Surendra Pal & Ors vs State Of U.P. & Anr

dismissed the appeal preferred by the appellants and

thereby maintaining the conviction of the appellants

under Section 302 of the Indian Penal Code (for short 2

`IPC') with modification of sentence of death by

substituting it to imprisonment for life. The conviction

and sentences awarded by the learned Additional

Sessions Judge, Fast Track Court No. 4, Meerut against

the appellants for the offences punishable under Sections

147, 148, 307 read with 149, IPC have been confirmed.

Hence this appeal.

2. The main question that arises for our consideration in the

instant appeal is whether the courts below committed any

serious error in convicting the appellants for the offence

punishable under Section 302? Whether the courts below

committed any error in convicting the appellants for the

offences punishable under Sections 147, 148, 307 read

with Section 149? Whether the findings concurrently

recorded by the courts below to convict the appellants

under the said provisions are so perverse and ex-facie

unacceptable and therefore require our interference in

this appeal preferred with leave granted under Article 136

of the Constitution of India?

3

3. It is fairly well settled and needs no restatement that this

Court should not embark upon a reappreciation of the

evidence, when both the Sessions Court and the High

Court have agreed in their appreciation of the evidence

and arrived at concurrent findings of fact. This Court time

and again held that it is always necessary to bear in mind

the limited scope of the proceedings under Article 136 of

the Constitution of India which cannot be converted into a

third appeal on facts. Mere errors in appreciation of the

evidence are not enough to attract this Court's

`invigilatory jurisdiction'. It is settled law that this Court

may interfere in rare and exceptional cases where there is

some manifest illegality or grave and serious miscarriage

of justice.

4. We shall bear this settled legal position in mind and

proceed to consider whether the findings of fact reached

by the courts below concurrently on appreciation of

evidence suffer from any error of law or have resulted in 4

miscarriage of justice requiring our interference in this

appeal. Whether the view taken by the High Court on

reappreciation of the evidence to agree with the

appreciation of evidence by the Sessions Court is so

perverse resulting in miscarriage of justice.?

5. In all there were 11 accused sent up for trial before the

learned Sessions Judge, the Sessions Court, however,

acquitted five accused and found them not guilty of

charges framed against them. Accused Rajneesh is

absconding. Accused Aman Singh did not file any appeal.

Hence, in this appeal, we are concerned with conviction

and sentence of only the present appellants i.e. accused

nos. 1 to 4.

BACKGROUND FACTS

6. The prosecution case in short is that an incident

occurred on the intervening night of 24/25th May, 1999 at

about 12 O' clock in Lalpur village, Police Station

Bhawanpur, District Meerut. It is the case of the prosecution 5

that on that intervening night the appellants along with

other accused and two unknown persons armed with

country made pistols and rifle came to the village

demanding Ajab Singh (one of the deceased) to enter into a

compromise with regard to a case lodged by Ajab Singh

complaining about his daughter's abduction on 5.11.1997 by

Rajneesh and Vikram. The said case was pending in a court.

Apart from that case, some other cases were also pending

between the parties. Ajab Singh did not agree for the

proposal and enraged by adamant attitude of Ajab Singh,

the accused all of a sudden started indiscriminate firing from

their weapons resulting in death of Ajab Singh, Hari Singh @

Hariya and Geeta. Raj Pal (PW-3), Veer Singh (PW-2) and

Bala (PW-4) received injuries. The accused threatened

Kripal (PW-1) to kill him but he saved himself by hiding in a

room of his house. Aman Singh (A-5) threatened that

nobody should go to the police station and lodge any

complaint and if any one dares to do so would also be killed.

Kripal Singh (PW-1) lodged the report in the early morning 6

at about 5.00 A.M in the Police Station which is at a distance

of about 4 kms. from the scene of occurrence. After the

registration of the first information report, Hukum Singh,

SHO, recorded the statement of the informant at the police

station and thereafter reached the place of occurrence. On

his instructions Sub-Inspector - Sripal Singh (PW-13)

prepared the inquest memos. Recovery memos of blood

stained and plain earth, empty cartridges and bullets were

also prepared. Site plan is exhibited as Ka-17. The

statements of inquest witnesses were recorded. The

statements of injured PWs -2, 3 and 4 were recorded at

Lokpriya Hospital. Thereafter the investigation was taken up

by Jai Dev Arya (PW-11) and upon completion of the

investigation a charge sheet was filed against the appellants.

