STATE OF U.P. v. PUSSU @ RAM KISHORE

Citation: [1983] 3 S.C.R. 294

Court: Supreme Court of India

Bench: E.S. VENKATARAMIAH, V. BALAKRISHNA ERADI

Case summary

The time, the date and place of the alleged occurrence are also not in dispute. (c) of the Constitution had been dismissed by the High Court.

Judgment text

STATE OF U. P. Av. PUSSU @ RAM KISHORB June 2, 1983 [B. S. VENKATARAMIAH AND V. BALAKRISHNA ERADI, JJ. ] ' Penal Code-Section 302-HiCh Court-If could conduct a mock sc,ene of· occurrence in the Court. Right ofself-defence-Aggressor-Ifcould claim right. ' I . Acquittal ofone oftwo. accused-Ifwould bar conviction ofthe s~cond. The prosecution case against the accllsed-re5pondent was -that when the deceased and his wife were returnillg home from their field, he and thi~ coaccused armed with a gun and a country-made pistol fired at the. deceased causing him injuries,_ that some passersby, including the two eye witnesses, • by his waist, the empty cartridge fired at me remained inside the gun. J>ussu could not take it out or throw it away nor could he open the gun. To counsel: And in the meantime the gun was snatched. " tl. P. STATE v. PUSSU (Venkataramiah, J. ) There is nothing elicited in the cross examination of this witness which could discredit his testimony.

There was no ill-will between Chhatrapal and the members of Pussu's family. He ·denied a suggestion that there were some proceedings under section ·107 Criminal Procedure Code against him. There was also no evidence in suppori of that suggestion. Chhafrapal had been in fact injured by gun shots and the gun used on that occasion tad in fact been seized. Why J:ie should exonerate Jia Lal the father of Pussu from the responsibility of injuring him if Jia 1,al was in fact responsible for it but implicate Pussu is incomprehensible. • · Gaya Prasad (P. W. 7) who was also an injurnd eye witness stated in the course of his deposition thus: "When Bankey Lal and his wife reached near Har Sakri well, Pussu accused, who was armed with the gun of his father, and Sheo Rakhan accused who was armed with a· country made pistol began to fire gunshots at D· Bankey Lal. Bankey Lal and his wife raised alarm and ... ,. _ ran towards the village.

· Chhatrapal and I, following him were going towards the village by the same passage. · Chhatrapal forbade him but Pussu said that he would not leave Bankey Lal alive. At this Chh! 'trapal ran to catch hold of Pussu whereupon Pussu aimed the gun at Chhatrapal. Chhatrapal turned and the gunshot hit him on his back. Even after being hit by the gunshot, Chhatrapal caught hold of Pussu by his waist. Ram Gopal, Lakhan Lal, Jia Lal Gadaria, and Ram Nath came running to the place of occurrence from the south. Ram Gopal and I went just close to Pussu, Ram Gopal and I advanced to snatch the gun, but Pussu gave one blow of th;: butt of the gun to each of us on the head. At this I gave 4-5 blows of lathis to Pussu and then we jointly snatched his gun. When we snatched his gun he went away towards the mango tree where his safa (brother-in-law) was present On receiving the injury, Bankey Lal had sat down in the way. Ram Nath and Jia Lal lifted him on their arm and started for the village.

When they reached near the peepal tree, Pussu came with the pistol of his brother-in-law Sheo Rakhan struck it with the abdomen of Bankey Lal and fired, Bankey Lal SUPROO COURT REPORTS (! 983] j S. C. R. died just on receiving the pistol shot. Thereafter PLJssu and Sheo Rakhan ran away towards Raeepur. " Jia Lal referred to in. the above passage is Jia Lal Gadaria and not Jia Lal the father of Pussu. Even this witness is not shown to be . interested in giving false testimony. Lakhan Lal (P. W. 1) and Ram Nath (P. W. 10) who were also eye witnesses have given substantially the same version as the evidence of Chhatrapal and Gaya Prasad ! 'nd their evidence fs not also shown to be unworthy of acceptance. As against the above evidence adduced by the prosecution, we have the evidence of Jagarinath (D. W. l 1. He has .

