Case: Bir Singh and Others Vs. State of Uttar Pradesh

connection, the Sessions Judge relies on the fact that there is no. evidence to show as to how the body of the deceased was found at the Chaupal of his house. No. witness says that any one of the people who had assembled or any member of the family had removed the dead body to the place of the Chaupal. Even Surajpal Singh P.W. 1 the son of the deceased has categorically stated at page 19 of the paper book that he did not lift his father but only touched the body to find out whether he was dead or alive. Thus how the body of the deceased reached the Chaupal is a mystery which the prosecution has failed to explain. It was contended by counsel for the appellants that it would appear from the sketch map that it does not show that the place of occurrence contained any blood marks as the blood stained earth taken by the Investigating Officer does not reveal that it contained human blood. This also supports the suggestion of the defence that the occurrence did not take place in the manner as alleged. In our opinion there is some substance in the argument of the learned counsel and though not a very important circumstance, this is one of the circumstances which cumulatively discredit the prosecution case. 19. Another important argument advanced by counsel for the appellants is that there is absolutely no. evidence to show that there was any blood at the place where P.W. 2 fell down. It was contended that according to the Doctors version having regard to the injury, blood must have been oozing out. If the blood was there then the Investigating Officer could not have failed to notice the same. The fact that blood at that place was not indicated in the sketch map clearly shows that P.W. 2 did not receive injuries at that place. This is undoubtedly an important aspect which merits serious consideration. The Sessions Judge seems to have commented on the fact that P.W. 2 did not accompany the dead body but in our opinion nothing much turns on that because P.W. 1 must have been in a hurry to rush to the Police Station and as P.W. 2 was seriously injured, he may not have though it advisable to carry him. But the fact remains that the prosecution has not been able to show that there was any blood at the place where P.W. 2 fell down which raises a reasonable inference that P.W. 2 may have been assaulted elsewhere and once that is so then the case regarding the assault of the deceased at the place of occurrence also automatically fails because the two incidents are parts of the same transaction. 20. Another imported circumstance which seems to have been over-looked by the High Court is the fact that from the post mortem report it appears that 33 shots and a piece of wadding which were recovered from the body has been sent to S. P. Unnao under sealed cover. No. attempt appears to have been made by the prosecution to prove the weapon from which the shots had been fired. The High Court has come to a clear finding that in view of the admitted evidence that Ram Narain Singh and Vidya Vinod Singh had licensed rifle and gun respectively the possibility that one of these weapons was used for killing the deceased cannot be ruled out. In this connection the High Court observed as follows : There is no. direct evidence to substantiate that the said arms, licences whereof were with the said persons, had actually been used in the crime in question, yet the probability concerning the use thereof, as suggested by the prosecution cannot be ruled out. 21. P.W. 1 has clearly admitted in his evidence that both Ram Narain Singh and Vidya Vinod Singh had rifle and gun respectively and used to visit the village. In these circumstances therefore it was incumbent on the prosecution to have called upon Ram Narain Singh and Vidya Vinod Singh to produce their weapons and sent the same to the ballistic expert in order to establish that the shots recovered from the body of the deceased could have been fired from the gun of Vidya Vinod Singh. Otherwise it is impossible to believe wherefrom a boy of 14 years like Bir Singh would get hold of a gun. According to the prosecution after the altercation Bir Singh and others went into the house and then brought a gun which clearly shows that the gun was present in the house yet no. attempt was made by the Investigating Officer to search the houses of Ram Narain Singh and Vidya Vinod Singh on the night of the occurrence in order to recover the gun. The excuse given by the Investigating Officer that he had sent a constable to get the accused and as they were not found he could not make a search appears to be a lame one. It is true that the Investigating Officer made the search on the next day and that too in the house of Ram Narain Singh but he did not search the house of Ram Dularey Singh as he clearly admits in the following terms at page 48 of the paper book : The search of house of Ram Dularey accused was not taken at all, as I did not think it necessary. Thus a very valuable clue which may have clinched the issue was lost because the Investigating Officer was grossly negligent in conducting the investigation. 22. Taking therefore an over-all picture of the entire case it is difficult for us to hod that the view taken by the Sessions Judge on the evidence and circumstances of the present case was not reasonably possible. This being the position the High Court even if it chose to take a different view, was not justified in reversing the order of acquittal passed by the learned Additional Sessions Judge.