7. The post mortem on the dead bodies of Ajab Singh,

Smt. Geeta and Hari Singh was conducted by Dr. K.N. Tiwari

(PW-8). He found the following ante-mortem injuries on the

person of the deceased Ajab Singh:

7

1. Gun shot wound of entry 2 cm x 1 cm on the back of chest Rt. side 7 cm below angle of scapula and 3 cm Rt. to midline, margins inverted an area of blackening & tattooing 15 cm x 11 cm around wound present, direction of wound is towards Lt.

Bullet recovered from Lt. Side neck.

2. Gun shot would of entry Rt. side chest interiorly 1 cm. medial to Rt. nipple 1 cm x 1 cm margins inverted, an area of blackening & tattooing of 8 cm x 7 cm. present around wound. Direction of wound is towards chest cavity. Bullet recovered from post chest wall.

3. Gun shot wound of entry 1.5 cm x 1.5 cm on Rt. side neck 1 cm below Rt. ear lobule at 6 O'clock position. Margins inverted an area of blackening & tattooing 5 cm x 4 cm around wound is present. Bullet recovered from substance of liver.

He also conducted post-mortem examination on the body of

Geeta and noted the following ante-mortem injuries:

1. Gun shot wound of entry 1 cm x 1 cm on outer aspect of Lt. upper arm 3 cm below top of shoulder, margins inverted, an area of blackening and tattooing 4 cm x 3 cm seen around wound.

Wound is directed medially and continuous with inj. No. 2.

2. Gun shot wound of exit 1.5 cm x 1 cm on medial aspect of Lt. shoulder 2 cm below top of shoulder, margins inverted. Wound is continuous 8

with inj. No. 1. One bullet recovered from post abd. wall in relation with inj. No. 4.

3. Gun shot wound of entry 4 cm x 4 cm Lt. side head over upper half of Lt. ear. An area of blackening tattooing 6 cm x 6 cm around wound is present hair singing seen. Wound is cranial cavity deep. One bullet recovered from cranial cavity.

4. Gun shot wound of entry on ant. Abd. wall 1 cm x 1 cm, below phisternum and 1 cm Lt. to midline an area of blackening & tattooing 4 cm x 3 cm around wound present. Wound is abd. cavity deep.

He also found the following injuries on the body of Hari

Singh:

1. Gun shot wound of entry on back of abdomen 2 cm x 1 cm 27 cm below C 7 just Lt. to midline, abraded, cavity deep, margins inverted, tattooing in an area of 8 cm x 6 cm present around wound.

One bullet recovered from ant. abraded wall.

2. Gun shot wound of entry 1.5 cm x 1.5 cm on Lt. side forehead 3 cm above & lateral to outer border of Lt. eyebrow, margins inverted an area 4 cm x 4 cm of blackening and tattooing seen around wound. Wound is crania cavity deep. One bullet recovered from cranial cavity.

9

In the opinion of the Doctor the cause of death of each of

the deceased was due to haemorrhage and shock as a result

of injuries sustained by them.

Dr. Vinod Kumar (PW-6) had medically examined Smt.

Bala on 25.9.1999 and noted the following injuries on her

person:

1. A lacerated wound of size 3 cm x 1 cm just above the Public symphysis fresh bleeding present.

2. A lacerated wound of size 2 cm x 1 cm over at the outer aspect of the (r) Arm fresh bleeding present margins inverted. This is 12 cm above the elbow joint.

3. A lacerated wound of size 2.5 cm x 1 cm over medial aspect of (r) arm 10 cm above the elbow joint.

He also examined Veer Singh (PW-2) and noted the

following injuries on his person:

1. Pt. G/C V. Poor Pt. In Hypovolumic shock, pains present all over the abdomen.

2. A fire arm wound of size 4 cm x 2.5 cm present over (1) back of abdomen with Irregular inverted margins, bleeding from the wound present.

Blackening and Tattooing present around the wound.