stated that at the time when the occurrence took place he was in his plot near Bhagwa Talab which was close to the scene of occurrence, that he heard the cries of Pussu 'Run up, save me, Bankey Lal . and Ghaseetey are killing me'. What took place thereafter may be narrated in his own words thus: Having gone there, I saw that Bankey Lal dece~sr:d and Ghaseetey were assaulting Pussu accused with lathis. Jia Lal challenged both of them and said "Do not beat him, otherwise I shall shoot you down". On Jia Lal's saying so, Chhatrapal and Bankey stopped for a short time; but they again rushed to assault Pussu. In the meantime Pussu accused took shelter behind the mango tree. Then Jia fired 2-3 shots at Chhatrapal and Bankey. On receiv· ing the gun shots injuries Chhatrapal fell down on the ground. Bankey Lal, too, received some injuries. In the meantime Bankey Lal's servant Nanhua caught hold of Jialal ace. used from behind, as a result of which his arms also got bound.

Nanhua shouted "Run up. I have caught hold of the sala". At this Shiva Rakhan accused reached G. there. He caught hold of Nanhua and felled him down and · . Jia Lal accused was released from his hold. Bankey Lal deceased rushed to snatch the gun of Jia Lal accused, but as soon as his hand fell on the barrel of the gun, it ggt discharged and the shot hit Bankey Lal on his right flank, as a result of which Bankey Lal fell down de. ad then and there. The accused persons ran away with their licensed gun towards their. house. This defence witness has not been believed by the trial court. Nor do we find that any reliance has been placed on his evidence by the High Court. The statement of this witness was recorded by the police on January 31, 1972 after P. W.. JS Yamuna Prasad Pandey came to know that the name of this witness had been mentioned in -the report given by Pussu at the Kotwali Police Station.

He has stated in his cross-examination that "When I sighted for the first time, I saw that Jia Lal was firing shots at Ghaseetey alias Chhatrapal and Bankey". If that is so his version about what all had preceded that stage is manifestly his imagination. We have carefully gone through his evidence and it does not inspire confidence. The prosecution evidence cannot be rejected on the basis of the evidence of this • defence witness, particularly because the minor injuries stated to be on the person of Pussu are not sufficient to hold that Pussu and Sheo Rakhari were the victims of the aggression on the part of Chhatrapal and Bankey ta!. This defence version is also contradicted by the conduct of Pussu immediately after the incident.

If he was an innocent person and his father bad fired the gun in defence of Pussu and Sheo Rakhan he would also have been an informant of the incident at the Khakhreru Police Station which was only about four miles from his village· or he would have been available for + interrogation by the police, if they came at the instance of somebody else. But he ran away from the village and he was found at 8 A. M. on the next day i. e. October 16. 1971 at the Kotwali Police Station, Fatehpur which was about forty five miles from his village. In order to reach that place he had to pass through at least three places where there were police stations. As the trial court has observed he must have gone there to have proper legal advice before gaving his version of the incident at a police station where he could find an officer who would oblige him by riot arresting him.

Ordinarily in a case of this nature a police officer would have contacted the concerned police station to ascertain facts and to seek instructions. Pussu, as mentioned earlier, was arrested on October 23, 1971 when he surrendered before court. The gist of the version in the F. I. R. (Exh. Ka. 10) given by Pussu at the Kotwali Police Station, Fatebpur is summarised by the trial court in its judgment and the relevant portion of that -judgment reads thus : "When both these accused reached near "Bhagwa . Talab" they found deceased Bankey Lal. Ghaseetey alia• Chhatrapal and Bankey Lal's servant Nanhoon coming from north side of the village towards them armed with lathis. On account of fear both these accused left that (! 983] 3 S. C. J\. passage but the aforesaid three persons rushed up at them and began to assault them with lathis. On hearing their cries his father accused.

