Union of India v Prafulla Kumar Samal and Another
Supreme Court of India

6 November 1978
CRIMINAL APPELLATE JURISDICTION: Cr.A. No. 194 of 1977. (Arising as an appeal from the Judgment and order Dt. 30-8-76 of the Orissa High Court in Criminal Revision No. 88/76).
The Judgment was delivered by : Syed Murtaza Fazalali, J.
1. This appeal is directed against the judgment dated 30th August, 1976 of the High Court of Orissa by which the High Court has upheld the order of the Special Judge, Puri discharging respondents No. 1 and 2.
2. The facts of the case lie within a narrow compass and centre round an alleged conspiracy said to have been entered into between respondents No. 1 and 2 in order to commit offences u/ss. 5(2) and 5(1)(d) of the Prevention of Corruption Act (hereinafter referred to as the Act) read with section 120-B I.P.C. The main charge against the respondents was that between 19-2-1972 to 30-3-1972 the respondent entered into an agreement For the purpose of obtaining pecuniary advantage for respondent No. 1 P. K. Samal and in pursuance of the said conspiracy the second respondent Debi Prasad Jena, who was the Land Acquisition officer aided and abetted the first respondent in getting a huge sum of money for a land acquired by the Government which in fact belonged to the Government itself and respondent No. 1 was a skew thereof. It is averred in the chargesheet that respondent No. 1 by abusing his official position concealed the fact that the land which was the subject matter of acquisition and was situated in Cuttack Cantonment was really Khasmahal land belonging to the Government and having made it appear that he was the undisputed owner of the same, got a compensation of Rs. 4,18,642.55. The charge-sheet contains a number of circumstances from which the inference of the conspiracy is sought to be drawn by the police.
3. After the charge-sheet was submitted before the Special Judge, the prosecution ousted him to frame a charge against the respondents. The Special Judge, Puri after having gone through the charge-sheet and statements made by the witnesses before the police as also other documents came to the conclusion that there was no sufficient ground for framing a charge against the respondents and he accordingly discharged them u/s. 227 of the Code of Criminal Procedure, 1973 hereinafter called the Code). The Special Judge has given cogent reasons for passing the order of discharge. The appellant went up to the High Court in revision against the order of the Special Judge refusing to frame the charge, but the High Court dismissed the revision petition filed by the appellant and maintained the order of discharge passed by the Special Judge. Thereafter the appellant moved this Court by a application for special leave which having been granted to the appellant, the appeal is now set for hearing before us.
4. The short point which arises for determination in this case is the scope and ambit of an order of discharge to be passed by a Special Judge u/s. 227 of the Code. The appeal does not raise any new question of law and there have been several authorities of the High Courts as also of this Court on the various aspects and grounds on which an accused person can be discharged, but as s. 227 of the Code is a new s. and at the time when the application for special leave was filed, there was no direct decision of this Court on the interpretation of s. 227 of the Code, the matter was thought fit to be given due consideration by this Court.
5. We might, state, to begin with, that so far as the present case (offences committed under the Prevention of Corruption Act) is concerned it is regulated by the procedure laid down by the Criminal Law Amendment Act under which the police has to submit, charge-sheet directly to the Special Judge and the question of commitment to the Court of Session does not arise, but the Sessions Judge has nevertheless to follow the procedure prescribed for trial of sessions cases and the consideration governing the interpretation of section 227 of the Code apply mutatis mutandis to these proceedings after the charge-sheet is submitted before the Special Judge.
