrence took place, under cover of
darkness and that in the absence of any light, none of the
prosecution witnesses could have identified the culprits.
We therefore confirm the order of acquittal under which the
accused have been given the benefit of doubt and dismiss
this appeal. The bail bonds shall be cancelled and if any
of the accused are in jail they shall be set at property.
P.B.R. Appeal dismissed.
594