Jia Lal who was having ·his licemed gun, Jagannath and Shea Autar reached there and began to s~ve them from the assault. The assailants namely Bankey Lal, Chliatrapal and Nanhoon threw down his father Jia Lal on the ground and began to snatch his gun. In the meantime he ran away from there but when he was running away he heard a gun shot sound. He did not go to his police station due to fear and, therefore, reached Police Station Kotwali, Fatehpur. He had also stated about injuries over his head; hand and back caused by lathi blows".. - This version, apart from the other infirmities pointed· out by the trial court, contradict. s the version of Jagannath (D W. I) that when he first 'sighted' Jialal the father of Pussu was already firing shots. The story contained in Exh. Ka-10 appears to be one spun out after a lot of deliberation. We have set out above fo some detail the prosecution evidence and the defence version only to show how dem.

onstrably the Higb Court w~s in error in rejecting the case of the prosecution. We have already referred to the experiment carried out by High Court at the hearing of the appeal by asking Chhatrapal to run. about and an advocate to load a gun in their presence. Having been impressed by the result of that experiment the High Court first rejected the ·evidence of Chhatrapal that he had tried to catch hold of Pussu. The High Court ·then found that . there was a material omission. in the information given by Jang Bahadur Singh as "there was no mention about Gaya Prasad having inflicted four or five lathi blows on Pussu and it is only in the trial court that the eye witnesses have asserted tbat four or five lathi bfows were inflicted on Pussu''. Having regard to the several details about the incident given by Jang . Bahadur Singh who was in fact not an eye witness, the omission referred to above appears to be a trivial one not affecting credibility of the prosecution version.

The third ground on which the High Court found the prosecution case as not being worthy of acceptance is again a strange one. The relevant part of the judg- ment of the High Court reads thus: "The eye-witnesses have asserted that after the gun had been snatched away, Pussu freed himself and taking the pistol from appellant Sheo Rakhan fired ~ fatal shot at Bankey Lal from point blank range. It is highly improbable that after Pussu had been arrested and disarmed he could be allowed to free himself from the hands of young men like Lakhan Lal, Gaya Prasad and Ram Pal. The normal conduct of Pussu after he . had freed and rearmed himself with pistol would have been to demand the return of his gun from Gaya Prasad on the point of his pistol rather than to pursue his injured victim Bankey Lal and to· shoot him dead". What is improbable about· the prosecution version, we fail to see. If Pussu's object was to kill.

Bankey Lal, he would instead of demanding·the return of the gun on the point of his pistol, run towards Bankey Lal and shoot at him, which in fact is what he is alleged to have done in this case. The High Court's opinion that the normal conduct of a person in the position of Pussu would have been what the High Court has stated in the course of its judgment is a mere surmise. At any rat'e on such an imaginary ground the evidence of the eye witnesses could not be rejected. Another reason given by the High Court is again a supposition resting on no solid ground and that relates to the condition of the gun (Exh. Ka-l). The High Court has observed : "None of the eye-witnesses has stated that any hlow of lathi plied by Gaya Prasad fell on the butt of the gun. . Gaya Prasad has stated that he inflicted four or five lathi blows on Pussu. The gun was deposited in the Mal Khana at the Police Station and a· piece of the wooden part of the butt of the gun was found broken.

Th\s was noted in the recovery memo (Exh. Ka-I). The gun was examined by us· and we found a wooden piece ·of the butt having chipped off and the opening lever of the gun had become inoperative. This could only ·happen if lathi blow fell on the butt of the gun. None of ·G the eye-witnesses has deposed that any blow from lathi plied by Gaya Prasad regis\ered a hit on the gun, There is no explanation as to how the wooden butt of the gun (material Exh. I) got broken and consequently the gun could not be opened. " In reaching the above conclusion, the High. Court has overlooked the evidence of Gaya Prasad (P. W. 7) in his examination-in- chief that when they were trying to snatch the gun Pussu gave one blow with the butt of the gun on his head and one blow on the head of Ram Gopal and the further statement in his cross-examination that on account of its being snatched with jerks, the wood~fixed at the lower part of the.

gun was left in the hands of Pussu himself and that the gun could have been damaged by being used as mentioned above. The H;gh Court was wrong in holding that the gun could have been damaged only if a lathi blow had fallen on it. The explanation given by the prosecution is quite satisfactory indeed. We are not also impressed by the other ground relied on by the High Court that "in ~ases of emergency is repeated firing a shooter does not normally start collecting empty cartridges auto· matically ejected from the gun before reloading the gun" and "the non-recovery of the fired cartridge either in the breach of the gun or from the spot is a suspicious circumstance" having regard to the overwhelming evidence in this case in support of the prosecution case. The rule governing the appreciation of evidence in a criminal case is laid down by this Court in State ofPunjab v. Jagir Singh & 1 Ors.

