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

2. The appellants were tried before the Court of the Second Additional Sessions Judge, Unnao for charges under Ss. 302/34, 307/34, 302 and 307. The trial court after considering the evidence led before it came to the conclusion that the prosecution has failed to prove the case against the appellants beyond reasonable doubt and accordingly acquitted the appellants of all the charges framed against them. There after the State of Uttar Pradesh went up in appeal before the High Court against the order of acquittal passed by the Additional Sessions Judge. The High Court however has taken a different view and reversed the order of acquittal passed by the trial Court and held that the prosecution case was amply proved against the appellants and convicted the appellant Bir Singh under Section 302 and sentenced him to imprisonment for life. He was also convicted under Sec. 307 read with S. 34 and sentenced to 7 years rigorous imprisonment. The appellant Ram Dularey Singh was convicted under S. 307 and sentenced to 7 years rigorous imprisonment and also under S. 302 read with Sec. 34 and sentenced to imprisonment for life. The third appellant Hukum Singh was convicted under Section 302/34 and sentenced to life imprisonment and also under S. 307 read with S. 34 to 7 years rigorous imprisonment. The appellants have filed the present appeal against the aforesaid order of conviction and sentences passed by the High Court.

Reasoning:
. 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