REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
1 CRIMINAL APPEAL NO. 434 OF 2006
Shyam Babu .... Appellant(s)
Versus
State of U.P. .... Respondent(s)
2
J U D G M E N T
P.Sathasivam,J.
1) This appeal has been preferred against the final judgment and order
dated 13.01.2006 passed by the High Court of Judicature at Allahabad in
Government Appeal No. 159 of 1981 whereby the Division Bench of the High
Court allowed the appeal filed by the State and set aside the order of
acquittal of accused persons dated 08.09.1980 passed by the First
Additional Sessions Judge, Etawah in Sessions Trial No. 77 of 1979.
2) The facts and circumstances giving rise to this appeal are as under:
(a) Moolu Singh and Kunji were real brothers. Prayag Singh, Pahunchi Lal
and Lalta Prasad were sons of Moolu Singh. Badan Singh and Gaya Prasad
were sons of Kunji. Ratan Singh is the son of Prayag Singh and Nathu Ram
and Rajendra Singh were sons of Pahunchi Lal. Jaswant Singh was the son of
Badan Singh and Ujagar Singh was the son of Gaya Prasad.
(b) On 21.12.1978, at about 9.00 a.m. one Nathu Ram-the Complainant and
his father Pahunchi Lal were ploughing their field situated at Har Balapur
P.S. Bharthana. At that time, the Complainant’s uncle - Gaya Prasad along
with his son Ujagar Singh were sowing their field which was nearer to the
field of the Complainant. At some distance, his uncle - Prayag Singh along
with his son Ratan Singh were also ploughing their field.
(c) There was a water channel passing towards north of their fields and
Mahipal Singh-the accused was irrigating his field through that channel.
Since water was overflowing in the channel and entering into the sowed
field of the Complainant’s uncle-Gaya Prasad, he asked Mahipal Singh to
repair the same. On this issue, an altercation took place between Mahipal
Singh and Gaya Prasad. The accused Mahipal Singh left the place saying
that he would see him.
(d) In the meanwhile, Lalta Prasad, first cousin of Gaya Prasad and his
nephew Jaswant Singh also reached there. At about 11.00 a.m., Nathu Ram
and his father Pahunchi Lal resumed ploughing their field. At that time,
accused Mahipal Singh and his brothers Shyam Babu and Tej Ram armed with
guns, Indal having rifle and Bhabhooti with lathi along with their father
Ramjit with spear and Babu Ram – son of Bhabhooti with countrymade pistol
reached there. Mahipal Singh, standing near Gaya Prasad, told his
associates that he was behaving in an arrogant manner and asked them to
make an assault on him. Thereupon, Shyam Babu and Mahipal Singh fired at
Gaya Prasad with their respective guns thereby causing injuries to him. On
seeing this, Ujagar Singh– son of Gaya Prasad, rushed to save his father
and he also sustained pellet injuries by Tej Ram. At that time, Prayag
Singh, Pahunchi Lal, Lalta Prasad and Jaswant Singh rushed to the scene of
occurrence. Then Ramjit and Bhabhooti shouted that they should also be
killed and immediately Indal fired at Jaswant Singh and Prayag Singh using
rifle and Babu Ram and Mahipal Singh fired at Pahunchi Lal and Lalta Prasad
with country made pistol and gun respectively. All of them fell down in
the field of Badan Singh except Prayag Singh, who received injuries. On
hearing the hue and cry, Rajendra Singh brother of Nathu Ram and several
other persons rushed to the spot and challenged the accused persons. On
seeing them, all the accused persons fled away. Due to fatal injuries,
Ujagar Singh, Jaswant Singh, Gaya Prasad, Pahunchi Lal and Lalta Prasad
died on the spot and Prayag Singh received grievous injuries.
(e) On the same day, i.e., on 21.12.1978, an FIR was lodged by the
Complainant - Nathu Ram, son of Pahunchi Lal, at P.S. Bharthana, Etawah
against the above-mentioned 7 persons under Sections 147, 148, 149, 307 and
302 of the Indian Penal Code, 1860 (in short ‘the IPC’).
(f) On 06.03.1979, after filing of charge sheet, the case was committed
to the Court of Sessions and numbered as Sessions Trial No. 77 of 1979.