6. Before interpreting and analysing the provisions of section 227 of the Code so far as pure sessions trials are concerned, two important facts may be mentioned. In the first place, the Code has introduced substantial and far reaching changes in the Code of 1898 as amended in 1955 in order to cut out delays and simplify the procedure, has dispersed with the procedure for commitment enquiries referred to m section 206 to 213 of the Code, of 1898 and has made commitment more or less a legal formality. Under the previous Code of 1898 the Magistrate was enjoined to take evidence of the prosecution witnesses after giving opportunity to the accused to cross-examine the witnesses 2nd was then required to hear the parties and to commit the acceded to the Court of Session unless he chose to act under section 209 and found that there was no sufficient ground for committing the accused person for trial. Under the Code the Committing Magistrate has been authorised to peruse the evidence and the documents produced by the police and commit the case straightaway to the Sessions Court if the case is one which is exclusively triable by the Sessions Court. Thus, it would appear that the legislature while dispensing with the procedure for commitment enquiry under the Code of 1898 has conferred a dual responsibility on the Trial Judge who has first to examine the case on the basis of the statement of witnesses recorded by the police and the documents filed with a view to find out whether a prima facie case for trial has been made out and then if such a case is made out to proceed to try the same. In our view the legislature has adopted this course in order to avoid frivolous prosecutions and prevent the accused from being tried of an offence on materials which do not furnish a reasonable probability of conviction. In the instant case, as the offences alleged to have been committed by the respondents fall within the provisions of the Act, the Special Judge has been substituted for the Sessions Judge, the procedure of the Sessions Court having been applied fully to the trial of such cases. Thus, it is manifest that the accused has not only one opportunity and that too before the Sessions Judge for showing that no case for trial had been made out. This was obviously done to expedite the disposal of the criminal cases.
7. Secondly, it would appear that under section 209 of the Code of 1898 the question of discharge was to be considered by a Magistrate. This power has now been entrusted to a senior Judge, namely, the Sessions Judge who is to conduct the trial himself and who has to decide before commencing the trial as to whether or not charges should be framed in a particular case against the respondents The discretion, therefore, is to be exercised by a senior and more experienced Judge so as to exclude any abuse of power. In this view of the matter, it is manifest that if the Sessions Judge exercises his discretion in discharging the accused for reasons recorded by him, his discretion should not normally be disturbed by the High Court or by this Court.
8. S. 227 of the Code runs thus:-
"If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing."
9. The words 'not sufficient ground for proceeding against the accused' clearly show that the Judge is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not A necessary for the court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really his function after the trial starts. At the stage of s. 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. The sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him.:
10. The scope of s. 227 of the Code was considered by a recent decision of this Court in the case of State of Bihar v. Ramesh Singh ([1978]1 S.C.R. 287 1977 Indlaw SC 50) where Untwalia, J. speaking for the Court observed as follows:-
" Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. If the evidence which the Prosecutor pro poses to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebut ted by the defence evidence if any, cannot show that the accused committed the offence then there will be no sufficient ground for proceeding with the trial".
11. This Court has thus held that whereas strong suspicion may not take the place of the proof at the trial stage, yet it may be sufficient for the satisfaction of the Sessions Judge in order to frame a charge against the accused. Even under the Code of 1898 this Court has held that a committing Magistrate had ample powers to weigh the evidence for the limited purpose of finding out whether or not a case of commitment to the Sessions Judge has been made out.
12. In the case of K. P. Raghavan and Anr. v. M. H. Abbas and Anr. (A.I.R. 1967 S.C. 740 1966 Indlaw SC 397) this Court observed as follows:-
"No doubt a Magistrate enquiring into a case under S. 209, Cr. P.C. is not to act as a mere Post office and has to come to a conclusion whether the case before him is fit for 8 commitment of the accused to the Court of Session."
13. To the same effect is the later decision of this Court in the case of Almohan Das and ors. v. State of West Bengal ([1969] 2 S.C.R. 520 1968 Indlaw SC 197) where Shah, J. speaking for the Court observed as follows:-
"A Magistrate holding an enquiry is not intended to act merely as a recording machine. He is entitled to sift and weigh the materials on record, but only for seeing whether there is sufficient evidence for commitment; and not whether there is sufficient evidence for conviction. If there is no prima facie evidence or the evidence is totally unworthy of credit it is the duty to discharge the accused: if there is some evidence on which a conviction may reasonably be based, he must commit the case."
14. In the aforesaid case this Court was considering the scope and ambit of s. 209 of the Code of 1898. Thus, on a consideration of the authorities mentioned above, the following principles emerge:
(1) That the Judge while considering the question of framing the charges u/s. 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out:
(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be, fully justified in framing a charge and proceeding with the trial.
(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
(4) That in exercising his jurisdiction under section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a Post office or a mouth-piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
15. We shall now apply the principles enunciated above to the present case in order to find out whether or not the courts below were legally justified in discharging the respondents.
