Full Judgment Text
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CASE NO.:
Appeal (crl.) 530 of 1991
PETITIONER:
STATE OF UTTAR PRADESH
RESPONDENT:
RAM SEWAK AND ORS.
DATE OF JUDGMENT: 18/12/2002
BENCH:
M.B. SHAH & D.M. DHARMADHIKARI
JUDGMENT:
JUDGMENT
2002 Supp(5) SCR 503
The Judgment of the Court was delivered by
DHARMADHIKARI, J. The facts revealed in this case by the evidence produced
for the prosecution should be taken as a reminder to the Legislative Bodies
and Social Reformers that penal laws howsoever deterrent are inadequate to
prevent crimes unless there is change brought about in the way of life,
thinking and outlook of the members of the communities against each other
in village and cities of this country. Such a social change can be realised
not only by making laws but imparting sound moral education and spiritual
upliftment of the people.
This opening comment is prompted by the tragic facts of this case. A young
newly married boy of only twenty two years of age, named, Ram Sudhar Singh
was shot dead. The motive for the crime alleged against the accused person
is that they formed a faction in the village of influential Thakur
community and were insisting that Jograj Singh (examined as a Court
Witness) should give his daughter in marriage to a boy of the choice of the
accused party. Against the wishes of the members of the accused party,
Jograj Singh gave his daughter in marriage to deceased Ram Sudhar Singh.
There were other factional rivalries between the members of the accused and
the complainant party on past criminal incidents as well as election
contest which have been highlighted by the accused in their separate
defence plea recorded at the end of the trial under Section 313 of the Code
of Criminal Procedure.
The Trial Judge, i.e., First Additional Sessions Judge, Shahajhanpur, by
his judgment dated 9-2-1979 and order of sentence dated 14-2-1979 convicted
five accused who are respondents in this appeal before us and sentenced
them to life imprisonment for offence under Section 302 read with Section
148 I.P.C. and imprisonment for two years for offence under Section 148
I.P.C. The other ten co-accused were acquitted.
In the appeal preferred by the five convicted accused, the High Court vide
judgment dated 7-5-1991 acquitted all the accused against which on grant of
leave by this Court appeal has been preferred by the State of Uttar
Pradesh.
On the night between 26th and 27th May, 1978 at the house of Jograj Singh,
in Village Raghunathpur, P.S. Jalalabad, District Sahajhanpur deceased
(being his son-in-law) and Chandrabhan Singh, PW1 (brother of the deceased)
along with other guests were present to participate in Chatti ceremony on
the occasion of 8th day of the birth of a child in that family. After
dinner was over at about eight in the night, Chandrabhan Singh, PW1 and
Jograj Singh were conversing with each other on a platform in front of
their house where a gas lantern was burning. Sometime in the midnight
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Nanheylal, son of Jograj Singh came running and alerted them that accused
persons with fire arms were approaching towards their house to avenge the
past enmity between the two factions. The allegation is that the accused
were armed with fire arms like guns and pistols and Bhalas. They formed an
unlawful assembly. On being alerted by Nanheylal, Chandrabhan Singh (PW1)
and Court Witness Jograj Singh ran towards the house. They saw the accused
taking position in the open space in the ’front of their house. The accused
started firing. About 15 to 20 rounds were fired. The deceased and other
persons standing on the roof of the house raised an alarm. Thereupon,
accused Ram Sewak fired from his gun and the bullet hit the deceased. In
defence, one Pehelwan Prasad of the village also fired from his licensed
gun. Thereafter, the assailants ran away from the scene. The first
information report of the incident (Exhibit KI) was lodged by Chandrabhan
Singh, PW1 in Police Station Jalalabad at six in the morning. The police
station was five miles away from the place of incident. The F.I.R. was
lodged by a written complaint. The deceased who suffered bullet injury was
taken to Primary Health Centre, Jalalabad where Dr. R.C. Asthana, PW3
examined his injuries vide Injury Report (Exhibit k-4) at 8.20 a.m. in the
morning. The same Doctor certified him fit for recording dying declaration.
The dying declaration (Exhibit K 5/2) was recorded at 8.20 a.m. in Primary
Health Centre, Jalalabad by Shri R.S. Mathur, Tehsildar Magistrate, PW4. In
the dying declaration the deceased clearly named accused Ram Sewak to be
the assailant who fired at him with the gun causing bullet injuries on left
side of his neck and shoulder. The deceased in the dying declaration also
mentioned names of the four other accused who are respondents before us as
the assailants who fired at the complainant party. The deceased in the
dying declaration described the cause of incident as village factions
(parts bandi). In Primary Health Centre, Jalalabad his condition was found
serious. After recording dying declaration the deceased was sent for
treatment to District Hospital, Shahjhanpur where he died on the same day
i.e., 27.5.1978 at 2 p.m. The postmortem was conducted by Dr. Sudhir Singh,
Medical Officer, District Hospital, Shahjhanpur who found the following two
gun shot injuries on the person of the deceased.