10

The following injury on Raj Pal (PW-3) were noted by him:

1 An abrasion of size 4 cm x 1 cm present over the (r) lower chest just above the (r) lowest costal margin.

8. The prosecution in order to establish its case had

altogether examined 13 witnesses amongst whom Kripal

Singh (PW-1), Veer Singh (PW-2), Raj Pal (PW-3) and Smt.

Bala (PW-4) are the eye witnesses to the occurrence. PW-1

is the first informant and rest of them are injured persons.

The whole prosecution case turns upon the evidence of PWs-

1 to 4. The courts below did not find any reason whatsoever

to disbelieve their evidence. The courts found that there is

nothing on record to disbelieve their presence at the scene

of offence. The courts have meticulously examined and

assessed their evidence and found the same to be

acceptable. On a careful consideration of the impugned

judgment of the High Court we have found that the

conclusion to which the High Court reached at against the 11

appellants is well sustained on the evidence on record which

requires no interference.

9. However, it will be appropriate for us to consider the

main submissions canvassed by Shri Dinesh Dwivedi,

learned senior counsel for the appellants. He submitted the

following points for our consideration:

I. There was inordinate delay in lodging the report and

the FIR itself came into existence after consultations

and deliberations. It was prepared in the police station

itself. This itself makes the whole prosecution case

suspicious and therefore it cannot be said that the

prosecution has proved the case beyond reasonable

doubt.

II. The police did not record the names of the accused in

the inquest report that was prepared at the earliest

point of time. There is no explanation as to why PW 1, 12

Kirpal Singh, did not disclose the names of all the

accused at the time of preparation of inquest.

III. That all the eyewitnesses are close relatives to the

deceased and therefore, they are interested witnesses,

whose testimony cannot be relied on and made the sole

basis to hold the petitioners guilty of the charged

offences.

IV. The source of light mentioned in the FIR is moonlight

and as well as electric bulb. The Investigating Officer

had mentioned the electric bulb at place `B' in the site

plan. But there was no electricity connection to the

deceased Ajab Singh's house. The witnesses could not

have identified the appellants in the dead of the night.

10. The learned counsel for the State supported the

judgment and submitted that the concurrent findings of facts

arrived at by the Courts below are based on appreciation

and reappreciation of evidence which cannot normally be

interfered with by this Court in exercise of its jurisdiction

under Article 136 of the Constitution. There are no 13

exceptional and extraordinary circumstances requiring any

such interference in the present case.

11. Point I : The incident had taken place in the midnight

at about 12 O Clock. The report was lodged by Kirpal Singh

(PW 1) in the early morning at about 5.30 a.m. in the police

station which is at a distance of about 4 or 5 kilometers from

the place of occurrence. Be it noted, three persons in the

family were killed by a group of persons armed with deadly

weapons. The entire village was terror stricken. One does

not expect that under those circumstances someone to rush

to the police station and lodge the first information report.

PW1 (Kirpal Singh) in his evidence in clear and categorical

terms stated that at the relevant time, he was present in his

house situated in Lalpur, the deceased Ajab Singh was none

other than his nephew, his house is adjacent one to that of

deceased Ajab Singh's. He clearly identified the appellants

who were armed with deadly weapons and seen them

committing the murderous attack on the deceased. He was

also threatened by the appellants and he saved himself by 14

hiding in a room in his house. In the first information report

itself it is stated that Ajab Singh's daughter, Kumari Manju

was abducted by Rajneesh (absconding) with the help of his

uncle Vikram; the abducted girl was recovered by the police

and handed over to deceased Ajab Singh. She was brought

to Meerut for her medical examination where she had

committed suicide. The origin that led the present incident is

traceable to abduction of deceased Ajab Singh's daughter.

The appellants came to insist that Ajab Singh should

withdraw the said case and enter into a compromise to

which he refused.