16. Respondent No. 1 was a Joint Secretary in the Ministry of Information and Broadcasting from April, 1966 to January, 1969. Later he worked as Joint Secretary in the Ministry of Foreign Trade till 12-11-1971. Thereafter, respondent No. 1 was working as Joint Secretary, Ministry of Education and Social Welfare. The second respondent worked as Land Acquisition officer in the Collectorate, Orissa from February 1972 to 18th August, 1973.
17. In the year 1969 the All-India Radio authorities were desirous of having a piece of land for construction of quarters for their staff posted at Cuttack. In this connection, the said authorities approached respondent No. 1 who had a land along with structure in the Cantonment at Cuttack. As the All-India Radio authorities found this land suitable, they approached respondent No. 1 through his mother for selling the land to them by private negotiation. As this did not materialise, the All-India Radio authorities moved the Collector of Cuttack to assess the price of the land and get it acquired. Accordingly, the Tehsildar of the area directed the Revenue officer, Cuttack; to fix the valuation of the land of respondent No. 1. The Revenue officer reported back that the land belonged to respondent No. 1 and was his private land and its value would be fixed at Rs. 3000 per guntha. It is common ground that the land in question was situated in Cuttack Cantonment and was a Khasmahal land which was first leased out to one Mr. Boument as far back as 1-9-1943 for a period of 30 years. The lease was given for building purposes.
18. In 1954 Mrs. Boument who inherited the property after her husband's death transferred the land to respondent No. 1 with the consent of the Khasmahal authorities. When respondent No. 1 came to know that the land in question was required by the All-India Radio authorities, he wrote a letter to Mr. S. Gill on 28th October, 1970 suggesting that the land- may be acquired but price fixed by mutual consent. It may be pertinent to mention here that in this, letter a copy of which being Ex. D-4 (12) is to be found at page 86 of the paper-book, respondent No. 1 never concealed the fact that the land really belonged to the Government. In this connection, respondent No. 1 wrote thus:-
"I have represented to you against the revenue authorities quoting a higher price for similar Government land more adversely situated and a lower price for my land despite its better strategic location."
19. We have mentioned this fact because this forms the very pivot of the case of the appellant in order to assail the judgment of the courts below. A perusal of this letter clearly shows that respondent No. 1 made no attempt to conceal that the land in question was, a Government land which was leased out to his vendor. A copy of the original agreement which also has been filed shows that under the terms of the lease, the same is entitled to be renewed automatically at the option of the lessee and unless the lessee violates the conditions of the lease, there is no possibility of the lease being resumed. As it is, the lease had been continuing from the year 1943 and there was no possibility or its not being renewed on 1-9-1973 when the period expired. In these circumstances, therefore, it cannot be said that the letter written by respondent No. 1 referred to above was an evidence of a criminal intention on the part of respondent No. 1 to grab the huge compensation by practising fraud on the Government. Respondent No. 1 a high officer of the Government and was a lessee of the Government, a fact which he never concealed and if he was able to get a good customer for purchasing his land or acquiring the same, there was no harm In writing to the concerned authority to fix the proper valuation and take the land. There, was no question of any concealment or malpractice committed by respondent No. 1.
20. Apart from this, the contention of the appellant that the fact that the land being Khasmahal land belonging to the Government was deliberately suppressed by the respondents is completely falsified by the circumstances discussed hereinafter:
21. The land in question was situated in a Cantonment area and it is not disputed that all lands in the Cantonment area were Khasmahal Lands belonging to the Government.
The High Court in this connection has observed as follows:
"Government authorities admit that the land in question was known to be Khasmahal land from the very inception. This must lead to an inference that the authorities knew that the interest of the opposite party No. 1 in the land was that of a lessee and the State Government was the proprietor."
22. The High Court has further observed that a number of witnesses who were examined by the police had stated that it was common Knowledge that all khasmahal lands in the Cantonment area in Cuttack were Government lands Relying on the statement of Mr. T. C. Vijayasekharan, Collector, Cuttack, the High Court observed as follows:-
"Shri Vijayasekharan who has admittedly played an important role in the land acquisition proceeding has said that it is a matter of common knowledge that all khasmahal lands in Cantonment area at Cuttack are Government lands. He has further categorically stated that Shri P. M. Samantray did not put undue pressure of any kind."
