SURAJPAL SINGH AND OTHERS v. THE STATE
Citation: [1952] 1 S.C.R. 193; 1951 INSC 62
Court: Supreme Court of India
Bench: SIR SYED FAZL ALI , VIVIAN BOSE
Judgment date:
Case summary
1951 INSC 62. Supreme Court of India judgment dated 1951-12-20. SURAJPAL SINGH AND OTHERS v. THE STATE. Read the judgment and case details on LawSphereX.
Judgment text
S. C. R. SUPREME COURT REPORTS 193 (excluding the plaintiff's) for the aggregate sum due as above and, in default of ·payment, limiting the liabilities of each item of property to the sum rateably due on it under section 82. On the question of costs. The plaintiff repudiated section 82 in the course of the arguments before us and rested his case on section 43 of the Contract Act, nor did he clearly and unmistakably plead a case of sub- rogation in his plaint even in the alternative. The defendants, on the other hand, set up a case which ·has failed on the facts. I would, therefore, direct each side to bear its own costs in this appeal. As regards the costs incurred in the Courts below and any costs which may be necessitated by a ' further enquiry, they will be determined according to the final result of the litigation and with due regard to all matters bearing on the question of costs. FAZL ALI J. -I agree. Case remanded. Agent for the appellant : M. S. K.
Sastri Agent for the respondent: Ganpat Rai. SURAJPAL SINGH AND OTHERS ti. THE STATE [SAIYID FAZL ALI and VMAN BosE JJ. J Criminal Procedure Code (Act V of 1898), s. 417-Appeal again. rt acquittal-lnterfert:nce-Guiding principle. It is well' settled that in an appeal under s. 417 of the Criminal Procedure Code, the High Court has full power to review ·the evidence upon which the order of· acquittal was foonded. But it is equally well settled that the presumption of innocence of the accused is further reinforced by his acquittal by the trial Court and' the findings of the trial 'Court which had the aqvantagc of seeing the witnesses and hearing their evidence can be reversed only foc very substantial and compelling reasons • .. 1951 K1d'ar Lall ! it! tlt 11t1ti Another v. Hari Lall Si! al Bose I 19$1 Dec. 2(,, ! 951 Surajpal Singh 11nd Others v. The State. Faz/ Ali /. 194 S_(JPREME COURT REPORTS [1952] CRIMINAL APPELLATE JuRisDJCTION : Criminal Appeal No. 16 of 1950.
Appeal by special leave from the judgment . and order dated 8th May, 1947, of the High Court of Judicature at Allahabad (Sankar Saran and Akbar Hussain JJ. ) in Criminal Appeal No. 80 of 1946. S. P. Sinha (G. C. Mathur, with him), for the appel- lant. • K. B. Asthana, for the respondent. 1951. December 20. The Judgment of the Court was delivered by FAZL Au. J. -This is_an appeal against a judgment of the High Court of Judicature at Allahabad revers- ing the decision of the Sessions Judge of Aligarh in a criminal case. The appellants were tried by ·the Sessions Judge on charges under section 302 read with section 149, section 148, sections 325 and 326 read with section 149, and section 201 of the Indian Penal Code, but were acquitted.
On appeal by the State Government, the High Court ,reversed the Sessions Judge's decision, and convicted the appellants and sentenced them to transportation for life under section 302 read with section 149, to five yeart' rigorous im- prisonment under sections 325 and 326 read with section 149, and to two years', rigorous imprisonment under section 147 of the Indian Penal Code, all the sentences being made to run concurrently. The appellants there- after applied to the Privy Council for special leave, which was granted on the 28th October, 1947. The facts which were put before the court on behalf of the prosecution may be briefly stated as follows. There is a plot No. 518 in Nagaria Patti Chaharum, village Shahgarh in the district of Aligarh which is about 30 bighas in area and is known as the "teesa" field. This plot was the "sir" land of several landlords including Mst. Bhagwati Kuer and Ratan Singh and had been let out to certain tenants. In 1944, Mst.
