Rajesh Singh & Ors vs State Of U.P

Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1160 OF 2005

Rajesh Singh & Ors. ... Appellants

Versus

State of U.P. ... Respondent

J U D G M E N T

V.S. SIRPURKAR, J.

1. The judgment passed by the High Court allowing the appeal against

acquittal and convicting the appellant for the offence under Section 302

read with Section 34, IPC is in challenge in this appeal.

2. The three appellants, Rajesh Singh (accused No.1), Najai Srivastav

(accused No.2) and Mohan Singh (accused No.3) came to be tried by the

trial Court on the allegation that they had committed murder of a young boy

Deepak on 11.4.1993 in the evening at about 5 O'Clock. Deceased

Deepak was the son of Virendra Kumar (PW-1). Virendra Kumar (PW-1)

was a lawyer's clerk. When he and his brother S.K. Srivastav, an

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advocate, were going for having `paan' at the paan shop near Pico centre

belonging to accused No.1, Rajesh, they saw that the three accused

persons were beating Deepak. Deepak was made to take the posture like

a cock (murga) and two bricks were kept on his back. Rajesh was hitting

him with those bricks and the hands and feet of the boy had been tied and

accused Najai was hitting him with a can. When Virendra Kumar (PW-1)

asked as to why his son was being beaten, it was told that Deepak had

stolen some money. Virendra Kumar (PW-1) requested the accused

persons to let the child go as they had already beaten him severely.

However, Rajesh refused to leave him and threatened that if he does not

go he would also be assaulted. This incident was seen by some others

also. On this Virendra Kumar (PW-1) said that he would inform the police

but waited. All the three accused persons dragged Deepak to house

No.128/21, C-Block, Kidwai Nagar, Kanpur which was the house of

accused No.3, Mohan Singh. They confined him inside and shut the door.

Virendra Kumar (PW-1) and others kept on shouting from outside. After

about half an hour, the three accused persons ran away. When Virendra

Kumar (PW-1) and others went inside they saw that the boy was hung with

a hook in the ceiling. His feet were dangling at the height of 4-5 feet from

the floor and he was dead. Virendra Kumar (PW-1) then informed the

police by lodging an FIR.

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3. The investigation was taken up by Chandra Shekhar Yadav (PW-4).

He reached the spot, did the necessary formalities and sent the body for

autopsy. As many as five ante-mortem injuries were found on the dead

body during the post-mortem which was conducted by Dr. Jugal Kishore

Sharma (PW-3). These injuries were in the nature of large abraded

contusions. On internal examination his hyoid bone was found fractured.

As per the opinion expressed, the boy died due to asphyxia as a result of

throttling. After the investigation, charge sheet was filed. The prosecution

examined Virendra Kumar (PW-1), Shyam Ji Pandey (PW-2) as eye-

witnesses while Dr. Jugal Kishre Sharma who had conducted autopsy on

the dead body of deceased was examined as PW-3. In addition to this,

police witnesses were also examined. The accused abjured the guilt. The

trial Court, however, acquitted the accused persons dis-believing the eye

witnesses and held that their presence was doubtful. He also held that the

conduct of Virendra Kumar (PW-1) was unnatural. The trial Court also

observed that the prosecution had failed to examine S.K. Srivastav

advocate, another eye witness.

4. The State filed an appeal against this judgment and the High Court

allowed the appeal convicting the three accused persons of the offence

under Section 302 read with Section 34, IPC. That is how the appeal has

come before us.

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5. It was vehemently argued by Shri Sanjay Jain, learned counsel for

the appellants that this was a case where the medical evidence was

contradictory with the evidence of eye witnesses. He also pointed out that

the trial Court had given sound reasons and the High Court had not

exercised the caution while upsetting the finding of acquittal handed out by

the trial Court. The learned counsel also urged that it not was found that

the judgment of the trial Court was perverse and the inferences were not

possible at all. The appellate Court could not have upset the judgment and

convicted the accused persons. We were also taken through the evidence

of the witnesses which was severely criticized by the learned counsel.

Lastly, the learned counsel claimed that all the accused persons could not

be held guilty, particularly, when it was not certain as to which accused

had caused the murder by throttling deceased Deepak.

6. As regards this, the learned Senior Counsel appearing on behalf of

the State supported the judgment passed by the High Court and pointed

out that this was the most foul murder and the reasoning given by the trial

Court was extremely perverse. Shri R.K. Dash, learned Senior Counsel

pointed out by reference to the judgment of the trial Court that the trial

Court was extremely casual in appreciating the evidence and had rejected

the important evidence of the eye witnesses for no reasons.

