STATE OF U.P. v. ATAR SINGH AND ORS

Citation: [2007] 11 S.C.R. 1018

Court: Supreme Court of India

Bench: ARIJIT PASAYAT, D.K. JAIN

Case summary

STATE OF U.P. v. ATAR SINGH AND ORS.pdf

Judgment text

1 _, STATEOFU. P. v. ATAR SINGH AND ORS. NOVEMBER, 2007 [DR. ARIJIT PASAYAT AND D. K. JAIN,JJ. ] ~ ,.. ,. Penal Code, 1860-ss. 302, 323 and 324rlw149, 147and148 and 452-Murder 452-Murder and injury caused-Three eyewitnesses-Conviction by trial court-Acquittal by High Court on the grounds interalia that motive not proved, prosecution case not corroborated by independent witnesses, independent eye-witness not trustworthy and non-explanation ofinjury on one ofthe accused creating doubt about prosecution case-On appeal, held: . Acquittal justifiedin view ofcumulative effect ofthe circumstances ofthe case- --4 However non-explanation ofthe injury on the accused, in the facts, ~ . would not affect veracity ofthe prosecution case. Criminal Trial-Non-explanation of injury on the accused- ; Effect of-On prosecution case. Practice and Procedure-Criminal appeal-Against order of acquittal-Review ofevidence-Permissibility.

Appeal-Appeal against ac:quittal-lnte1jerence with-Scope of Respondents-accused were prosecuted for having caused death . ,~ 1· of on person and causing injuries was that sister of five of the respondents had been abduct_ed by brother-in-law of PW-1, six months prior to the incident. On the day ofthe incident exchange of hot words and abuse took place between PWl and father offive of the accused 'D" in conneeti. on with the abduction. On intervention oftwo persons, PW, 1 went to his house. Thereafter, 'D' alongwith y- - HELD: 1. 1. There is no embargo on the appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order ofacquittal shall not be interfered with because the presumption ofinnocence ofthe accused is further strengthened by acquittal.

The golden thread which runs through the web of administration of justice in criminal cases is that if two views are "~ possible on the evidence adduced in the case, one pointing to the guilt ofthe accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration ofthe Court is to ensure that miscarriage ofjustice is prevented. A miscarriage ofjustice which may arise from acquittal ofthe guilty is no less than from the conviction ofan innocent. In a case where admissible evidtoce is ignored, a duty is cast upon the appellate Court to re-appreciate the evidence where the accused has been acquitted, for the purpose ofascertaining as to whether any of the accused really committed any offence or not. [Para 10) [1025-G; 1026-A, B, CJ ~ .... Bhagwan Singh and Ors. v. State ofMadhya Pradesh, (2002) 2 Supreme567, relied on. 1. 2.

The principle to be followed by appellate Court considering the appeal against the judgment ofacquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference. [Para 10) [1026-C, D) _.... Shivaji Sahabrao Bobade andAnr. v. State ofMaharashtra, AIR (1973) SC 2622; Ramesh Babula! Doshi v. State ofGujarat, (1996) 4 Supreme 167; Jaswant Singh v. State ofHaryana, (2000) 3 Supreme 320; Raj Kishore Jha v. State ofBihar and Ors. , (2003) 7 Supreme 152; State ofPunjab v. Karnail Singh, (2003) 5 Supreme 508; State ofPunjab v. Pohla Singh and Anr. , (2003) 7 Supreme 17; and V~ Ratheesh v. State ofKera/a, [2006] 10 SCC 617, relied on. 2. 1. In isolation the circumstances highlighted by the High Court may not be sufficient to direct acquittal.

Considering the cumulative effect ofcircumstances which have weighed with the High Court to direct acquittal, it cannot be said that the view taken by the High Court is not a plausible view. Hence, the order ofacquittal is not interfered with. [Paras 11and14) [1026-F; 1029-B, C) 2. 2. However, it cannot be said that in each and every case where prosecution fails to explain the injuries found on some ofthe accused, the prosecution case should automatically be rejected, without any further probe. Any non-explanation ofthe injuries on the accused by the prosecution may affect the prosecution case. But such a non.. explanation may assume greater importance where the defence J i STATE v. ATARSINGH 1021 gives a version which competes in probability with that of the prosecution.