Bhagwati Kuer, Ratan Singh and their co-sharers filed a suit for the ejectment of the tenants, and the • - .. ,· J ' . S. C. R. &,UPREME COURT REPORTS 195 suit was decreed. On the 7th June, 1945, possession over the plot was delivered by the A. min to Surajpal Singh, the first appellant, who was the mukhtar-i-A. m of Mst. Bhagwati Kuer. . It was contended on behalf of Surajpal Singh that he took possession on behalf of all the co--sharers, but certain statements made by Rattan Singh in his evidence do not support this con- tention. However that may be, it appears that 'on the 17th June, 1945, Ratan Singh reported to the police that he had sent his labourers to irrigate the "teesa" field, and while they were irrigating it Surajpal Singh and certain other persons came and · tried to stop the irrigation . and damaged the ploughs of Ratan Singh. On the 18th June, at about 7 A. M. , the occurrence which is the subject-matter of the present trial took place.
The prosecution version of the occurrence was that while Ratan Singh's labourers were working in the field under the supervision of one Behari Singh, the appel- lants with many other persons came armed with guns, spears and lathis, and some of the members of the appelhmts' party entered the field, cut off the nose- strings of the bullocks and abused and assaulted the labourers, most of whom ran away. Thereupon, Deva Sukh, who was there to supply water to the labourers, protested and was beaten with lathis. At that point of time, Behari Singh and 10 to 15 persons ·tame and a fight took! place between the parties. During the fight, one · of the accused persons, Rajendra Singh, a young lad, fired his gun twice in the air, and there- after Surajpal Singh took the gun from him and fired two shots hitting Nawab Mewati, who . died instant- aneously, and Behari Singh, who died later in the day. Three other persons, Zorawar, Rajpal and Lakhan also received gun-shot injuries.
Sometime later, Surajpal Singh along with . the other three appellants came to the spot and removed the dead body of Nawab in a cart. The body was thrown into a river and was re- covered on the 20th June, 1945. After investigation 25 persons including the appellants were sent up for trial. After hearing the evidence in the case, the Sessions Judge delivered judgment on the 20th February, 1946, .. 1951 Suraipal Singh . and Others v. The State. Faz/ Ali f. 1951 Suraipal Singh and Other• v. The State. Fazl Ali/. 196 SUPREME COURT REPORTS [1952} He held that the "teesa" field was in the possession of Surajpal Singh, that Behari Singh and Ratan Singh's men were aggressors and wished to take forcible pos- session of the field, that when resisted they had at- tacked the appellants' party, that the person who fired the gun had done so in self-defence and not with a view to killing Behari Singh and Nawab Mewati, and.
that the evidence adduced by the prosecution was so unsatisfactory that it was unsafe to convict the accus- ed upon it. As to the charge of concealing evidence of the offence of murder by the removal of the dead body of Nawab, the Sessions Judge expressed the opinion that in order to convict a pe(son on that charge it must be proved that· the offence, the evidence of which the accused is alleged to have caused to disappear, had actually been committed, but since in the present case the charge of murder was not proved the accused could not be convicted for having caused disappearance of evidence connected with it. The Judge also held that the evidence being unreliable th and 0 ther. t v; The State~ Falll Ali f. ' 1951 Surajpal Singh and Others v. The State. Fazl Ali /.
198 SUPREME COURT REPORTS [19521 that Deva Sukh had received injuries in the course of the alleged occurrence was false and his inj~rics "were made up so as to create evidence of pnvate defence" to be be utilized by the prosecution to meet the charge of having caused injuries to the members of the appellants' party. It has been established that at least four persons on the side of the accused had received injuries. Mahindarpal had received no less than 16 injuries, and his condition . was serious for some time. Karan s;ngh had 12 injuries, one of which was grievous. Hari Singh ·had received 7 injuries including a grievous injury, and Nikka Singh also was injured, his injury having been noticed by the investi- gating sub-inspector. Tn the prosecution evidence, it was stated that many of the accused persons were armed with lathis and had used them, and it would be strange if it was not pro- ved that any of the persons on their side had any injuries attributable to lathis.