1. Gun shot wound of entry on left side of neck lower part 5 c.m.
above and laterally from medial and of left clavicle 2.5 c.m. x 2.3. c.m. x
muscle. Margins are inverted.
2. Gun shot wound entry on interior aspect of left shoulder 4.7. c.m.
away and outward from left acromio-clavicular joint 2.2 c.m. x 2 c.m. x
chest cavity deep.
In the opinion of the doctor the death was due to shock and haemorrhage as
a result of the injuries sustained.
One big matellic shot was recovered from muscle of upper throasic vertebra.
Another one big and small matellic shot pieces were recovered from right
side of survical vertebra.
The accused abjured the guilt and took a defence plea of their false
implication because of their enmity with the complainant party. Accused Ram
Sewak in his statement under Section 313 Cr.P.C. took a defence plea that
PW1 Chandrabhan Singh, brother of the deceased was related to one Mohan
Singh who was charged for the murder of real brother of accused Ram Pratap
Singh. Accused Ram Sewak and some of the other co-accused were witnesses in
the said case on behalf of the State. On being released on bail Mohan Singh
was living with Chandrabhan Singh, and that was the motive to falsely
implicate the accused. According to him the incident of firing took place
as some unknown deceits had attacked the house of the complainant on the
alleged date of incident. Similar plea of enmity because of the criminal
case against Mohan Singh was taken by the other co-accused.
The learned Judge of the Trial Court on appreciation of evidence came to
the conclusion that on the basis of mention of names of five accused
(respondents herein) in the First Information Report (Exhibit K-l)and the
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clear mention of their names in the dying declaration recorded by the
deceased (Exhibit K 5/2) coupled with the oral testimony of PW1 Chandrabhan
Singh and Court Witness Jograg Singh, the participation of the respondents-
accused was conclusively proved. The learned Trial Judge, therefore,
convicted and sentenced all the five accused for offences under Section 302
read with Section 148 I.P.C. and Section 148 I.P.C. In the appeal preferred
by the accused persons the High Court acquitted all the accused. By
reappreciating the evidence it concluded that the dying declaration which
was recorded when other members of the complainant party were present in
the hospital cannot be safely relied upon. The High Court also did not find
the version of the incident given by alleged eye-witness Chandrabhan Singh
and the Court witness Jograj Singh as reliable. The oral testimony of the
above two eye-witnesses was rejected on the ground that in the background
of the past enmity between the two factions in the village the possibility
of false implication of the accused was not ruled out.
Learned counsel appearing for the State took us through the evidence on
record. It is submitted that in an incident in which First Information
Report was lodged so promptly and dying declaration was recorded by
Tehsildar in the presence of the Doctor, there was no justification for the
High Court to reject such highly reliable pieces of evidence and acquit the
accused. It is also argued that the two eye-witnesses Chandrabhan Singh,
PW1 and Jograj Singh, the Court witness corroborate the version of the
deceased given in his dying declaration. In such circumstances, on behalf
of the State it is argued, that a sound judgment of conviction passed by
the Trial Court has been upset by the High Court on unsubstantial grounds.
On behalf of the accused learned Senior Counsel made strenuous effort to
highlight various infirmities in the prosecution case for supporting the
judgment of acquittal. On behalf of the accused learned counsel argued that
on the reappreciation of the evidence as is done by the High Court a
conclusion has been drawn which can be said to be plausible and reasonable.
This Court on settled legal principle should not upset the verdict of
acquittal given by the High Court. It is submitted that this Court should
refrain from embarking upon reappreciation of the evidence to come to a
contrary conclusion and convict the accused.
We have heard counsel for the parties and gone through the evidence on
record with meticulous care. We are also conscious of our limitations in
deciding an appeal against acquittal. It is settled legal position that if
a view taken by the Court recording verdict of acquittal is reasonable,
this Court would not substitute its own view and reverse the verdict of
acquittal into conviction. It is by keeping these limitations in our minds
we have scrutinized the evidence. We find that the High Court has on very
unsubstantial and minor infirmities, wrongly/acquitted the accused. Accused
Ram Sewak was clearly named both in the promptly lodged F.I.R. by eye-
witness PWI, Chandrabhan Singh and in the dying declaration of the
deceased. He was identified as having fired at the deceased causing bullet
injuries on his left neck and shoulder. It is rarely to be found in a
criminal case that the description of the incident and injury described in
the dying declaration gets full corroboration from the medical evidence
contained in Injury Report and Postmortem Report.
