State Of U.P vs Rashid & Anr

State of U.P. ... Appellant

Versus

Rashid and another ..Respondent

JUDGMENT

J.M. PANCHAL, J.

This appeal, by special leave, is directed

against judgment dated February 17, 2000, rendered by

the Division Bench of the High Court of Judicature at

Allahabad in Criminal Appeal No. 2541 of 1980, by

which judgment dated October 25, 1980, passed by the

learned IV Additional Sessions Judge, Meerut in

Sessions Trial No. 253 of 1980 convicting the

respondents under Section 302 read with Section 34 2 IPC and sentencing each of them to life imprisonment,

has been set aside.

2. The facts emerging from the record of the case are

as under:

Deceased Ishwar Singh belonged to village

Khalidpur, P.S. Mawana. The two respondents are real

brothers and they also belong to the same village. The

incident in question took place on March 22, 1980. In

the morning of the date of incident, Ishwar Singh was

returning home at about 6.15 A.M., after easing himself

in the fields situated on the east of the Rajbaha (canal

drainage), which runs from north to south and which is

located at a distance of about 200 yards from the Abadi

of village Khalidpur. For going to home he was required

to cross the Rajbaha which was then dry. When he was

climbing up western patri of Rajbaha through the

footpath, both the respondents were standing inside the

Rajbaha along the western strip and quite near to the

aforesaid footpath. The respondents had covered

themselves with Chadars and on sighting Ishwar Singh,

took out country made pistols, which they had wrapped 3 in Chadars and fired one shot each at Ishwar Singh.

Rishipal, Brijpal Singh, Karan Singh, Dhara Singh and

Jaghir Singh were also returning towards the Rajbaha

from the fields located on the east and witnessed the

incident. After having fired shots at Ishwar Singh, both

the respondents ran away. The aforementioned persons

chased the respondents but the respondents could not

be apprehended. Therefore, they returned to the spot

where Ishwar Singh was lying. They found him to be

bleeding and making utterances. A cot was then

brought from the village by Brijpal Singh and Ishwar

Singh was laid thereon. He was thereafter taken to the

village. Subsequently, Ishwar Singh was placed in a

trolly of a tractor belonging to one Harbir Singh and was

brought to Mawana. On way to Mawana, near the

crusher of Vijai Singh, Ishwar Singh succumbed to his

injuries. The tractor, therefore, was stopped and eye

witness Rishi Pal scribed a report of the occurrence.

Rishi Pal along with others carried the dead body of

Ishwar Singh in the same tractor to P.S. Mawana and

lodged FIR.

4

3. In view of the contents of FIR offences were

registered and investigation started. On

completion of investigation both the respondents

were charge-sheeted in the court of learned

Magistrate. As the offence punishable under

Section 302 IPC is exclusively triable by a court of

Sessions, the case was committed to the Sessions

Court, Meerut for trial. The learned Judge, to

whom the trial was made over, framed necessary

charge against the respondents. The charge was

read over and explained to them. However, they

pleaded not guilty to the same and claimed to be

tried. Therefore, the prosecution examined

several witnesses including eye witnesses and

produced documents in support of its case

against the respondents. After completion of

recording of evidence of prosecution witnesses

was over, the learned Judge explained to the

respondents the circumstances appearing against

them in the evidence of prosecution witnesses

and recorded their further statements as required 5 by Section 313 of the Code. In further

statements, the case of the respondents was that

of total denial.

4. On appreciation of evidence adduced by the

prosecution the learned Judge held that it was

proved by the prosecution that deceased Ishwar

Singh died a homicidal death. After appreciating

the evidence of eye witnesses, the learned Judge

concluded that their evidence was trust worthy

and should be acted upon. All the three eye

witnesses had deposed that the deceased was

fired at by the respondents. Therefore, after

accepting their evidence, the learned Judge of the

trial court convicted the respondents under

Section 302 read with Section 34 IPC and

sentenced each of them to life imprisonment.

5. Feeling aggrieved the respondents preferred

Criminal Appeal No. 2541 of 1980 in the High

Court of Judicature at Allahabad. The Division

Bench of the High Court has set aside the 6 conviction recorded by the trial court giving rise

to the instant appeal.

6. This Court had heard the learned counsel for the

parties at length and considered the documents

forming part of the appeal.

7. A bare glance at the impugned judgment with

reference to the evidence on record makes it

abundantly clear that the Division Bench of the

High Court has decided the appeal on inferences

and probabilities, ignoring the evidence on

record. After noticing injuries found on the body

of the deceased at the time of conducting

autopsy, the High Court has concluded on

surmises and inferences that the intestines of the

deceased were not found either perforated or

lacerated and sufficient time must have elapsed

before deceased succumbed to his injuries. The

High Court, after scrutiny of evidence of Medical

officer, who performed Autopsy on the dead body

of the deceased, has concluded that "The Medical 7 officer was of the opinion that these injuries were