It has been established that the four injured persons of Ratan Singh's party, viz. , Rajpal Singh, Lakhan Singh, Behari Singh and Zorawar _Singh, had only gun-shot wounds. A seriou• question which arises in this case is at what stage the gun was used, and whether it was used in self-defence after the . members of the appellants' party were as- saulted with lathis or it was used before they were as- saulted. The prosecution witnesses had to admit that at first a gun was fired twice in the air dnd then the actual "firing took place. This version of the firing lends support to the defence story that the gun was fired in self-defence when Ratan Singh's men attacked members of the accused's party.
The Sessions Judge has expressed the view that in order to meet the defence case the prosecution introduced the story of Deva Sukh having been assaulted with a lathi in the first instance so as to make the appellants' party the aggressors, it being the prosecution case that Behari Singh and his men had used lathis in order to defend themselves. In order to resolve the conflict ill the cases of the parties and to get at the true picture, the .... ,_ ,( 1 I \ S. C. R. •SUPREME COURT REPORTS 199 1951. Sessions Judge went very minutely into the question as to whether there was trustworth} evidence about Surajpal Singh Deva Sukh having received any injury at all in the and O,thers occurrence. It seems to us ~h\lt there is . a formidable The vState. array of - circumstances to support the- conclusion ulti- mately reached by the Sessions Judge. It appears that Faz! Ali 1. in the fir~t information report there is no reference to Deva Sukh or to the. injuries said to have been received by him.
The Sessions Judge has pointed out that there was a considerable interval of· time between the occur- rence and the lodging of the -first infoonation report, and therefore . it is surprising that the most important incident of the occurrence and the name of the most important witness was omitted in the report. Again, no reference was made to Deva Sukh. or to his injuries in the dying declaration of Behari Singh which was recorded by one Dr. Shankar Deo, and also in that of Lakhan Singh. The Sessions Judge . has further pointed out that the prosecution witnesses, Chokha, Prempal, Cheta and Gangola Singh, who were examined by the investigating officer on the 18th June, did not also -refer to Deva Sukh. The investigating sub-inspector was informed of . the injuries on Deva Sukh and hi~ presence at the time of the occurrence for the first time on the 19th June, 1945, and Deva Suk.
h's explanation for not appe,aring before him·· at the earliest opportunity was that he was frightened and had concealed himself in his house for about two days and had directed his relations not to inform the police of his presence. He also stated that' on his arrival in his house after the occurrence he did not inform his relations of what had happened. Some of these matters might have been overlooked if there had been convincing evidence about his having actually received injuries, but ws are' satisfied that such evi- dence as is before us is extremely unsatisfactory and suspicious and we entertain grave doubts as to whether Deva Sukh received any injuries at all. Dr. Shanker Deo, who examined Deva Sukh, is a retired Sub-Assistant Surgeon pract1smg in Kauiraganj, which is not far from village Shahgarh. • 1951 Surajpal Singh and Others v. The State. Faz/ Ali /.
200 SUPREME COURT REPORTS [1952] He admits that he had known Ratan Singh since his childhood, and when he was a child he used to be taught at the house of Ratan Singh by a teacher em- ployed by Ratan Singh' s uncle. He has stated that Deva Sukh had two bruises across the back of the middle of the left forearm, and one of them was grievous since the left ulna was fractured. He further says that at the time of examination he did charge fees from Deva Sukh, that he was brought to him three days after the other injured persons, that when the latter group of persons came to him none of them told him that there was one more injured person to be examined, and that Deva Sukh was brought to him by Ratan Singh's servant.
There are unsatisfactory features in the evidence of this doctor relating to other matters which need not be referred to, but what is somewhat remarkable is that though there is a Dis- trict Board Hospital at Jalali about four miles · from Kauirganj, Deva Sukh did not obtain an injury certi- ficate from the doctor in charge of that hospital. Deva Sukh says that he did go to that hospital to have his injuries attended to, but there is no evidence to corro- borate this. These facts as well as a number of other facts relied upon by the Sessions Judge do go to support his theory, and once it is held that the pro- secution has to rely on fabricated evidence, it throws doubts on the entire case. From the record, it appears that Surajpal Singh was the person who had been taking an active interest in the ejectment suit, and he was admittedly spending money.