But where the evidence is dear, cogent and creditworthy and where the Court can distinguish the truth from falsehood the mere fact that the injuries are not explained by the prosecution cannot by itself be a sole basis to reject such evidence, and consequently the whole case. Much depends on the facts and circumstances of each case. [Para 12] [1028-B, C] Lakshmi Singh and Ors. v. State ofBihar, [1976] 4 SCC 394 and Vijayee Singh and Ors. v. State ofUP. , AIR (1990) SC 1459, relied on. Mohar Rai and Bharath Rai v. The State ofBihar, [1968] 3 SCR 525, referred to. 2. 3. Non-explanation of injuries by the prosecution will not affect prosecution case where injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, I so independent and disinterested, so probable, consistent and creditworthy, that it outweighs the effect ofthe omission on the part ofprosecution to explain the injuries.

In the case at hand, trifle and superficial injuries on accused are oflittle assistance to them to throw doubt on veracity ofprosecution case. [Para 13] [1028-D, E; 1029-B] Ramlagan Singh v. State ofBihar, AIR (1972) SC 2593; Hare krishna Singh and Ors. v. State ofBihar, AIR (1988) SC 863; and Surendra Paswan v. State ofJharkhand, (2003) 8 Supreme 476, relied on. CRIMINAL APPELLATE JURISDICTION :Criminal Appeal No. 54of2001. From the final Judgment and Order dated 13. 04. 2000 ofthe High Court ofJudicature at Allahabad in Criminal Appeal No. 2124of1980. Ratnakar Dash, Sanjay Singh and Anuvrat Sharma for the Appellant. Kusum Chaudhary for the Respondents. TI1e Judgment ofthe Court was delivered by ~ --( _, DR. ARIJIT PASAYAT, J. 1. Challenge in this appeal is to the judgment rendered by a Division Bench of the Allahabad High Court which by the impugned judgment acquitted the respondents and set aside the conviction recorded. by the learned Additional Sessions Judge in .

Sessions Trial No. 316of1979. Each ofthe accused had been convicted by the trial court and sentenced to life imprisonment under Section 302 ofthe Indian Penal Code, 1860 (in short the 'IPC') read with Section ~ ·~ 149 IPC, three months RI under Section 323 read with Section 149 IPC, six months RI under Section 324 IPC read with Section 149 IPC and two years RI under Section 452 IPC. Accused Jai Singh, Atar Singh, Mohan Singh, Beer Singh and Baburam were further convicted under Section 147 IPC and sentenced to nine months RI. Accused Ramesh and Lal Singh were however convicted under Section 148 IPC and sentenced to one year's RI. All the sentences were directed to run concurrently. The High Court reversed the judgment and directed acquittal in the appeal filed by the accused persons. -4, 2.

Prosecution version as unfolded during trial is as follows: ~ - One Ram Murti (hereinafter referred to as 'deceased') lost his life ' in the incident whereas three others namely, Shyam Pal (PW 1), Sohan Pal (PW 3) and Katori Devi sustained injuries. The incident took place on 4. 5. 1979 at about 6. 30 P. M. in village Balli Nagla, Police Station Qadarchowk, District Budaun. The report ofthe incident was lodged by Shyam Pal (PW 1) on 5. 5. 1979 at 3. 15 A. M. The distance of police -station from the place ofoccurrence is 8 kms. The accused-respondents Lal Singh and Ramesh were allegedly armed with spears whereas rest had lathis. The accused-respondents Jai Singh, Atar Singh, Lal Singh, / --- -~ Mohar Singh and Beer Singh are the sons ofDallu who also allegedly participated in the incident but died after few days ofthe ir{cident. About 6 months before this incident, Durgapal-brother-in-law ofShyam Pal (PW ·' 1) had abducted Dhika daughter ofDallu.