After examining the evidence on record, we find that there was no
justifiable reason for the High Court to have rejected such evidence of
sterling quality like the dying declaration of the deceased and the First
Information Report, promptly lodged.
The High Court has found the dying declaration unworthy of reliance by
assigning following reasons in its judgment:
"Not only this, according to the dying declaration the enmity was of
’parti-bandi. If there was any such thing like pressurization by these
accused persons, it should have been known to the deceased also. The
absence of any such thing itself and then reference to the parti-bandi
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gives an impression that though the deceased was asked to name certain
persons, he could not understand the reason and took resort to commonly
known cause of enmity, that is, ’parti-bandi. Obviously, he or members of
his family had no occasion to ’parti-bandi’ with residents of village of
in-laws’ howsoever close it may be. These factors not only make the
statement of P.W.I Chandrabhan Singh unworthy of credit but also cast,
shadow on the veraity of the so-called dying declaration. Of course, the
Magistrate could not do anything better than to remove the persons who were
there but he could not undo the effect of words which had already been
conveyed."
We find that the aforesaid reasoning of the High Court for rejecting dying
declaration is highly speculative and fallacious.
The prosecution evidence shows that there was enmity and rivalry between
the two groups in the village and this fact has also been admitted in the
defence plea of all the accused under Section 313 Cr.P.C. Chandrabhan
Singh, PW1 has also mentioned marriage of deceased with the daughter of
Jograj Singh as the cause of annoyance of the accused party. It was,
therefore, not correct on the part of the High Court to come to the
conclusion that in the dying declaration mention of the motive as ’parti-
bandi was a vague suggestion and may be an outcome of some tutoring by
those who had taken him to the hospital. It was natural that the injured
was carried to the hospital. Dying declaration given by me deceased cannot
be held as tainted merely because he was carried by his relations or
friends to the hospital. There is no suggestion of tutoring to the deceased
before he made dying declaration. Apart from the above omission, Jograj
Singh, Court Witness has helped the prosecution to the extent of confirming
that deceased, soon after he was hit by a bullet, had mentioned accused Ram
Sewak to have hit him with the bullet from his gun on his neck and
shoulder. Chandrabhan Singh, PW1 also makes a mention of Ram Sewak to have
hit the deceased, in the written complaint submitted by him promptly within
few hours. If at all it was a case of tutoring, nothing prevented the
deceased to have named apart from five persons other co-accused. There was
no apparent cause to falsely implicate amongst the accused only Ram Sewak
to have fired at him. It is also not the case that Ram Sewak was the arch
enemy or the leader of the other faction. In such circumstances, the High
Court could not have on imagination discarded the dying declaration as not
voluntary and an outcome of possible tutoring.
The First Information Report which was promptly lodged and clearly
implicating accused Ram Sewak as the assailant, who hit the deceased with
bullet from his fire arm, has similarly been rejected on flimsy grounds.
PW1 Chandrabhan Singh, lodger of the F./.R. had in the past contested
election against Ram Sewak for membership to Teachers’ Association. This
was too remote a reason to disbelieve the version in the First Information
Report and to allege false implication. In disbelieving the version of PW1
Chandrabhan Singh in the First Information Report and in deposition in the
Court, the High Court observes thus:
"PW1 Chandrabhan Singh appears to have had some election rivalry in the
matter of Shikshak Sangh with Ram Sewak. The testimony of such a witness
has to be seen with greatest possible caution specially in the
circumstances mentioned above. The use of word ’parti-bandi’ in the so-
called dying declaration of the deceased, as a matter of motive, also might
have its value in the light of this admitted election rivalry. The chances
that the concurrence was something else and was given a shape of attempt to
commit murder due to this election rivalry cannot be ruled out, specially
when no one else than the person who had this grievance, i.e., PW1
Chandrabhan Singh is coming forward to say a word in support of this
contention."
From the observation made above, we find that the High Court has given
undue importance to some election contest for Teacher’s Association which
may not be an incident of very recent past and as grave an issue as to
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falsely implicate a person who might not have even participated in the
crime. This speculation of the High Court that the nature of the occurrence
and motive was something else is not borne out from any evidence or
circumstance. The accused took a defence plea that on the date of incident
unknown dacoits had attacked the house of Jograj Singh. Such a defence plea
was on the face of it utterly false and imaginative. If it was an attack of
dacoits there would have been entry of the dacoits into the house to rob
some valuables from the inmates but nothing of that sort had happened nor
any such suggestion was made to the prosecution witnesses. It was,
therefore, not correct on the part of the High Court to have rejected the
version of PW1 given by him promptly in the First Information Report and
confirmed by him in the Court.