Ratan Singh says that he had also paid money to Surajpal Singh towards the expenditure, but this is not probable because he and Surajpal ·had been on bad terms. It is admitted that Surajpal is the person to whom, the Amin gave possession of the land, but in spite of this fact, Ratan Singh's men started opera- tions on the land ignoring Bhagwati Kuer, which Ratan Singh had no right to do; even assuming that the land was joint property. If Behari Singh and the other men sent by Ratan Singh were trying to take exclusive possession of the land and had started . -· S. C. R. SUPREME COURT REPORTS 201 6perations thereon, Surajpal Singh had every right to protest, and if his men were beaten first, of which there are strong indications in the case, he was entitled to repel the attack in exercise of the right of private defence. That Ratan Singh had made ample pre- parations through Behari Singh is quite clear. Admittedly, there were a number of. per.
sons armed with lathis present at the scene on his behalf including outsiders like Nawab Mewati, who is said to have been a well-known fighter, Zorawar and others. As regards ~he remaining two witnesses, to whom the High Court has made reference, viz. , Rori Singh and Pransukh, it seems to us that the "High Couri: has overlooked the comments made by the Sessions Judge upon their evidence, some of which are of consider- able force. What has impressed us 1s tltat they were not · independent witnesses and ~ere, not mentioned in the first information report as witnesses to the occurrence, and they were examined by the sub- inspector as late as the 20th and 21st June, . 1945. After reading the two judgments, we see no reason why the opinion of the Sessions Judge regarding these witnesses should not receive the weight which should normally be attached to that of the ,trial court.
It is well-established that in an appeal under sec- tion 417 of the Criminal Procedure Codel tlte High Court has full power to review the evidence upon which tlte order of acquittal was founded, but it is equally well-settled that the presumption of innocence of the accused is hlrther reinforced by his acquittal by the trial court, and the findings of the trial court which had the advantage of seeing the witn~sses and hearing their evidence can be reversed only for very substantia. 1 and compelling reasons. On the whole, we are inclined to hold that the Sessions Judge had taken a reasonable view of the facts of the case, and in our opinion there were no good reasons for reversing that view. The assessors with whose aid the trial was held, were unanimously of the opinion that the accused were not guilty, and ' 1951 Surajpal Singh . and Others v. The State. Fazl Ali f. 1951 Sur11ipal Singh and Others v. The State. Faz/ Ali /. 1951 D•v:. 14.
202 SUPREME CQURT REPORTS [19521 though 25 persons were placed on trial on identical evidence, the State Government preferred an appeal only against 5 of them on the sole ground that the acquittal was against the weight of evidence on the record. In the result, we allow the viction and sentences of the them of all the charges. appeal, set aside the con- appellants and acquit Appeal allowed. Agent for the appellant: P. K. Chatterjee Agent for the respondent: I. N. Shroff for P. K. Bose. BIJJOY CHAID POTRA v. THE STATE [SAIYID FAZL Au and VrvIAN BosE JJ. ] Criminal Procedure Code (Act V of 1898), ss. 237, 342-lndian Penal Code (XLV of 1860), ss. 307, 326-Charge undei· '· 307- Conviction under s. 326-Legalt"ty-Failure to examine accused fully -When vitiates trial-Necessity of prejudice to accused. The appellant who inflicted serious injuries on another was charged under s. 307 of the Indian Penal Code but the jury returned a verdict of guilty against him under s.
326 of the Penal Code, and the Sessions Judge, accepting the verdict, convicted hiin under s. 326. It was contended that the conviction was illegal inasmuch as the offence under s. 326 was not a minor offence with reference to the offence under s. 307. Held, that as ~ it was open to the Sessions Judge, on the facts of the case, to charge the appellant alternatively under ss. 307 and 326 of the Code the case was covered by s. 237 of the Criminal Procedure Code, and the co)lviction under s. 326 of the Penal Code was pro. per, even though there was no charge under the section. Begu v. King Emperor (52 I. A. 191) applied. In order that a conviction may be set aside for non-compliance with the provisions of s. 342 of the Criminal Procedure Code, it is not sufficient fur the accused merely to show that he was not fully examined as required by the section, but he must also show that such examination has materially ·prejudiced him. ..
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