Be it noted, the first information report was lodged

within 5 to 5= hours immediately after the incident which by

no stretch of imagination could be characterized as the

delayed one. Not only three persons died on the spot but

PWs 2, 3 and 4 were also seriously injured. In the

circumstances, we are not inclined to agree with the

submissions made by the learned senior counsel that there

was unexplained delay in lodging the first information 15

report. Yet another aspect of the matter: The first

information report was not signed by PW 1 (Kirpal Singh). It

was scribed by one Ramveer on his dictation. The fact

remains that the report was received by the Station House

Officer and the FIR was issued immediately thereafter. It is

of no consequence whether the first information report

contained his signature or not. There is no material available

on record to arrive at any conclusion that the first

information report lodged by PW 1 itself was after some

deliberations and consultations in the police station. There is

no such case made out by the appellants. In the

circumstances, it is not possible to agree with the

submissions made by the learned senior counsel that FIR

was lodged after consultations and deliberations.

The evidence of PW 1 is clear and categorical which

depicts the sequence of events. The Courts below rightly

placed reliance upon his evidence. An attempt was made

before us to point out certain minor discrepancies in his

evidence to impeach the testimony but in our opinion, the 16

minor inconsistencies, if any, are not of that nature which

makes us to disbelieve his evidence. The whole narration of

the incident is natural, the deceased Ajab Singh was none

other than the nephew of PW 1, living adjacent to his house,

his presence at the relevant time is also natural and there is

nothing to disbelieve that he knew all the appellants herein

who participated in the attack in which three persons died

on the spot and PWs 2, 3 and 4 had received serious

injuries.

12. Point II : It appears from the record that the names of

the accused and details of weapons possessed by each one

of the accused who participated in the assault are not

mentioned in the inquest report. The panchayatnamas (Ext.

K 25 to K 27) dated 25th May, 1999 were prepared in

between 6.30 a.m. to 9.30 a.m. over the dead bodies of the

three deceased individuals. The inquest reports were

dispatched along with the copy of the first information

report. PW 1 (Kirpal Singh) who is the first informant and

eyewitness to the incident is also one of the witnesses to the 17

inquest reports. The first information report was available

with the investigating officer at the time of preparation of

the inquest reports. The mere fact that PW 1 did not repeat

the names of all the accused so as to be incorporated in the

inquest reports, in our considered opinion, is of no

consequence. The purpose of preparation of inquest report is

to ascertain whether a person has died in some suspicious

circumstances or an unnatural death and as to the apparent

cause of death. The inquest report need not contain the

details as to how the deceased were assaulted or who

assaulted them. The omission of names of the accused and

the minute details of assault in the inquest report itself is

not enough to disbelieve the prosecution case. It is fairly

well settled and needs no restatement at our hands that the

purpose of holding an inquest is very limited, viz; to

ascertain as to whether a person has committed suicide or

has been killed by any other or by an accident or has died

under circumstances raising a reasonable suspicion that

some other person has committed an offence. Section 174 18

of the Code of Criminal Procedure does not mandate the

investigating officer to mention the names of the assailants

in the inquest report. There is no other provision in law or

practice requiring the purpose to mention the names of the

assailants and weapons possessed by them in the inquest

report. The omission thereof does not lead to any inference

to doubt the prosecution case. Such omissions are not fatal

to the prosecution case. It is settled principle that merely

because the witnesses on the inquest report who are also

eyewitnesses did not give out the name of the accused

persons while describing the cause of death in the inquest

report does not render the presence of the eyewitnesses on

the spot doubtful [see Suresh Rai Vs. State of Bihar,

(2000) 4 SCC 84; Eqbal Baig Vs. State of A.P. (1986)

2 SCC 476]. It is unnecessary to further dilate on this

particular aspect of the matter. In the circumstances, we are

not inclined to agree with the submission that PW 1 was not

an eyewitness to the incident.

19

13. Point III: It is true, PW 1 and PWs 2 to 4 and as well as

the deceased are closely inter related. PW 2 is Veer Singh

who stated in his evidence that deceased Ajab Singh was his

maternal uncle. It is in his evidence that he was on the

fateful night sleeping under the neem tree and nearby the

deceased Ajab Singh and his wife Bala, grandfather Hari

Singh and Rajpal were also sleeping. The appellants and

other accused along with two unknown persons reached

there and all of them were armed with country made pistols

and one of the unknown persons was armed with a rifle. It

is in his evidence that he could recognize each one of the

appellants and other accused in the moonlight and electric

light. His version is more or less same as that of PW 1 who

also speaks about the appellants insisting the deceased Ajab

Singh to compromise the abduction case, deceased Ajab

Singh told them that they could talk about it in the morning

but Aman Singh (A 5, who did not prefer any appeal against

his conviction) insisted for a compromise then and there.