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7. On this backdrop, it is to be seen whether the appellate Court was

right in convicting the accused persons. There can be no dispute about

the principles which are now more or less settled while dealing with the

judgment of acquittal. There can be no dispute with the proposition argued

by Shri Jain that unless the reasoning by the trial Court is found to be

perverse, the acquittal cannot be upset. There can also be no dispute of

the other proposition argued by Shri Jain that where two views are

possible even then the judgment of acquittal should not be upset in the

sense that the Court while dealing with the judgment of acquittal must see

as to whether the trial Court has taken a possible view.

8. It is a well settled position now and we reiterate the same that while

upsetting the judgment of acquittal, the appellate Court must show the

perversity in the judgment of the trial Court and the appellate Court's

judgment must show that the Court was alive to the fact that it was dealing

with the judgment of acquittal and further the appellate Court also must

record the finding that the view taken by the trial Court was not possible in

law at all.

9. Testing the judgment from these angles, it has to be said that the

appellate Court's judgment very clearly records a finding that the acquittal

recorded by the trial Court was based on flimsy grounds and was wholly

unjustified. The High Court has also considered the benefit of doubt

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awarded by the trial Court and has observed that it should not become a

fetish. The High Court has also given very good reasons to set aside the

findings arrived at by the trial Court.

10. The first such finding by the trial Court was that the FIR was ante-

timed on the ground that as per the evidence of Chandra Shekhar Yadav

(PW-4), the investigating officer, the dead body of deceased Deepak was

dispatched from the spot after being sealed at 9 p.m. for the police lines.

However, in the record of the police lines, it was shown to have received at

10 a.m. on 12.4.1993. The FIR was also criticized by the trial Court and

the defence counsel here on the ground that there was no evidence

offered by the prosecution to suggest that the special report of the crime

was sent to the higher authorities. The High Court has found that this

criticism was not justified. The High Court has given the reasoning that the

FIR was lodged by the witness Virendra Kumar (PW-1) on 11.4.93 itself at

6.40 p.m. Thus, if the incident happened at about 5 O'Clock in the

evening, the recording of the FIR at 6.40 p.m. in a police station which was

8 Kms. away from the spot of occurrence could not be said to be late

reporting. The High Court has also relied upon the evidence of Chandra

Shekhar Yadav (PW-4) that the FIR had been lodged in the police station

when he was not present there and he was informed about it only on

wireless and, therefore, he happened to reach the spot directly with ASI

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and started the investigation of the case and was busy there in drawing of

Panchnama etc. right up to 11 p.m. and merely because the copy of FIR

was received in the office of the circular officer on 13.4.1993, it should not

lead to the conclusion that the FIR was ante-timed. The High Court has

also found that if the dead body reached the police lines late at mid night

and if it was shown in the record that it was received at 10 a.m. on 12.4.93,

there was nothing significantly doubtful. We have also gone through the

record as well as the evidence of the investigating officer Chandra Shekhar

Yadav (PW-4) and though the timing is slightly irregular, that alone would

not be sufficient to reach a conclusion that the FIR was ante-timed. After

all nothing was going to be gained by the prosecution by ante-timing the

FIR. Had the FIR been ante-timed, the Panchnama could not have been

commenced at 7.30 p.m. We do not find any significant cross examination

of the Panchas and the police officers, particularly, on the aspect of timing

thereof. We do not find this circumstance to be of such a nature so as to

throw the whole prosecution story which was proved by two eye witnesses,

one of them being the father of the boy.

11. The learned counsel severely criticized the evidence of Virendra

Kumar (PW-1) on the ground that the behaviour of Virendra Kumar (PW-1)

was extremely unnatural and that his presence on the spot was extremely

doubtful. We have seen the evidence of Virendra Kumar (PW-1) very

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closely. We have also seen the reasons given by the trial Court for

rejecting his evidence. According to this witness, he and his brother S.K.

Srivastav had gone near Rajesh Pico Centre to have paan. That pico

centre was in the house of 128/22, C-Block, Kidwai Nagar, Kanpur.

According to this witness, he saw crowd in front of the Rajesh Pico centre

and saw that three accused beating his 11 year old son. He was made to

take posture of a cock (murga) and he was being hit by accused Najai with

a can. While Rajesh was pressing bricks and Mohan was slapping his son

which he did twice. On being asked, the accused Rajesh replied that

Deepak had stolen his money and even after requests by the witness,

Deepak was not being released and, therefore, Virendra Kumar (PW-1)

made hue and cry that the would inform the police. This incident was seen

by Brij Bhan Singh, Shyam Ji Pandey and Dinesh Kumar also. However, in

their presence, the accused persons dragged Deepak inside the nearby

house at 128/22, C-Block, Kidwai Nagar, Kanpur and shut the outside

door. It was after about half an hour that the accused persons opened the

door and the three accused persons fled away towards a square known as

Chalis Dookan Chauraha. When the witnesses entered the room, they

found Deepak was hanging with the rope and was dead. His legs were

dangling at 4-5 feet above the floor. It was on this basis that the First

Information Report was given in their hand writing after it was prepared.