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]. In our opinion, if in the present state of the evidence the Sessions Judge refused to accept the prosecution case in the absence of the evidence of Bhikari and Shambhu, who according to the prosecution itself had seen the entire occurrence it could not be said that the view taken by the Sessions Judge was either manifestly wrong, perverse or unreasonable. It would however appear that there were other circumstances which were relied upon by the learned Sessions Judge for discrediting the prosecution case which seem to have been brushed aside by the High Court mostly on conjectural grounds6. The defence of the appellants was that they had absolutely nothing to do with the occurrence and had been falsely implicated due to enmity. A few admitted facts may be mentioned before we proceed to discuss the judgment of the two Courts. The witness Surajpal Singh clearly admits that Ram Narain Singh, father of the appellant Bir Singh, had a licensed rifle and Vidya Vinod Singh the other son of Ram Narain Singh had a licensed gun. One of the extraordinary features of this case is that no. attempt was made by the Investigating Officer at any time to ask Ram Narain Singh or Vidya Vinod Singh to produce their weapons so as to exclude the possibility of these weapons having been used by the appellants. On the other hand, when these weapons were available it is difficult to believe that Bir Singh a boy of 14 years would get a double barreled gun unless it was easily or readily available. The Investigating Officer clearly admits that he never searched the house of Ram Dularey Singh at all and the excuse given by him was that because he was informed that accused were not in the house therefore he did not search the house. Another remarkable feature of this case is as the Sessions judge has clearly pointed out, that there is a serious interpolation in the general diary maintained by the police and there was a good deal of delay in forwarding the general diary to the higher officers. The learned Sessions Judge who had the original diary before him had found that there were interpolations andg where the name of Ram Dularey Singh was written. The Sessions Judge after inspecting the diary found that the possibility of Ram Narain having been converted to Ram Dularey could not be excluded. Thus the defence seems to suggest that the prosecution had first decided to implicate Ram Narain Singh but when it found that at the time of the occurrence Ram Narain Singh was posted at Banda and could furnish a cast iron alibi which would have destroyed the prosecution case, the name of Ram Dalarey Singh was substitutedIn the instant case all thes had serious animus against the accused and they were interested in implicating the accused. The substitution of Ram Dularey Singh in the general diary was a suspicious circumstance. The fact that the police was not able to recover any weapon or to explain how the appellants got hold of the guns was yet another circumstances that required a reasonable explanation from the prosecution. According to the finding of the learned Sessions Judge even the F.I.R. wasd and although the High Court has not accepted this finding we feel, that the High Court on this aspect has entered into the domain of speculation. In view of these special circumstances it was incumbent on the prosecution to examine the two witnesses at least to corroborate the evidence and if they were not examined the Sessions Judge was justified in drawing an adverse inference against the prosecution. At any rate it cannot be said that if under these circumstances the Sessions Judge was not prepared to accept the evidence of these witnesses his judgment was wrong or unreasonable. It may be that the High Court could have taken a different view but that at by itself as held by this court is not a sufficient ground for reversing an order of acquittalIt seems to us that this witness has tried to support the prosecution case by showing his presence on 9th Nov. 1967 till 9 p.m. although in his previous statement before the same Court he categorically stated that on the 9th Nov. 1967 he had left the office at 7 p.m. In these circumstances we place no. reliance on the evidence of this witness. The High Court indulged in another conjecture that the F.I.R. must have been sent to the P.P. and to the Elaqa Magistrate. This was not however a matter of which judicial notice could be taken but had to be proved like any other fact. There was absolutely no. evidence led by the prosecution to show when the F.I.R. was sent to the Elaqa Magistrate or to the P.Ps. office and in the absence of any evidence on this point the High Court was not justified in drawing an inference in order to demolish the positive and categorical statement of P.W. 5 Umesh Chandra Verma the Investigating OfficerThe excuse given by the Investigating Officer that he had sent a constable to get the accused and as they were not found he could not make a search appears to be a lame one. It is true that the Investigating Officer made the search on the next day and that too in the house of Ram Narain Singh but he did not search the house of Ram Dularey Singh as he clearly admits in the following terms at page 48 of the paper book :The search of house of Ram Dularey accused was not taken at all, as I did not think it necessaryThus a very valuable clue which may have clinched the issue was lost because the Investigating Officer was grossly negligent in conducting the investigationl picture of the entire case it is difficult for us to hod that the view taken by the Sessions Judge on the evidence and circumstances of the present case was not reasonably possible. This being the position the High Court even if it chose to take a different view, was not justified in reversing the order of acquittal passed by the learned Additional Sessions Judge