The First Additional Sessions Judge, Etawah, by judgment dated 08.09.1980,
acquitted all the 7 accused persons holding that the prosecution has failed
to prove beyond reasonable doubt the guilt of the accused persons in the
case against them.
(g) Being aggrieved, the State filed Government Appeal No. 159 of 1981
before the High Court. Pending appeal in the High Court, 4 accused
persons, viz., Ramjit, Mahipal Singh, Indal and Bhabhooti died due to
natural death and the case against them stood abated.
(h) On 13.01.2006, the High Court allowed the appeal filed by the State
and convicted the remaining 3 accused persons, viz., Shyam Babu, Babu Ram
and Tej Ram under Sections 148, 307 and 302 read with Section 149 of IPC
and sentenced them to undergo rigorous imprisonment under various heads
mentioned above including life sentence and all the sentences were to run
concurrently.
(i) Being aggrieved by the judgment of the High Court, the remaining 3
accused persons preferred an appeal before this Court under Section 379 of
the Code of Criminal Procedure, 1973 (in short ‘the Code’). During the
pendency of the appeal, 2 accused persons, viz., Tej Ram and Babu Ram died
and appeal against them stood abated and only one accused, Shyam Babu is
before this Court facing conviction and sentence.
3) Heard Mr. V.K. Shukla, learned counsel for the appellant-accused and
Mr. Ardhendumauli Kumar Prasad, learned counsel for the respondent-State.
Discussion
4) The incident relates to death of 5 persons and causing injury to 1
person. According to the prosecution, all the 5 persons were shot dead and
one person sustained injuries due to firing by the accused persons. It is
revealed from the post mortem reports and the evidence of the Doctor, who
conducted autopsy on the dead bodies that death was caused due to shock and
hemorrhage as a result of ante mortem injuries about one day ago.
5) On receipt of the complaint, the Investigating Officer rushed to the
spot and collected the blood stained clothes of all the 5 deceased and also
collected the samples of blood stained earth near the place where dead
bodies of all the 5 were lying and the same were sent to Forensic Science
Laboratory (FSL) for opinion which opined that the samples were found to be
containing human blood.
6) After filing of charge-sheet against all the accused, the prosecution
examined several witnesses. Among them, Nathu Ram (PW-1), Prayag Singh,
injured witness (PW-3) and Mukut Singh (PW-6) were the persons who actually
witnessed the occurrence. In other words, PWs-1, 3 and 6 are eye-witnesses
to the occurrence. The trial Judge, after noting certain discrepancies and
their relationship with the deceased persons, disbelieved their version
and, ultimately, acquitted all the accused persons. On the other hand, the
High Court, being the appellate Court, analysed all the materials, more
particularly, the evidence of eye witnesses, medical evidence, FSL Report
etc., and arrived at a categorical conclusion that the prosecution has
established the case against all the accused persons.
7) Inasmuch as 4 accused died during the pendency of the appeal before
the High Court, the High Court convicted the remaining 3 accused, namely,
Shyam Babu, Tej Ram and Babu Ram. Even during the pendency of the present
appeal, 2 accused persons died, namely, Tej Ram and Babu Ram and as on
date, we are concerned with only one accused, namely, Shyam Babu – the
present appellant.
Power of the High Court in an appeal against acquittal :
8) Mr. V.K. Shukla, learned counsel for the appellant, submitted that in
view of the acquittal of the accused persons by the trial Court, the High
Court was not justified in interfering with the decision of the trial Court
and modifying the acquittal into conviction.
9) It is true that it would not be possible for the appellate Court to
interfere with the order of acquittal passed by the trial Court without
rendering specific finding, namely, that the decision of the trial Court is
perverse or unreasonable resulting in miscarriage of justice. At the same
time, it cannot be denied that the appellate Court while entertaining an
appeal against the judgment of acquittal by the trial Court is entitled to
re-appreciate the evidence and come to an independent conclusion. We are
conscious of the fact that in doing so, the appellate Court should consider
every material on record and the reasons given by the trial Court in
support of its order of acquittal and should interfere only on being
satisfied that the view taken by the trial Court is perverse and
unreasonable resulting in miscarriage of justice. We also reiterate that
if two views are possible on a set of evidence, then the appellate Court
need not substitute its own view in preference to the view of the trial
Court which has recorded an order of acquittal.