23. Furthermore, it would appear that Mr. B. C. Mohanty, Land Acquisition officer submitted a report about the land in question on 15th February, 1971 in which he had clearly mentioned that the land in question was Government land and that respondent No. 1 was a Pattidar in respect of the land as shown in the record. Thus, one of the important premises on the basis of which the charge was sought to be framed has rightly been found by the High Court not to exist at all. The records of the Government showed the nature of the land. Respondent No. 1 at no time represented to the All-India Radio authorities or the Government that the land was his private one and the records of the Government clearly went to show that the land was a Government land. In these circumstances, therefore, it cannot be said that respondent No. 1 acted illegally in agreeing to the land being acquired by the Government.
24. Another important circumstance relied on by the appellant was the great rapidity with which the land acquisition proceedings started and ended clearly shows that the respondents had joined hands to get the lands acquired and the compensation paid to respondent No. 1. In this connection, reliance was placed on the fact that the copies of the records of rights were prepared on 30th March, 1972 in which the land was no doubt shown as having been owned by the State. Bhujarat report was also prepared on the same date. Respondent No. 1 presented his copy of the deed of transfer also on the same date and respondent No. 2 made the award for Rs. 4,18,642.55 also on the same date. The entire amount was disbursed also on the same date and possession also was handed over on the same date. Prima facie, it would appear that the Officer acted in great hurry perhaps at the instance of respondent No. 1. These circumstances are clearly explainable and cannot be said to exclude every reasonable hypothesis bu the guilt of respondent No. 1. Admittedly, the All-India Radio authorities were in a great hurry to get the land acquired and take possession of the same. As respondent No. 1 was a high officer of the I.A.S. cadre there may have been a natural anxiety on the part of the small officers posted in the district of Cuttack to oblige respondent No. 1 by completing the proceedings as early as possible and meeting the needs of the All-India Radio.
25. It would, however, appear that once notices u/s. 9(1) and 10(1) of the Land Acquisition Act were issued and the objection filed by the appellant was withdrawn, because there was no one else in the field, there was no impediment in the way of acquiring the land and taking possession from respondent No. 1. In fact, it would appear as pointed out by the High Court that as far back as 22nd February 1972 the Land Acquisition officer who was a person other than the second respondent had sent a letter to the Government with the counter signature of the Collector for sanctioning the estimate of acquisition of 2 acres of land belonging to respondent No. 1. Later, however, the area of the land was reduced from 2 acres to 1.764 acres and revised estimates as desired by the Revenue department were sent on 7-3-1972. This estimate amounted to Rs. 4,18,642 55 and was sent through the A.D.M's letter on 8-3-1972. The Home Department by their letter dated 11-3-1972 sanctioned the aforesaid estimate.
26. There after, the Government indicated to the Collector that an award might be passed for acquiring 1.764 acres of land. These facts apart from negativing the allegations of criminal conduct against the respondents demonstrably prove the untruth of the circumstance relied upon in the charge-sheet, namely, that unless the respondent No. 1 and 2 acted in concert and conspiracy with each other, respondent No. 1 could not have known the exact figure of the compensation to be awarded to him. In this connection, reliance was placed on a letter written by respondent No. 1 to the Vigilance officer, L. S. Darbari on 15th March, 1972 where he had mentioned that as Karta of the H.U.F. he would be getting a compensation of Rs. 4,18,642.55 which is to be paid to him on the 10th March, 1972 and it was argued that unless the two respondents were in league with each other how could respondent No. 1 get these details. We are, however, unable to agree with this contention.