caused after the deceased had fired himself after

defection". This Court has minutely and carefully

gone through the evidence adduced by Doctor

P.S. Khanna, who had performed autopsy on the

dead body of the deceased. This Court, after

perusal of his testimony, finds that the said

witness has nowhere stated or suggested that the

deceased had committed suicide. It was not the

case of the respondents at any stage of the trial

that the deceased had committed suicide. Thus,

the High Court has made out a totally new case

for the respondents, which is not permissible in

law. After observing that "no doubt the defence

has not suggested to the Medical Officer", the

High Court has, after considering the submission

made and evidence, proceeded to record a finding

that "it is apparent that in all probability, while

deceased was in the process of easing, he had

sustained, in the sitting posture, these injuries

on his person. This is the reason why right side 8 of peritoneum, right side of chest and right thigh

were involved. It is a case of single shot and the

entire prosecution version is belied by this

medical discrepancy." The above conclusion is

reached by the High Court, ignoring categorical

statement made by Dr. Khanna that "the said two

injuries caused to the deceased before death are

possible by two times firing even if the same have

been caused by one fire arm or by two separate

fire arms". The knowledge of medical and human

body is a matter of science. A court of law, who

has not acquired special knowledge and skill in

medical science, would not be justified in

brushing aside opinion of a medical officer, who

has performed post mortem of a dead body,

without any evidence on record to the contrary

supported by the opinion of learned authors of

standard text-books. The cursory manner in

which the medical evidence is appreciated by the

High Court can hardly be approved by this Court.

After making use of their medical knowledge, 9 what is asserted by the learned Judges of the

High Court in the impugned judgment is that if a

person is sitting and is in the process of easing,

any shot fired upon such person from his right

side would injure entire body, i.e., the chest, the

thigh and abdomen because those organs would

be in the close proximity of each other. Further,

the High Court has observed that "In the facts

and circumstances of the case, despite no cross-

examination of the Medical Officer, the above said

situation and its probability cannot be denied.

The submission made on behalf of the appellants,

therefore, has sufficient force." Having held that

the deceased sustained injuries while he was in

the sitting posture, the High Court proceeded to

record another finding that there would be

serious discrepancy so far as testimonies of the

eye witnesses about the manner of incident and

place of occurrence is concerned and their

presence at the time and place of incident would

become suspicious. In the light of this finding 10 the High Court assessed the evidence of eye

witnesses and came to the conclusion that they

had not witnessed the incident at all. Though it

was never pleaded by the defence that place of

incident was shifted by the prosecution the High

Court, by queer reasoning, has come to the

conclusion that the place of the incident was

changed and that the eye witnesses were not

stating the truth. The High Court has considered

other factors, namely, that the witnesses had

touched Ishwar Singh only after a cot was

brought at the scene of occurrence and none of

them had made any attempt to stop the flow of

blood nor any attempt was made at the house of

the deceased to stop the bleeding and held that

this shows that none of the eye witnesses was

present at the scene of offence. To say the least

the judgment impugned in the appeal is based on

surmises and inferences not warranted from the

proved facts of the case. The grievance made by

the learned counsel for the appellant State that 11 while appreciating the evidence adduced by the

parties, the High Court has reconstructed the

evidence and decided the appeal on surmises,

deserves serious consideration. The appreciation

of the evidence is not only faulty but is based on

misconception of the facts. In fact contentions of

fact and law have been left undecided and

conclusions arrived at are erroneous. Non-

consideration by the High Court, of the

statements made by the eye witnesses in their

sworn testimony recorded before the Trial Court

and drawing conclusions by considering

irrelevant factors, amounts to exercising

jurisdiction under Section 378 of the Code of

Criminal Procedure with material irregularity and

illegally. The High Court has acquitted the

respondents by ignoring the probative value of

FIR and reliable testimony of eye witnesses and

without considering material on record. The

judgment impugned is full of inconsistencies and

consists of faulty reasoning. Therefore, this 12 Court is of the firm opinion that the impugned

judgment will have to be set aside.

8. When the higher forum decides to set aside the

judgment it has two courses open. One is to first

consider the evidence adduced by the prosecution

as was done in the instant case by the trial court

and to render a finding in the appeal arising from

special leave scope of which is not the same as

envisaged under Section 378 of the Code. The

second option available to the higher forum is to

remit the matter to the first appellate court to

rehear the appeal on merits. As the scope of

proceedings under Article 136 of the Constitution

is limited, re-appreciation of evidence and

recording findings by this Court, as if it were

exercising powers under Section 378 of the Code,

would deprive one of the parties to prefer

statutory appeal before the first appellate court.

Such a course is not warranted in the facts of the

case. Therefore, this Court is of the opinion that

interest of justice would be served if the appeal is 13 remitted to the High Court for decision on merits

after hearing the learned counsel for the parties.

9. For the foregoing reasons, the judgment dated

February 17, 2000, rendered by the Division

Bench of the High Court of Judicature at

Allahabad in Criminal Appeal No. 2541 of 1980

acquitting the respondents, is hereby set aside.

The appeal is remitted to the High Court for

deciding the same afresh after taking into

consideration evidence on record and hearing the

parties. As the appeal is old one, this Court

requests the High Court to dispose of the appeal

as early as possible and preferably within three

months from the date of receipt of writ from this

Court. The appeal accordingly stands disposed

of.

..............................J. [B. Sudershan Reddy]

..............................J. 14 [J.M. Panchal]

New Delhi;

November 03, 2009.