SHER SINGH & ORS.

STATE OF UTTAR PRADESH

February 23, 1967

[M. HJDAYATULLAH, J. M. SHELAT AND

G. K. MITTER, JJ.].

Criminal /aw-Acquittal-If High Court in appeal can reverse-Value of inter-relationship between witness and victim.

The appellants were charged for murder under s. 302/34 I.P.C and were acquitted by the Sessions Judge. On appeal the High Court reversed the acquittal and convicted the appellants under s. 302/34 I.P.C. In appeal to this Court the appellants contended that (i) since an acquittal "reinforces" the presumption of innocence, it was not a fit case for rever sal of an acquittal. and (ii' the testimony of the eye witnesses in the case was found by the Sessions Judge to be unsatisfactory.

HELD : The High Court rightly convicted the appellants.

(i) The powers of the High Court in an appeal from an acquittal arc in no way different from those in an appeal from a conviction. The High Court can consider the evidence and weigh the probabilities. It can accept evidence rejected by the Sessions Judge and reject eviden-.::e accepted by him, unless the Sessions Judge relied upon his observation of the demeanour of a particular witness.

In departing from the conclusions of the Sessions Judge the High Court must pay due attention to the grounds on which the acqu ttal is based on repeal those grounds satisfactorily, bearing in mind always that an accused starts with a presumption of innonce in his favour and this presumption cannot certainly be les..c;. strong after the acquittal. If these matters are properly kept in view and the acquittal is reversed, there can no objection because the High Court is empowered to reverse an acquittal. [729 E..G]

Sanwat Singh v. State of Rajasthan [1961] 3 S.C.R. 120, referred to.

(ii) The evidence of the eye witnesses was consistent, convincing and credible The. Sessions Judge lost sight of the main issue, namely, '¥hether what the eye witnesses said was credible, in an attempt 'to examine the inter-relation of the witnesses.

This i" an inquiry of value up to , a point but is not canclusive because there is no crime proved in small village communities where some kind of relationship cannot be estabished between witnesses and the victim and some petty quarrel shown to have taken place in the past. between some of the witnesses and the accused. To decide a case on the basis of .such circumstances, unless they are of great or significant magnitude, is to place reliance on collateral circumstances at the expense of direct evidence of guilt " !ch really matters.

The first serves as a check upcn the latter but no more. [731 B-D]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 191 of 1964.

ff Appeal by special leave from the jLdgment and order dated May 20, 1964 of the Allahabad High Court in Government Appeal No. 1386 of 1962.

SUPREME COURT REPORTS

[1967] 2 S.C.R

A. S. R. Chari and A. K. Nag, for the appellants

0. P. Rana, for the respondent.

The Judgment of the Court was delivered h>

Hidayatullah, J. The three appellants have been convicted by the High Court of Allahabad under s. 302i34 of the Indian Penal Code for the murder of one Harpal and sentenced to rigorous imprisonment for life, after reversing their acquittal by the Sessions Judge, Meerut. Originally five persons were tried for this offence; All of them were acquitted by the Sessions Court. On appeal, the acquittal of the other two (Shanker and Tarif) was maintained but the three appellants (Shersingh, Baljor and Vijaipal) were convicted. They now appeal hy special leave granted by this Court.

The appellants are brothers and sons of arayansingh.

Tarif and Shanker arc brothers of Narayansingh. The deceased Harpal was the brother of Naharsingh (P. W. 1) and Amichand (P. W. 5). The house of Amichand and his brothers is in front of that of the appellants, in Mauza Amanullahpur, Police Station Jani, D!strict Meerut, where the offence was committed.

As frequently happens this murder was the result of a petty quarrel earlier over the taking of carts throug:. fields.

It is hardly necessary to recount in detail what had then happened. Suffice it to say that Shersingh took his cart through Harpal's field and there was a wordy quarrel.

Next Shcrsingh stopped a cart in which Harpal was carryir.g sugarcane and Harpal kicked Shersingh and beat him with fist blows.

Nahar Singh (P. W. 1) and Khazan (P. W. 7) separated them. The murder followed close upon the heels of the second incident.

The case of the prosecution is that a fortmght later on the morning of November 26, 1961 at acout 7 a.m. Harpal left his ghair (compound) to answer a call of nature.

Near the gate of his house the appellants and the two accused (since acquitted) fell upon him. Sher Singh and Vijaipal had spears and Shanker and Baljor had lathis. They beat H.1rpal with their weapons.

Tarif, who also had a stick, took no part in the beating but exhorted the others to kill Harpal.

Harpal was pierced in the chest and abdomen with spears and struck with sticks. On his shout for help his brothers Naharsingh and Amichand, who were working in the back portion of their house came running and three or four witnesses Bhupal (P. W. 2), Tara (P. W. 3), Katara (P. W. 4) and one Atarsingh (who was not examined) came from different sides.

The assailants then fled.

Harpal .vho had fallen down was lifted, placed on a cot and covered with a quilt.

He was however dead.

The autopsy later disclosed two penetrating wounds in his chest

D ..

each of wl>ich had torn through his heart, a penetrating wound transfixing the stomach and some contusions. He must have died in a matter of minutes. The five accused were tried for his murder but were acquitted. On appeal the three appellants were convicted and sentenced.