Accused-respondents began to l:iear ill will against him and his family members on this account. On 4- 5-79 at about 6. 30 P. M. , exchange ofhot words and abuses took place r-1 between Shyam Pal (PW 1) and Dallu at the Chaupal ofNek Ram in connection with abduction ofDhika Some persons intervened in the matter and Shyan1 Pal went to his home. A little later, all the accused-respondents f t along with Dallu entered the house of Shyam Pal. As mentioned earlier, Lal Singh and Ramesh were armed with spears whereas rest had lathis. Dallu asked the other accused persons to teach a lesson to Shyam Pal and his family members for defaming him. All the accused-respondents then started assaulting Shyam Pal (PW 1) and his brothers Sonpal and Ram Murti who were present there. When their mother Katori Devi came to their rescue, she was also beaten up. Nathu Singh (PW 2), Ulnfat Irfan, Prem Pal and others also arrived there.

Shyam Pal (PW 1), Ram Murti, Sohan Pal (PW 3) and their mother Katori Devi sustained injuries. Shyam Pal (PW 2) with his nephew Prempal went to ftie police station and lodged a report by oral narration on 5. 5. 1979 at 3. 15 A. M. which was taken down by head constable Baburam (PW 4). Investigation was undertaken and on completion thereof, charge sheet was filed. Accused persons pleaded innocence. In order to further accusations, prosecution examined eleven witnesses. Learned trial Judge recorded conviction primarily relying on the evidence ofinjured witnesses. 3. It was firstly noticed by the High Court that the motive assigned by the prosecution agallt;t the accused respondents did not stand the test oflogic. The incident ofkidnapping and abduction ofDhika daughter of Dallu by Durgapal-brother-in-law of Shyam Pal (PW-1) had taken place about six months before. Even no FIR had been lodged against Durgapal from the side ofaccused persons regarding that incident.

It was admitted by PW-1 that even no Panchayat was convened. Further Shyam Pal (PW-1) had admitted that at the time ofexchange ofhot words with Dallu at the Chaupal ofNek Ram, two persons namely, Nek Ram and Urman Singh were there who had intervened. None ofthem was produced by the prosecution to indicate the origin ofthe incident. Dallu himselfwas T. B. patient and the High Court found it hard to believe that after alleged exchange ofhot words at the Chaupal ofNek Ram, he with all his sons, brother and nephew would have appeared in the house ofPW-1 to assault him and his family members. According! y, it was held that even there was no immediate motive for the alleged occurrence. 4. It was also noted that there was no corroboration to the prosecution version by any independent witnesses. Nathu Singh (PW-2) was resident ofanother village who claimed to be present at the place of l \ occurrence. He stated that he had come to the village to meet his relative.

According to him the house ofRajpal was situated at a distance of 15- 16 paces from the place of incident. The High Court noted that the existence ofRajpal's house in the vicinity ofplace ofoccurrence had not been shown in the site plan. The High Court found that some parts ofhis statement could not he re-conciled with other parts eg. that he had reached the village ofincident at 6. 30 a. m. and was present at the time ofincident which took place about 12 hours later. His statement was to the effect that he had gone to his son. ,. in-law Rajpal as the latter was about to go to his father-in-law's house and he wanted to send some cows to his father-in-law. He wanted to send this information to his father-in-law but his cousin-in-law was not available. He also stated that after some time he had returned to his village. The High Court found his presence to be not established. The High Court also noted that Sohan Pal (PW-3) who claimed to be an eye witness was the brother ofPW-I. 5.

The High Court noted that even though in the FIR names ofsome other persons have been noted as witnesses, none of them had been examined. The HighCourt was ofthe view that statementofthe deceased recorded by the investigating officer under Section J. 61 ofthe Code of Criminal Procedure, 1973 (in short the 'Cr. P~C. ') cannot be treated to be the dying declaration. The investigating officer (PW-11) noted that when he reached the spot in the morning of 5. 5. 1979 subsequent to the lodging ofthe FIR at about 3. l 5 a. m. he had found ·the deceased, Sohan Pal and Katori to be lying there in injured condition. He recorded the statement ofthe deceased {Exh. Ka. 20). The High Court referred to the bed head ticket ofthe deceased in which it was stated that his general condition was noted low when he was admitted in the hospital on 5. 5. 1979. The High Court also noted the admitted position that the investigating officer did not follow the instructions contained in Rule 115 ofthe U. P.