Similarly, the High Court gave undue importance to the fact that boy Nanhe
Singh, son of Jograj Singh who had gone running to alert the inmates of the
house and had mentioned the names of the assailants was not examined by the
prosecution. The accused were known to the complainant party from before
and there was no question of mis-identity. The incident was witnessed and
some of the accused were identified by Chandrabhan Singh and were told to
Court Witness Jograj Singh. The non examination of the third eye-witness
Nanhey Singh, who had also seen the accused and identified some of the
accused when proceeding towards their house is not an infirmity of a nature
as to outright reject the version both of the eye-witnesses and the dying
declaration.
The High Court in disbelieving the prosecution version, also gave
importance to the so called undisputed fact that on the same day of the
incident, there was marriage of sister of accused Ram Sewak and his
participation in the crime, therefore, was highly improbable.
The incident took place at about midnight. Assuming, although there is no
definite evidence of actual marriage function of the sister of accused Ram
Sewak to have been scheduled on that day, it was possible for accused Ram
Sewak to have accompanied other co-accused in the midnight to avenge the
past enmity. The appreciation of this part of the evidence by the trial
Judge ought not to have been rejected by the High Court and hold the
veracity of the prosecution version of alleged involvement of accused Ram
Sewak as doubtfull.
From the evidence discussed above, we find that apart from oral evidence,
the evidence of dying declaration was clinching so as to fully establish
active involvement of accused Ram Sewak. He was identified to have fired at
the deceased and caused bullet injuries to the deceased which resulted in
his death.
Learned counsel appearing for the accused also commented on the medical
evidence as not corroborating the dying declaration and the evidence of the
eye-witnesses. It is argued that Dr. Sudhir Singh, PW2 who conducted the
autopsy on the dead body of the deceased in his cross examination has very
clearly stated that the two bullet injuries on the left side of neck and
shoulder could not have been caused by one fire. The learned Trial Judge in
appreciating the above evidence of the Doctor has observed that if the
bullet fired gets split into pallets, there is a possibility of one fire
causing more than one injury. Without going into such possibilities, even
if the Doctor’s evidence is to be believed that one fire cannot cause two
injuries, it cannot be doubted that the deceased had seen Ram Sewak to have
fired at him and hitting him on his shoulder and neck.
Learned counsel for the accused then argued that as per the prosecution
case as many as 20 rounds were fired by the assailants hence accused Ram
Sewak alone cannot be attributed to have fired and killed the deceased by
his gun. It is true that the prosecution version is that about 20 rounds
were fired. It is however not necessary that all rounds fired might have
hit any of the person as they have already been alerted and had taken a
cover to ward off bullets. According to the witnesses, deceased sustained
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bullet injury as he was on the roof top and was trying to see the
assailants. On the above state of evidence, the prosecution has proved
beyond doubt the involvement of accused Ram Sewak as the one who fired with
his gun and killed the deceased. Learned counsel for the accused argued
that on the appreciation of the evidence as the conclusion drawn by the
High Court can be said to be a reasonable and possible view, this Court
should not upset the verdict of the acquittal.
It is true that this Court should be slow in interfering with the verdict
of the acquittal but as found by us, in this case, a reasoned judgment of
conviction of the Trial Court has been reversed by the High Court on
unsubstantial grounds and merely on conjectures, it would be unjust not to
interfere. See: State of Punjab v. Bura Singh, [1985] 1 SCC 37 and State of
U.P. v. Gokaram, [1984] Suppl. SCC 482. See also: State of U.P. v. Suresh,
[1981] 3 SCC 635. The criminal jurisprudence no doubt requires a high
standard of proof for imposing punishment on an accused, but it is equally
important that on hypothetical grounds and surmises prosecution evidence of
a sterling character should not be brushed aside and disbelieved to give
undue benefit of doubt to the accused. On the evidence,-as discussed above,
the High Court was not justified in rejecting the dying declaration,
evidence of PW1 Chander Bhan Singh who corroborated his promptly lodged FIR
and court witness Jodgraj Singh. We, therefore, find ourselves fully
justified in upsetting the acquittal of accused Ram Sewak and confirming
the judgment of conviction and sentence passed against him by the Trial
Judge.
So far as other four accused are concerned, both in the F.I.R. and in the
dying declaration there is an omnibus statement against them to have been
members of unlawful assembly who fired at the house of the complainant.
There is no other evidence of actual part played by them. There is no
evidence also to infer any common intention on their part with accused Rani
Sewak. For the reason aforesaid we allow this appeal only as against
respondent-accused Ram Sewak and restore the judgment of conviction and
sentence passed against him by the Trial Court. The appeal as against the
other co-accused is hereby dismissed. The bail bond furnished by the
accused Ram Sewak is hereby cancelled and he be taken into custody for his
imprisonment as directed by the Trial Court.