Reasoning on merits
10) Keeping the above principles in mind, let us consider the evidence
led by the prosecution and the ultimate decision of the High Court. We
have already mentioned that Nathu Ram (PW-1), Prayag Singh (PW-3) and Mukut
Singh (PW-6) have appeared as eye-witnesses to the occurrence. PW-1, son
of deceased Pahunchi Lal, has categorically narrated all the facts of the
occurrence. According to him, at about 9 or 9.30 a.m., on the fateful day,
he and his father were ploughing the field of Badan Singh which they had
taken on ‘batai’ and his uncle Gaya Prasad and his son Ujagar Singh were
sowing crop in their field. He further deposed that his uncle Prayag Singh
and his son Ratan Singh were ploughing their field situated at a distance
of 40-50 footsteps from the field in which they were working. Mahipal
Singh was irrigating his field through water channel abutting the field of
Gaya Prasad and since the water was overflowing and entering into the filed
of Gaya Prasad, he asked Mahipal Singh to repair the same which resulted in
an altercation between them and, thereafter, Mahipal Singh went away saying
that he would teach him a lesson. By that time, Lalta Prasad and Jaswant
Singh also reached there and all of them were sitting in the field of Badan
Singh. He further narrated that at about 11 a.m., when he and his father
resumed ploughing their field, at that time, Shyam Babu (present appellant-
accused) and Tej Ram with guns, Indal with rifle and Bhabhooti with lathi
along with their father Ramjit with spear (ballam) and Babu Ram-son of
Bhabhooti with country made pistol reached there. Mahipal Singh pointing
at Gaya Prasad started shouting that he was speaking much and should be
killed and, immediately thereafter, Shyam Babu and Mahipal Singh fired at
Gaya Prasad using guns. When Ujagar Singh rushed towards his father to
rescue him, he also received pellet injuries by Tej Ram. He further stated
that immediately Pahunchi Lal, Prayag Singh, Lalta Prasad and Jaswant Singh
also rushed to the scene of occurrence and then Ramjit and Bhabhooti
shouted that they should also be killed. Thereafter, Indal and Babu Ram
fired at Jaswant Singh and Pahunchi Lal with their respective weapons. The
accused persons also fired at Lalta Prasad and Prayag Singh with their
weapons. Ramjit and Bhabhooti also gave blows to the injured with their
respective weapons. On sustaining fatal injuries, Pahunchi Lal, Ujagar
Singh, Lalta Prasad, Gaya Prasad and Jaswant Singh died on the spot and
Prayag Singh received firearm injuries at his back. He also stated that
thereafter at about 12.00 noon he went to the police station Bharthana,
Etawah situated at a distance of 8 miles from his village and made a
written complaint about the occurrence.
11) The other eye-witnesses relied on by the prosecution and accepted by
the High Court were Prayag Singh (PW-3) - injured person and Mukut Singh
(PW-6), who corroborated the entire statement of Nathu Ram (PW-1) in all
material aspects.
12) A perusal of the cross-examination of these three eye-witnesses
clearly shows that all of them were subjected to lengthy cross-examination
but as rightly observed by the High Court, nothing tangible could be
brought on record to impair their credibility. We were also taken through
their evidence. We fully concur with the conclusion arrived at by the High
Court and hold that the trial Judge committed an error in discarding the
testimony of all the three eye-witnesses doubting their presence at the
scene of occurrence.
Evidentiary value of related witnesses :
13) Mr. V.K. Shukla, learned counsel for the appellant submitted that
since most of the prosecution witnesses are related to the deceased
persons, the same cannot be relied on. We are unable to accept the said
contention.
14) This Court has repeatedly held that the version of an eye-witness
cannot be discarded by the Court merely on the ground that such eye-witness
happened to be a relative or friend of the deceased. It is also stated
that where the presence of the eye-witnesses is proved to be natural and
their statements are nothing but truthful disclosure of actual facts
leading to the occurrence, it will not be permissible for the Court to
discard the statement of such related or friendly witnesses. To put it
clear, there is no bar in law on examining family members or any other
person as witnesses. In fact, in cases involving family members of both
sides, it is a member of the family or a friend who comes to rescue the
injured. If the statement of witnesses, who are relatives or known to the
parties affected is credible, reliable, trustworthy and corroborated by
other witnesses, there would hardly be any reason for the court to reject
such evidence merely on the ground that the witness was a family member or
an interested witness or a person known to the affected party or friend
etc. These principles have been reiterated in Mano Dutt and Another vs.