27. We have already mentioned that a fresh estimate for 1.764 acres was prepared and the total compensation was Rs. 4,18,642.55 as only the Raiyyati or the lessee's interest was proposed to be acquired and this letter was sent to the Government for sanction and the estimate was sanctioned on 11-3-1972. It was contended that no notice was given to the Khasmahal department, so that the Government could claim compensation of the proprietary interest. It is obvious that what has been acquired in the present case is merely the Raiyyati or the lessee's interest and as the proprietary interest vests in the Government itself, there is no question of either acquiring or claiming compensation for the interest of the Government. In the case of Collector of Bombay v. Nusserwanji Rattanji Mistri & Ors. (AIR 1955 S.C. 298 1955 Indlaw SC 93) this Court observed as follows:-
" If the Government has itself an interest in the land, it has only to acquire the other interests outstanding therein, so that it might be in a position to pass it on absolutely for public user..................... When Government possesses an interest in land which is the subject of acquisition under the Act, that interest is itself outside such acquisition, because there can be no question of Government acquiring what is its own. An investigation into the nature and value of that interest will no doubt be necessary for determining the compensation payable for the interest outstanding in the claimants, but that would not make it the subject of acquisition."
28. To the same effect is a later decision of this Court in the case of The Special Land Acquisition Officer, Hosanagar v. K. S. Ramachandra Rao & ors. (AIR 1972 S.C. 2224 1972 Indlaw SC 750) where this Court observed as follows:-
"Mr. M. Veerappa, the learned counsel for the State of Mysore, contends that the Land Acquisition officer had not assessed the compensation payable for the rights of the respondents in the land acquired .. .......We have gone through the Award made by the Land Acquisition officer. The Land Acquisition officer appears to have valued the rights of the respondents in the lands acquired. Whether the valuation made by him is correct or not cannot be gone into these proceedings."
29. As the appellant was naturally interested in finalising the deal as quickly as possible, there could be no difficulty in finding out the estimates which had been sanctioned a week before respondent No. 1 wrote the letter to the Vigilance Department. This fact proves the bona-fide rather than any wrongful conduct on the part of respondent No. 1 which may lead to an adverse inference being drawn against him.
30. Finally, it was argued that what was acquired by the Government was merely the lessee's interest, but the respondent No. 1 appears to have got compensation as the owner. This is factually incorrect. We have already referred to the circumstances which clearly show that the Government was fully aware that it was only the lessee's interest which was being acquired and even the fresh estimate for Rs. 4,18,642. 55, which was sent to the Government was shown as representing the Raiyyati interest. Mr. Agarwala appearing for the respondents fairly conceded that having regard to the nature, character and situation of the land, it could not be said that the amount of compensation awarded did not represent the market value of the lessee's interest of the land.
31. On the other hand, in the counter-affidavit at page 87 of the paper book, it has been alleged that 16 sale-deeds executed during the year 1970 and sale-deeds executed during the year 1971 pertaining to the village in question were acquired at the rates varying from Rs. 42,165 to 750,000. The High Court has also pointed out that the records before the Trial Judge show that the Collector Vijayasekharan had valued the land at the rate of Rs. 1.70 lakhs per acre as far back 1 as 3-2-1970 and if two years later the valuation was raised to Rs. 2 lakhs it cannot be said that the land was in any way over-valued.
32. Lastly, there does not appear to be any legal evidence to show any; meeting of mind between respondents No. 1 and 2 at any time. Although the Collector at the time of the acquisition was a distant relation of respondent No. 1 he had himself slashed down the rate of compensation recommended by the Revenue officer from Rs. 2,10,000 to Rs. 2,00,000 and it was never suggested by the prosecution that the Collector was in any way a party to the aforesaid conspiracy.
33. For these reasons, therefore, we find ourselves in complete agreement with the view taken by the High Court that there was no sufficient ground for trying the accused in the instant case. Moreover, this Court could be most reluctant to interfere with concurrent findings of the two courts in the absence of any special circumstances.
34. For the reasons given above, the judgement of the High Court is affirmed and the appeal is dismissed.


State of Madhya Pradesh v S. B. Johari and Others
Supreme Court of India

17 January 2000
Cr.As. No. 49 of 2000 (From the Judgment and Order Dt. 24 February 1999 of the Madhya Pradesh High Court in Cr. R. No. 613 of 1998) with No. 50 of 2000
The Judgment was delivered by : M. B. Shah, J.
Leave granted.
1. The aforesaid appeals are filed by the State of Madhya.Pradesh challenging the orders passed by the High Court of Madhya Pradesh, Bench at Indore allowing Criminal Revision Applications Nos.613 of 1998 and 159 of 1999 and quashing the charges framed by the Additional Sessions Judge, Indore in Special Case No.28/96 against the respondents for the offences punishable under Sections 5(1)(d) and 5(2) of the Prevention of Corruption Act, 1948 read with Section 120-B IPC and in the alternative for the offence punishable under Section 13(1)(d)/13(2) of the Prevention of Corruption Act, 1988.