Enraged by the same, the appellants started indiscriminate 20

firing resulting in the death of Hari Singh, Ajab Singh and

Geetha on the spot. He himself was injured along with PWs

3 and 4.

PW 3 is one Rajpal who is also an eyewitness to the

occurrence. Ajab Singh was his nephew, he also speaks

about origin of the case that ultimately led to the attack on

the deceased and corroborates the version given by PWs 1

and 2 in all its respects.

PW 4 is Smt. Bala who is none other than the wife of

deceased Ajab Singh. She was sleeping on the Chabutra on

that fateful night along with her daughter Geetha and

husband Ajab Singh. She speaks about the appellants'

presence at the scene of offence and their insisting for a

compromise in the abduction case. She specifically speaks

about the appellants' participation in the crime and

indiscriminate firing by the appellants resulting in death of

her husband Ajab Singh, daughter Geetha and father-in-law

Hari Singh. It is in her evidence that PW 2 Veer Singh, PW 3 21

Rajpal also received injures along with her at the hands of

the accused.

There cannot be any iota of doubt that PWs 1, 2, 3 & 4

are natural witnesses to the occurrence. The mere fact that

they are related to each other itself is no ground to discard

their evidence unless something critical is brought to our

notice that all of them being interested witnesses were

speaking falsely to implicate the appellants. Who else would

have been present at the scene of occurrence except PWs 1

to 4? What is unnatural in the evidence of PWs 1 to 4 to

disbelieve their evidence? None. It is true that the evidence

of relatives of the deceased is to be carefully scrutinized and

appreciated before resting the conclusions to convict the

accused in a given case. In the present case, the Sessions

Court properly appreciated the evidence and meticulously

analyzed the same and the High Court upon reappreciation

of evidence concurred with the view taken by the Sessions

Court. Moreover, the very fact that PWs 2 to 4 were injured

in the incident establishes their presence at the scene of 22

offence. We do not find any reason to disbelieve their

evidence only on the ground that they are interrelated to

each other and also to the deceased.

14. Point IV : This aspect of the matter has been dealt with

elaborately by the Courts below. PW 1 stated in the first

information report itself that he had seen and identified the

accused persons in the moonlight and "in the light of

electricity". There is no dispute whatsoever that the

appellants and other accused barring two were all previously

known to PWs 1 to 4. The occurrence did not take place all

of a sudden. The accused after reaching the spot insisted for

a compromise of a previous case, obviously some exchange

of words took place between the deceased and the accused

and the parties must have come close to each other. The

appellants were not strangers to any of the witnesses. The

evidence of PWs 1 to 4 is consistent with what has been

stated by PW 1 in the very first information report that the

accused were identified in the moonlight and electric light.

In the site plan also, the existence of electric bulb at place 23

`B' is shown. In this regard the trial Court dealt with the

matter very elaborately and observed:

"...And at place `B' the bulb is stated and this house is of PW-1 Kirpal Singh and where the position of the bulb is shown the Chabutara of the occurrence is situated just in front of in after the way (rad) towards north side. Therefore, to identify in one light of this bulb is quite natural and there is no contradiction in the statement of any of the witnesses on this point. All the witnesses have stated to have identified the accused in the electric light and moon light. Also otherwise, the houses of accused persons are situated beside the house of victim party, after the raasta and are of the same village. Therefore, under such circumstances, even in less and dim light to identify the accused persons is quite natural".

That apart it is not even suggested by the defence that

there was no moon light whatsoever on that fateful

night. For the aforesaid reasons, we find no merit in

the contention urged by the learned senior counsel for

the appellants. The High Court has on reappreciation

of the evidence concurred with that finding recorded by

the learned Sessions Judge. We are not inclined to 24

interfere with the concurrent finding of fact arrived at

by the Courts below.

15. No other point is urged.

16. For all the aforesaid reasons, we find no merit in this

appeal. The appeal is accordingly dismissed.

............................................J. (B. SUDERSHAN REDDY)

............................................J. (SURINDER SINGH NIJJAR)

New Delhi,

September 16, 2010.