Police Regulations relating to recording ofdying declaration. Reference was made to a decision of this Court in Palak Ram v. State ofUP. , AIR (1974) SC 2165 wherein it was noted that it would not be prudent to base conviction on a dying declaration made to the investigating officer which is not signed by the persons making it and has not been taken in the presence oftwo witnesses. }- STATE v. ATARSINGH[PASAYAT,J. ] ,. ~ 6. The High Court also noted that there was no explanation offered as to why the dying declaration was not recorded in the presence ofthe Magistrate which is the usual course, though he died on 7. 5. 1979 at about 4. 00 p. m. Therefore, the High Court treated the same to be a statement recorded in terms of Section 161 of Cr. P. C. which cannot be treated to be a dying declaration. ,B 1 ~- 7. The High Court also noted another factor which according to it was significant, i. e.

the presence oflarge number ofinjuries on accused Mohar Singh for which no explanation was offered. This according to the High Court cast a genuine doubt about the actual time, place, number of assailants and weapons for the injuries. The High Court noted that injuries on accused Mohar Singh were not superficial and some of them were even incised wounds. The investigating officer had admitted that Mohar Singh was ruTested on 6. 5. 1979. The High Court found it rather unusual that he was produced for medical examination before a Doctor Shiv Kumar Saxena (PW-5) on 5. 5. 1979 at 5. 20 p. m. by a constable ofthe ,.. __ Police Station. Therefore, the High Court noted that if there was no explanation offered as to why he was not arrested on 5. 5. 1979, the FIR was claimed to have been lodged at 3. 15 a. m. on that day. The High Court noted that though PW-1 and PW-3 were stated to be injured witnesses in the background facts the prosecution version was highly improbabilised.

The evidence of PW-2 was found to be not truthful. As a cumulative result of the discussions the High Court found that the prosecution has not been able to substantiate its version. 8. As noted above, the State has questioned correctness of the /'-\ conclusions recorded by the High CoUI1. With reference to the evidence of injured witnesses, PW-1 and PW-3 it is stated thatthey are injured witnesses and their version was to be taken as credible and cogent. There was no reason as to why the injured person would falsely implicate the i1mocent person. 9. None appeared for the respondents when the matter was called. ,, 10. There is no embargo on the appellate Court reviewing the evidence upon which an order ofacquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of ,< --{ --< innocence ofthe accused is further strengthened by acquittal.

The golden thread which runs through the web ofadministration ofjustice in criminal cases is that iftwo views are possible on the evidence adduced in the case, one pointing to the guilt ofthe accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from ~ acquittal ofthe guilty is no less than from the conviction ofan innocent. --- In case where admissible evidence is ignored, a duty is cast upon the appellate Court to re-appreciate the evidence where the accused has been acquitted, for the purpose ofascertaining as to whether any ofthe accused really committed any offence or not. [See Bhagwan Singh and Ors. v. State ofMadhya Pradesh, (2002) 2 Supreme 567].

The principle to be followed by appellate Court considering the appeal against the judgment ofacquittal is to interfere only when there are compelling and substantial reasons for doing so. Ifthe impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably _.... ... eliminated in the process, it is a compelling reason for interference. These aspects were highlighted by this Court in Shivaji Sahabrao Bobade and Anr. v. State ofMaharashtra, AIR (1973) SC 2622, Ramesh Babula! Doshi v. State ofGujarat, (1996) 4 Supreme 167, Jaswant Singh v. State ofHaryana, (2000) 3 Supreme 320, Raj Kishore .! ha v. State of Bihar and Ors. , (2003) 7 Supreme 152, State ofPunjab v. Karnail Singh, (2003) 5 Supreme 508 and State ofPunjab v. Pohla Singh and Anr. , (2003) 7 Supreme 17 and VN Ratheesh v. State ofKerala, [2006] 10 sec 617)]. --(~ 11.

As is rightly contended by learned counsel for the appellate-State in isolation the circumstances highlighted by the High Court may not be sufficient to direct acquittal. Two important factors which have been noted by the High Court are (i) non explanation of injuries on accused Mohar Singh and (ii) the reason for his non arrest on 5. 5. 1979 when he had appeared before the police officers and had been sent for medical examination. r" 12. We shall first deal with the question regarding non-explanation of injuries on the accused. Issue is ifthere is no such explanation what would be its effect? We are not prepared to agree with the learned counsel for the defence that in each and every case where prosecution fails to explain the injuries found on some ofthe accused, the prosecution case should automatically be rejected, without any further probe. In Mohar Rai and Bharath Rai v. The State ofBihar, [1968) 3 SCR 525, it was observed: "...