2. FIR was lodged at the Police Station Bhopal to the effect that there was criminal conspiracy in purchase of medicines for S.G. Cancer Hospital, Indore. At the relevant time, Dr. C.P. Tiwari was posted as Dean, Medical College, Dr. M.S. Dwivedi was working as Superintendent, Mr. S.B. Johari (Respondent No.1 in SLP No.2854/99) was working as Medical Officer In charge of Stores and Mr. Sudhir Pingle (Sole Respondent in SLP No.2855/99) was working as Accountant in the hospital. It is alleged that all the aforesaid accused entered into criminal conspiracy with some local businessmen of Indore by misusing their posts and also by using some forged documents that caused wrongful loss to the Government. It has been stated that though many of the items have not been purchased, amount is paid on bogus vouchers. On the basis of the material on record, it was pointed out that some medicines were purchased at Jabalpur at lesser price, roughly at half the rate. After considering the material on record, learned Sessions Judge framed the charge as stated above. That charge is quashed by the High Court against respondents by accepting the contention raised and considering details of material produced on record. The same is challenged by filing these appeals.
3. In our view, it is apparent that the entire approach of the High Court is illegal and erroneous. From the reasons recorded by the High Court, it appears that instead of considering the prima facie case, the High Court has appreciated and weighed the materials on record for coming to the conclusion that charge against the respondents could not have been framed. It is settled law that at the stage of framing the charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The Court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the Court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross examination or rebutted by defence evidence, if any, cannot show that accused committed the particular offence.
4. In such case, there would be no sufficient ground for proceeding with the trial. In Niranjan Singh Karam Singh Punjabi etc. v. Jitendra Bhimraj Bijjayya and Others etc. reported in (1990) 4 SCC 76 1990 Indlaw SC 81, after considering the provisions of Sections 227 and 228, Cr.P.C., Court posed a question, whether at the stage of framing the charge, trial court should marshal the materials on the record of the case as he would do on the conclusion of the trial? The Court held that at the stage of framing the charge inquiry must necessarily be limited to deciding if the facts emerging from such materials constitute the offence with which the accused could be charged. The Court may peruse the records for that limited purpose, but it is not required to marshal it with a view to decide the reliability thereof. The Court referred to earlier decisions in State of Bihar v. Ramesh Singh (1977) 4 SCC 39 1977 Indlaw SC 50, Union of India v. Prafulla Kumar Samal (1979) 3 SCC 4 1978 Indlaw SC 252 and Supdt. & Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja (1979) 4 SCC 274 1979 Indlaw SC 548, and held thus: - From the above discussion it seems well settled that at the Sections 227-228 stage the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The court may for this limited purpose shift the evidence as it cannot be expected even at the initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.
(emphasis supplied)
5. In the present appeals dealing with the contention of respondent Dr. Johri, Mr. A.P. Acharya and Dr. O.P. Tiwari, the High Court observed that role of Dr. Johri in purchase of the medicines was limited to the extent that he prepared only a comparative statement of tenders and that the other two persons were members of the Purchase Committee. The Court arrived at the conclusion that comparison of different prices at different places at different periods on the basis of different transactions between different persons cannot straightway be made the basis for alleging corruption or corrupt practice on the part of the accused. The Court further observed that the trial court has not properly appreciated that there is a difference of about 550 miles between Jabalpur and Indore and therefore price difference in purchase of medicines would be there. The Court also held that the medicines were purchased at two places during different periods and therefore also, there would be a price difference. With regard to A. P. Acharya and Dr. O.P. Tiwari the Court observed that they were not shown to have any control over the purchase of the goods and, therefore, they cannot be saddled with the criminal prosecution. The Court further considered that as per the statement of Manufacturing Company the quotations given by the M/s Allied Medicine Agency, Indore were genuine and, therefore, held that charges levelled against the respondents Dr. Johri, Mr. A.P. Acharya and Dr. Tiwari cannot stand for a minute. Similarly, dealing with the contention of respondent Sudhir Pingle in Crl. Revision No.159 of 1999, the High Court observed that it cannot be disputed that respondent had prepared the bills on account of instructions given to him by superiors, namely, Dr. Johri and Dr. Tiwari and that on his own account he could not have prepared the said bills for making payment to M/s Allied Medical Agency. The Court also observed that he was neither empowered to place orders nor competent to make payment thereof unless the same was approved by the doctors who were actually in charge of the hospital. The Court, therefore, held that there was no sufficient material available for framing the charge against him.