State of Uttar Pradesh, (2012) 4 SCC 79 and Dayal Singh and Others vs.
State of Uttaranchal, 2012 (7) Scale 165.
15) In the case on hand, Nathu Ram (PW-1) is closely related to all the
deceased as he is the son of the deceased Pahunchi Lal and nephew of
deceased Lalta Prasad. It is also true that Prayag Singh (PW-3), the
injured witness, is the real brother of the deceased Pahunchi Lal and Lalta
Prasad. Mukut Singh (PW-6) has also admitted in his cross-examination that
he has some land in joint khata with the victims but their testimony cannot
be discarded on the ground of relationship alone as they appeared to be
honest and truthful witnesses and their testimony has not been impaired in
their cross-examination. We have already referred to the lengthy cross-
examination of all these persons and nothing has come out to impair their
credibility. We have also observed that among these three eye-witnesses,
PW-3 is an injured witness and his evidence stands on higher pedestal.
There is no reason to either disbelieve his version or his presence at the
place of occurrence. On the other hand, we agree with their statement and
hold that the High Court was justified on relying upon their evidence.
Only surviving accused – effect :
16) Finally, Mr. V.K. Shukla pointed out that inasmuch as the present
appellant alone is the remaining accused since out of 7, other 6 accused
persons died due to natural death, he may be exonerated from the conviction
and sentence. In view of the clinching evidence led by the prosecution, we
are unable to accept his submission. We should not forget that due to
gruesome incident, 5 persons lost their lives and one person sustained
injuries. It is also brought in evidence that Shyam Babu, appellant herein
and Tej Ram used guns and the third one Babu Ram used country made pistol
for the said diabolical act of shooting. It is undisputed fact that 5
persons died and 1 person sustained injuries by use of such weapons. Even
otherwise, the present appellant along with others was convicted by the
High Court under Sections 148, 307 & 302 read with Section 149 IPC, hence
he cannot be exonerated. Taking note of all these aspects and considering
the gruesome murders, there is no reason to exonerate the present sole
appellant-accused merely because the other co-accused died due to natural
death.
Delay in disposal of appeal
17) It was argued by the learned counsel for the appellant that
considering the fact that though the appeal was filed before the High Court
at Allahabad in the year 1981, the same was disposed of by the High Court
only on 13.01.2006, i.e., after a gap of 25 years and, the sole appellant
be discharged from the commission of offence on the ground of delay. We
are unable to accept the said contention. This Court, in a series of
decisions, held that the Limitation Act, 1963 does not apply to criminal
proceedings unless there is express and specific provision to that effect.
It is also settled law that a criminal offence is considered as a wrong
against the State and the Society even though it is committed against an
individual. After considering various decisions including the decision of
the Constitution Bench of this Court in Abdul Rehman Antulay vs. R.S.
Nayak, (1992) 1 SCC 225 and Kartar Singh vs. State of Punjab (1994) 3 SCC
569 and a decision rendered by seven learned Judges of this Court in P.
Ramachandra Rao vs. State of Karnataka (2002) 4 SCC 578, recently on
17.08.2012, a Bench of two Judges of this Court in Ranjan Dwivedi etc. vs.
C.B.I., Through the Director General (Writ Petition (Crl.) No. 200 of 2001)
rejected similar argument based on delay either at the stage of trial or
thereafter.
18) In the case on hand, merely because the High Court had taken nearly
25 years to dispose of the appeal, the present appellant cannot be
exonerated on the ground of delay. As stated earlier, it is not a case of
single murder but due to firing and gunshot, five persons died and one
injured. Accordingly, we reject the said contention.
19) In the light of the above discussion, we are unable to accept the
reasoning of the trial Court and submissions made by the learned counsel
for the appellant. On the other hand, we fully agree with the conclusion
arrived at by the High Court. Consequently, the appeal fails and the same
is dismissed.
………….…………………………J.
(P. SATHASIVAM)
………….…………………………J.
(DR. B.S.CHAUHAN)
NEW DELHI;
SEPTEMBER 7, 2012.
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