In our judgment, the failure ofthe prosecution to offer ahy explanation in that regard shows that evidence ofthe prosecution witnesses relating to the incident is not true or at any rate not wholly true. Further those injuries probabilise the plea taken by the appellants. " In another important case Lakshmi Singh and Ors. v. State ofBihar, [1976] 4 SCC 394, after referring to the ratio laid down in Mohar Rai 's case (supra), this Court observed: "Where the prosecution fails to explain the injuries on the accused, two results follow: (1) that the evidence ofthe prosecution witnesses is untrue; and (2) that the injuries probabilise the plea taken by the appellants.

" It was further observed that: "In a murder case, the non-explanation ofthe injuries sustained by the accused at about the time ofthe occurrence or in the co·Jrse of altercation is a very important circumstance from which the Court can draw the following inferences: t '~ (1) that the prosecution has suppressed the genesis and the origin ofthe occurrence and has thus not presented the true version; (2) that the witnesses who have denied the presence of the injuries on the person ofthe accused are lying on a most material point and, therefore, their evidence is unreliable; (3) that in case there is a defence version which explains the injuries on the person of the accused assumes much greateF importance where the evidence consists ofinterested or inimical -( ~ ~ witnesses or where the defence gives a version which competes in probability with that ofthe prosecution one.

" In Mohar Rai's case (supra) it is made clear that failure ofthe prosecution to offer any explanation regarding the injuries found on the accused may show that the evidence related to the incident is not true or at any rate not wholly true. Likewise in Lakshmi Singh 's case (supra) it is observed ~ that any non-explanation ofthe injuries on the accused by the prosecution • may affect the prosecution case. But such a non-explanation may assume greater importance where the defence gives a version which competes in probability with that ofthe prosecution. But where the evidence is clear, cogent and creditworthy and where the Court can distinguish the truth from falsehood the mere fact that the injuries are i:ot explained by the prosecution cannot by itselfbe a sole basis to reject such evidence, and consequently the whole case. Much depends on the facts and circwnstances ofeach case. These aspects were highlighted by this Court in 'Vijayee Singh and Ors. v. State ofUP.

, AIR (1990) SC 1459. .... ( ~ 13. Non-explanation of i~juries by the prosecution will not affect prosecution case where injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it outweighs the effect ofthe omission on the part ofprosecution to explain the injuries. As observed by this Court in Ramlagan Singh v. State of Bihar, AIR (1972) SC 2593 prosecution is not called upon in all cases to explain the injuries received by the accused persons. It is for the defence to put questions to the prosecution witnesses regarding the injuries J_ -' of the accused persons. When that is not done, there is no occasion for the prosecution witnesses to explain any injury on the person of an accused. In Hare krishna Singh and Ors. v.

State ofBihar, AIR (1988) SC 863, it was observed that the obligation ofthe prosecution to explain the injuries sustained by the r<ccused in the same occurrence may not arise ~ t in each and every case. In other words, it is not an invariable rule that y-( the prosecution has to explain the injuries sustained by the accused in the same occurrence. Ifthe witnesses examined on behalfofthe prosecution are believed by the Court in proof of guilt of the accused beyond reasonable doubt, question ofobligation ofprosecution to explain injuries sustained by the accused will not arise. When the prosecution comes with a definite case that the offence has been committed by the accused ~d proves its case beyond any reasonable doubt, it becomes har~ly necessary for the prosecution to again explain how and under what circumstances injuries have been inflicted on the person ofthe accused. It is more so when the injuries are simple or superficial in nature.

In the case at hand, trifle and superficial injuries on accused are oflittle assistartce to them to throw doubt on veracity ofprosecution case. (See Surendra Paswan v. State ofJharkhand, (2003) 8 Supreme 476). 14. Considering the cumulative effect ofcircumstances which have weighed with the High Court to direct acquittal, it cannot be said that the view taken by the High Court is not a plausible view. That being so, we are not inclined to interfere with the order ofacquittal. The appeal deserves to be dismissed which we direct. K. K. T. Appeal dismissed. ,'!