( ) in which this Court set aside the judgment of acquittal passed by the High Court which had reversed the conviction and sentence imposed by the trial court thus : "A crimi,nal trial is not like a fairy tale' wherein one is free to give flight to 6ne's imagination and phantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is·charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis wo_uld have > to depend upon its own facts. Although the benefit of .

every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy on the grounds which are fanciful or in the nature Of conjectures". (I) [1974] I S. C. R. '28. We have pointed out above the manifest errors committed by the High Court in the course of its judgment accquitting the accused Pussu. On a careful reading of the evidence in this case, we feel that Jia Lal had out of love and affection towards his son from the beginning tried to shield Pussu but has ultimately not been successful. From the evidence it is obvious that Pussu· and Sheo Rakhan were armed with_ fire arms and they were the aggressors. The plea of self defence urged on behalf of Prissu cannot be accepted. person who is an aggressor and who seeks an attack on himself by his own aggressive attack cannot rely upon the right of -self-defence if in the course of the transaction he deliberately kills another whom he had attacked earlier.

In the instant case having regard to the nature of the weapon used it has to be held that the act by-which the death of Bankey Lal was caused by Pussu was done with the intention of causing death, and we do not find any extenuating circumstances which would mitigate the offence committed by Pussu. The trial court was, therefore, right in convicting Pussu of an offence . punishable 1mder section 302 LP. C. The acquittal of Sheo Rakhan does not affect the prosecution case against Pussu. There is no legal bar for convicting Pussu alone in"this case on the facts and in the circumstances of the case. The principle of issue estoppel is inapplicable here, This is not a case in which it could be said thaf two views were reasonably possible. The only reasonable view to be taken is the one taken by the trial court.

We are aware of the rule of practice that ordinarily this Court should not interfere with judg- ments of acquittal on a mere reappreciation of evidence, But if there are glaring infirmities in the judgment of the High Court resulting in a gross miscarriage of justice, it is the duty of this Court to interfere. In the instant case we find that the approach of the High Court is basically erroneous and its judgment is founded on false assumptions, conjuctures and ·surmises. On a consideration of theentire mass of evidence adduced ·in this case we are satisfied that the prosecution ·has established beyond reasonable doubt that Pussu had committed the murder of Bankey Lal. In cases of this natllre it is advisable to bear in mind the following observations of Krishna Iyer, J. in Shivoji-Sahebrao & Anr. v. State of Maharashtra(') II at pages 492-493 : (I) . [19741 I S. C. R. 489.

"Even'at this stage we may remind ourselves of a necessary social perspective in criminal cases which suffers from insufficient forensic appreciation. The· dangers of exaggerated devotion to the rule of·benefit of ' doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accouJ1tability: The cherished principles or golden thread of proof beyond reasonable doubt which runs thro' the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the: attitude that a thousand guilty men may go but one innocent martyrshould not suffer is a false dilema. Only reasonable doubts· belong to the accused. Otherwisi: any practical system of justice will.

then break down and lose credibility with the community. The evil of acquittil)g a guilty person light:heartedly as a learned author Glanville Williams in 'Proof of Guilt' has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicted. 'persons' and more severe punishment of those who are found guilty. Thus too frequent acquittals of the gnilty may lead to a ferocious penal law, eventually eroding the judicial protection . of the guiltless. For all these reasons it is true to say, with Viscount Simon, that "a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent....

" In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminaljustice potent and realistic. " In the result, we set aside the judgment of the High Court in so far as Pussu is concerned and restore his conviction for the offence punishable under section 302 I. P. C. as ordered by the trial court. As regards sentence we feel that ends of justice would be met. if we impose the punishment of imprisonment for life on him. We. U. P. STATE v. PUSSU (Vankataramiah, J. ) 311 . ,, accordingly·sentence Pussμ to imprisonment for life: We also restore the conviction of Pussu for the offences punishable under sections A . ... 307 l. P. C. , 323 I. P. C. and section 27 of the Arms Act and the sentences imposed ou him on . that account as ordered by the trial · . ; I ·~~ _ I _f court. All the sentences shall run concurrently. / • l \ - The appeal is accordingly allowed. Pussu is on bail.

He is B directed to surrender in accordance with the terms of his bail and undergo the punishment iriipb'seci on him. P. B. R. Appeal allowed. . , y