Allahabad High Court acquits two men after 40 years, citing defective Section 313 questioning and refusing a retrial due to delay

The appellants, Baburam Singh, Janardan Singh and Balwant Singh, along with three co-accused, were tried for offences under Sections 147, 148, 149, 323, 324, 336 and 302 IPC arising from an assault on 20 December 1981 concerning a village drain.

The prosecution alleged that the accused, armed with ballams and lathis, attacked Kalpnath Singh after he objected to the obstruction of the drain; Kalpnath died at the spot from stab and other injuries, while several prosecution witnesses were injured.

The prosecution relied principally on the eyewitnesses, including the informant Yogendra Singh and injured witness Aparbal Singh, as well as medical and post-mortem evidence.

The Investigating Officer died before giving evidence, and the investigation papers were proved through a police witness familiar with his handwriting.

The trial court acquitted Kedar Singh and Aliyar Singh, while proceedings against Ram Nath Singh abated upon his death; it convicted the three surviving appellants under Sections 147, 323/149, 324/149 and 302/149 IPC.

During the appeal, Janardan Singh died and the appeal against him abated, leaving Baburam Singh and Balwant Singh as the surviving appellants.

Whether the prosecution evidence was reliable despite the alleged prior enmity, inconsistencies in the informant’s name, gaps in the FIR and inquest papers, non-examination of certain witnesses, non-recovery of weapons, and the Investigating Officer’s death?

Whether, after the acquittal of three co-accused, the surviving appellants could legally be convicted with the aid of Section 149 IPC when the unlawful assembly no longer consisted of at least five proved members?

Whether the appellants could be convicted under Sections 302, 324, 323 or 147 IPC by substituting Section 34 IPC or imposing individual liability for specific acts not expressly put to them in their examination under Section 313 Cr.P.C.?

Whether the appellate court should exercise its power under Section 391 Cr.P.C. to cure the defective Section 313 examination by remanding the case or recording further evidence after approximately forty years?

Section 149 IPC requires proof of an unlawful assembly of at least five persons under Section 141 IPC and proof that the offence was committed in furtherance of its common object or was known to be likely to be committed.

An accused may, in an appropriate case, be convicted under Section 34 IPC or on the basis of individual acts where the necessary facts have been properly put to him and no prejudice is caused, as recognised in Karnail Singh v. State of Punjab, Willie (William) Slaney v. State of Madhya Pradesh, Chittarmal v. State of Rajasthan and Nallabothu Venkaiah v. State of A.P.

However, a material incriminating circumstance not put to the accused under Section 313 Cr.P.C. cannot ordinarily be used against him, pursuant to Hate Singh Bhagat Singh v. State of Madhya Pradesh, Sharad Birdhichand Sarda v. State of Maharashtra, Sujit Biswas v. State of Assam and Reena Hazarika v. State of Assam.

Section 391 Cr.P.C. permits an appellate court to take additional evidence, including further questioning under Section 313(1)(b), but such power is exceptional and must be exercised consistently with fairness and the avoidance of prejudice, as explained in Nar Singh v. State of Haryana and Nasib Singh v. State of Punjab.

Non-recovery of a weapon is not fatal where reliable eyewitness and medical evidence establish the assault.

Relationship or prior enmity does not by itself render testimony unreliable, and contradictions concerning peripheral matters do not discredit an otherwise consistent account.

An adverse inference under Section 114 Illustration (g) of the Evidence Act is discretionary, not mandatory.

The Court found that the core prosecution case was supported by the testimony of PW-1 and injured witness PW-3, and was materially corroborated by the injury reports and post-mortem findings; the alleged defects concerning the FIR, missing crime number, non-recovery of weapons, non-examination of two injured witnesses and the Investigating Officer’s absence were not sufficient, individually or collectively, to destroy the prosecution case.

Nevertheless, Section 149 IPC could not be sustained because three of the six named accused had been acquitted and only two appellants remained convicted; therefore, the statutory minimum of five members for an unlawful assembly was not established.

Although the evidence might otherwise have supported joint liability under Section 34 IPC or individual liability for the alleged assaults, the specific allegations that Baburam and Balwant jointly inflicted the fatal ballam injuries, and that Baburam injured Aparbal, were not specifically put to the appellants under Section 313 Cr.P.C.

The Court held that substituting Section 34 or imposing individual liability in those circumstances would cause prejudice.

It declined to order a remand under Section 391 Cr.P.C., noting the forty-year delay since the incident and the unfairness of requiring the appellants to answer, decades later, for material circumstances omitted from their original examination; a remand would also offend the requirement of a fair and reasonably expeditious criminal process under Article 21.

Their convictions and sentences under Sections 147, 323, 324 and 302 IPC, whether originally imposed with the aid of Section 149 IPC or sought to be sustained under Section 34 IPC or individual liability, were set aside, and they were acquitted.

They were directed to be released forthwith if in custody in the present case, unless wanted in another matter; their bail bonds, if any, were cancelled.

The appeal against Janardan Singh had already abated upon his death and was unaffected by the judgment.