The trial Court then noted the topography of the area as also the houses of

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the witnesses. Thereafter, the trial Court observed that there were 3-4

paan shops including one Pandit Ji's Paan shop. The trial Court also

noted that the witness did not have paan at Pandit Ji's Paan shop and

proceeded towards the paan shop which was near the shop of the accused

Rajesh. The trial Court also noted that there were about 100-150 persons

gathered when the door was shut by the accused persons and that when

the accused persons escaped by opening the door nobody tried to catch

them. He also noted that this witness had taken the name of Shyam Ji

Pandey to be present in the crowd. While considering the evidence of this

witness, who was an eye witness and father of the unfortunate boy, the

trial Court held that Virendra Kumar (PW-1) and Dinesh Kumar who were

the clerks of the advocate as also SK Srivastav the brother of Virendra

Kumar (PW-1) and Shyam Ji Pandey who himself was an advocate were

residents of different places. The trial Court then observed:

"the presence of many advocates and clerks is natural

in the court but the presence of these four at the spot of

occurrence on a holiday does not seem more probable."

The trial Court then further observed:

"the betel shop of Pandit Ji is situated near the house of

witness Virendra Kumar (PW-1) before Pico centre but

witness did not eat the betel on the aforesaid shop but came

to eat betel near Pico centre where the incident was

happening. These circumstances make the presence of this

witness on the spot of occurrence at the time of incident

doubtful and this witness appears to be a chance witness."

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12. It is on the basis of this that the trial Court has dis-believed the

evidence of Virendra Kumar (PW-1). We do not find any other reason

having been given to dis-believe his evidence. That we are surprised by

this finding would be an understatement. There was nothing unnatural for

the witness to choose his Paan shop and merely because he did not go to

the nearest Paan shop, no fault could be found with the witness. Further, it

has come in the evidence that the residence of Virendra Kumar (PW-1) is

hardly 300-350 steps away from the Pico centre where the incident was

happening, therefore, to call this witness a chance witness is a perversity.

The High Court has noted this perversity and has adversely commented on

the finding reached by the trial Court. The other reason given by the trial

Court was that one Shyam Ji Pandey was present at the time of writing the

FIR and his name was bound to have been mentioned in the FIR, but it did

not mention the name of Shyam Ji Pandey and, therefore, Shyam Ji

Pandey also appeared to be a chance witness. As regards Shyam Ji

Pandey, the Sessions Judge said that his claim that he saw the incident

when he was going to fetch ice near the Pico centre was obviously false

and the trial Court has mentioned "according to this witness, normally he

drinks fresh water of hand pipe. The incident is of 11th April at 5 p.m. At

that time it is not hot worth drinking cold water especially when the witness

used to drink hand pipe water daily."

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13. Again, this reason for rejecting the evidence of Shyam Ji Pandey, to

say the least, is perverse. There is no law saying that merely because one

is used to drink water from hand pipe, he should not purchase ice. The

High Court has found this reasoning in respect of Shyam Ji Pandey to be

perverse. Again the Sessions Judge found that Shyam Ji Pandey who

was present was not mentioned in the FIR. It was bound to be realized

that Virendra Kumar (PW-1), the author of the FIR had seen his own son

being killed by three bullies of the locality. It has also come in the

evidence that accused No.1, Rajesh was already facing a murder case and

was on bail. Under these circumstances, to expect each and every detail

including the names of the witnesses, would be totally unnatural when both

these witnesses faced their cross examination extremely well. There was

nothing brought in their cross examination which could falsify their claim of

having seen the ghastly incident.

14. It is true that the others like the brother of Virendra Kumar (PW-1)

did not step into the witness box but that by itself will not make the

evidence of two witnesses suspect in any manner. The witness was

candid enough to say that he did not have any enmity with accused Mohan

and he had heard that he was being tried under Section 302, Indian Penal

Code. He was also candid enough to say that accused Mohan and

accused Najai had not raised any accusation against deceased Deepak

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that he had stolen their belongings. It has come in his cross examination

that when he was requesting the accused persons to spare his son, Brij

Bhan Singh, Shyam Ji Pandey and Dinesh reached there on hearing the

shouts thereby the presence of Shyam Ji Pandey was thoroughly

established by him in his cross examination itself. In his cross examination,

he gave a graphic description of what each accused was doing while

beating Deepak. The tenor of his evidence was natural and even after

closely examining the evidence we also feel like the High Court that the

Sessions Judge was in error in rejecting the evidence on flimsy grounds.