The learned Sessions Judge in a long judgment exhaustively discussed the evidence but lost himself in the details of family relationship and other irrelevant matters sedulously brought out in a desultory cross-examination. He found it difficult , o accept any part of the testimony of the eye-witnesses. The High Court on a reappraisal of the evidence came to a contrary conclusion although it maintained the acquittal of Shanker an<!! Tarif by giving them the benefit of the doubt. In this appeal Mr. Chari, learned counsel for the appellants, drew our attention to the evidence of the. eye-witnesses and contended that their testimony was unsatisfactory. He submitted that this was not a fit case for the reversal of an acquittal regard being had to the observations of this Court in Sanwat Singh & Others v. State of Rcqasthan(') since an acquittal "reinforces" the presumption of innocence. We shall deal with both the aspects of his argument.

It has been pointed out before by this Court as also the Judicial Committee that the powers of the High :::ourt in an appeal from an acquittal are in no way different from those in an appeal from a conviction. The High Court can consider the evidence and weigh the probabilities. It can accept evidence rejected by the Sessions Judge and reject evidence accepted by him, unless the Sessions Judge relied upon his observation of the demeanour of a particular witness. In departing from the conclusions of the Sessions Judge the High Court must pay due attention to the grounds on which the acquittal is based and repeal those grounds satisfactorily, bearing in mind always that an accused starts with a presumption of innocence in his favour and this presumption cannot certainly he less strong after the acquittal. If these matters are properly kept in view and the acquittal is reversed, there can be no objection because our Criminal jurisdiction empowers the High Court to reverse an acquittal.

In this case the High Court reassessed the evidence and considered the grounds for its rejection by the Sessions Judge.

Mr. Chari contended that the High Court ignored several factors.

His argument was that the High Court ought to have seen that the medical evidence contradicted the oral testimony, the evidence clearly showed that the attack must '1ave taken plac" elsewhere and that the eye-witnesses were interes, ed in the victim and hostile to the accused. We shall now consider these objections,

(l) (196113 S.C.R. 120.

730 SUPl.BMB OOUR T 1.BPOR TS fl 961] 2 S.C.R.

Harpal had three penetrating injuries on his chest and abdomen.

One was a stab wound chest cavity deep and the direction was medially downwards. The second was a stab wound 3!" below the left nipple in the 7th inter costal space near stomach. The wound was partially medial and upward aiid chest deep. The third was a stab wound on the mid part of the eoig1stric region in the midline and it was up to the back from the front and abdominal deep. The other injuries may b~ ignored. The first two injuri>!S had punctured the heart and the third the stomach. There was 8 oz. of clotted blood in the pleura, 3 oz. of clotted blood in the peritoneum and I lb. semi-clotted blood in the pericardium.

The large intestines contained faecal matter and the bladde1 was empty.

Mr. Chari said that the description of th~ injuries shows that Harpal must be lying down and not standing when the first and second blows were given becausP. one stab was downwards and the other upwards. This is not conclusive.

Much depends upon the respective heights of the assailants in relation to that of the victim, the lie of the land and the moves to avoid the blows by the latter. There is nothing inherently improbable in the situation and direction of the injuries which can b~ said to contradict flatly the evidence of the eye-witnesses. The injuries were :; uch as could be inflicted at the gate of the house or elsewhere and no inference against the testimony of th~ eye-witnesses can be drawn.

Mr. Chari sought to strengther. this argument from the circumstances that no blood was found at the spot, or in the tidri where the cot was spread or on the clothes. The Sub-Inspector Chauhal (P. W. 10) said that the place of the attack was sandy and blood had probably been trampled upon.

We have .shown that the body contained I lb. and 11 ounces of blood in its various parts and this showed considerable internal bleeding. It must be remembered that Harpal had worn a kurra, a dhoti and a khes.

It is likely that these between them absorbed the external bleeding which appears to be comparatively small.

At least one witness described that the clothes were <.lrenched in blood which they must have been wherever the murder took place. It is a pity that the clothes were not sent to the serologist but we do not think that an adverse inference can be drawn from this circumstance.

The evidence of the eye-witnesses is consistent. That the incident took place at the very door step of Harpal makes the presence of his brothers probable because they were in the house. The offence took place in day light and there could be no mistake. The report was m:.de almost at once and the names of the assailants and eye-witnesses were mentioned in it. Although it said that many other villagers saw the attack, it is perhaps because the maker presumed that this must have been so. The emptiness of the bladder

showed that the victim had voided but the fullness of the larger intestines supported the prosecution version that he was going out to ease himself.

We have had the evidence of the eye-witnesses read to us and after careful consideration we are satisfied that it is consistent, convincing and credible. The Sessions Judge lost sight of the main issue, namely, whether what the eye-witnesses said was credible, in an attempt to examine the interrelation of the witnesses. This is an inquiry of value up to a point but is not conclusive because there is no crime proved in small village communities where some kind of relationship cannot be established between witnesses and the victim and some petty quarrel shown to have taken place in the past between some of the witnesses and the accused. To decide a case on the basis of such circumstances, unless they are of great or significant magnitude, is to place reliance on collateral circumstances at the expense of direct evidence of guilt which really matters. The first serves as a check upon the latter but no more.

The evidence of the eye-witnesses here is clear.

We accept the findings of the High Court which. are supported by evidence of sufficient probative force to satisfy us. The appeal fails and will be dismissed.

Y.P.

Appeal dismissed.