Same is true of the evidence of Shyam Ji Pandey and excepting that

Shyam Ji Pandey was not expected to purchase ice and for that purpose

come out on the spot, nothing has been found inconsistent with the

evidence of Virendra Kumar (PW-1). Shyam Ji Pandey is a literate

witness. He is MA LLB and had practiced law for two years. He also

claimed that he knew and recognized the three accused persons. He had

given a correct and graphic picture of what happened. Much of his cross

examination was on the fringes without confronting him with any

inconsistencies. It was really a matter of importance that there are no

prevarications or inter se contradictions in the evidence of these witnesses.

He has also given the correct picture of what each accused was doing.

After seeing the whole evidence, we are convinced that the approach of

the Sessions Judge, while appreciating the evidence of these two eye

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witnesses was extremely perverse. The trial Court has also found fault

with the fact that none of the witnesses tried to stop the accused persons

when they fled. That is hardly any reason to dis-believe the prosecution

case. One of the accused persons was already facing a murder case.

The witness Virendra Kumar (PW-1) has also spoken about that. It should

be seen that the accused were viewed as bullies and, therefore, nobody

might have tried to apprehend them.

15. Further the trial Court has found fault with the fact that the other

witnesses like Shiv Kumar was not examined. That would be hardly a

circumstance in favour of the defence, particularly, when the two other

witnesses were offered. It is not the quantity but the quality of the

evidence which matters.

16. The Sessions Judge did not take into consideration the evidence of

the doctor who wholeheartedly supported the prosecution case. It is

obvious from the post-mortem report that there were ante-mortem injuries.

There were 10 abraded contusions on both sides of neck in front and just

below chin. The injuries described were also serious injuries for an 11

year old child. His hyoid bone was also found fractured. Therefore, the

fact that Deepak's death was homicidal death was obvious. He had

suffered the contusion on the back of left side below scapula and

contusion on back of legs below knee etc. which were in perfect unison

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with the evidence of the two eye witnesses. The High Court has taken

note of the medical evidence in a correct manner. At least the injuries of

the deceased read with the evidence by the eye witnesses should have put

the trial Court on guard. We must say that the trial Court had acquitted the

accused persons in a very casual manner.

17. The most important circumstance in this case is the finding of the

dead body in the house of one of the accused persons. Surely, the dead

body could not have walked inside the house of the accused person.

There was absolutely no explanation from the accused persons, more

particularly, accused Rajesh as to how the body was found in a hanging

position in the house of one of the accused. All the witnesses are

unanimous on the point that all the three accused persons went inside the

house dragging Deepak with them. This important circumstance was

completely lost sight of by the trial Court. That also can be said to be a

perversity on the part of the trial Court.

18. As regards the argument of learned counsel for the defence that it

was not certain as to which accused actually caused the murder and,

therefore, all the three accused persons were bound to be given the

benefit of doubt, it has to be said that the argument is without any

substance. It is clear that all the three accused persons had taken part in

the beating of deceased Deepak and all the accused persons dragged him

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in the room and closed the door. Therefore, it was up to the accused

persons to explain as to how Deepak died. It is very clear that all the three

accused persons had acted with common intention of causing the death

and, therefore, all the three accused persons would be guilty with the aid of

Section 34, IPC. The High Court has rightly held them guilty.

19. In short, after examining the evidence closely, we are of the firm

opinion that the acquittal in this case was completely out of the question.

The reasoning given by the trial Court was wholly unacceptable and can

safely be called perverse. The High Court having noted these defects in

the judgment of the trial Court and the casual approach of the trial Court

was justified in reversing the acquittal. In our opinion, the appeal has no

merits and must be dismissed. It is accordingly dismissed.

......................................J.

[V.S. SIRPURKAR]

.......................................J.

[T.S. THAKUR]

New Delhi;

March 28, 2011.

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Digital Proforma

1. Case No. : Criminal Appeal No.1160 of 2005

2. Cause title : Rajesh Singh & Ors.

Vs.

State of U.P.

3. Judgment heard by : Hon'ble Mr. Justice V.S. Sirpurkar

Hon'ble Mr. Justice T.S. Thakur

4. Judgment reserved by : Hon'ble Mr. Justice V.S. Sirpurkar

5. Date of C.A.V. : 15.3.2011

6. Date of pronouncement of

Judgment : 28.3.2011

7. Nature of Judgment : Reportable