6. In our view the aforesaid exercise of appreciating the materials produced by the prosecution at the stage of framing of the charge is wholly unjustified. The entire approach of the High Court appears to be as if the Court was deciding the case as to whether accused are guilty or not. It was done without considering the allegations of conspiracy relating to the charge under Section 120-B. In most of the cases, it is only from the available circumstantial evidence an inference of conspiracy is to be drawn.
7. Further, the High Court failed to consider that medicines are normally sold at a fixed price and in any set of circumstances, it was for the prosecution to lead necessary evidence at the time of trial to establish its case that purchase of medicines for the Cancer Hospital at Indore was at a much higher price than the prevailing market rate. Further again non-joining of two remaining members to the Purchase Committee cannot be a ground for quashing the charge. After framing the charge and recording the evidence, if Court finds that other members of the Purchase Committee were also involved, it is open to the Court to exercise its power under Section 319 of the Criminal Procedure Code. Not only that, the Court erroneously considered the alleged statement of manufacturing company that quotations given by M/s Allied Medicine Agency, Indore were genuine without there being any cross-examination. The High Court ignored the allegation that many of the items have not been purchased and the amount is paid on bogus vouchers. Hence, there was no justifiable reason for the High Court to quash the charge framed by the trial court.
8. In this view of the matter, the impugned orders passed by the High Court require to be quashed and set aside and we do so. The appeals are allowed accordingly.
Appeals allowed.


State Of Bihar v Ramesh Singh
Supreme Court of India

2 August 1977
Criminal Appeal No. 51 of
1977.
Appeal by Special Leave from the Judgment and Order dated 18-2-1976 of the Patna High Court in Crl. Rev. No. 699/75.
U. P. Singh and S. N. Jha, for the, Appellant
The Judgment was delivered by : N. L. Untwalia, J.
1. The respondent in this appeal by special leave is a Professor of Economics in Munshi Singh College, Motihari in the State of Bihar. At about 3.00 A.M. on the 26th of November, 1973, Smt. Tara Devi, wife of the respondent, was found burning in the kitchen of his house. A hulla was raised. Chandreshwar Prasad Singh, brother of Tara Devi, who is a Professor of Botany in the said College and lives nearby came to the scene of occurrence. It is said he found the respondent and his brother standing near the burning body of Tara Devi but not taking any steps to extinguish the fire. Tara Devi died apparently as a result of the extensive burn injuries on her person. A First Information Report was lodged by Chandreshwar Prasad Singh at the Police Station charging the respondent for having committed the offences under sections 302 and 201 of the Penal Code. Eventually Charge-Sheet was submitted against him by the police and the case was committed to the Court of Sessions for trail of the respondent under section 209 of the Code of Criminal Procedure, 1973-hereinafter called the Code.
2. When the case was opened in the Court of the IIIrd Additional Sessions Judge at Motihari in Sessions Trial No. 66/1975 by the Additional Public Prosecutor in accordance with section 226 of the Code, a plea was raised on behalf of the respondent that there was not any sufficient ground for proceeding with the trial against him and he should be discharged in accordance with section 227. The Additional Sessions Judge accepted the plea and discharged the accused by his order dated April 30, 1975. The State of Bihar the appellant in this appeal went in revision before the Patna High Court to assail the order aforesaid of the Sessions Court. The High Court by its order dated the 18th February, 1976 dismissed the revision. Hence this appeal. It is neither necessary nor advisable for us to mention in any great detail the facts of the prosecution case against the respondent or refer to all the materials and the evidence which may be produced by the prosecutor when a trial proceeds in the Sessions Court. Unnecessary details in that regard have got to be avoided so that it may not prejudice either the prosecution case of the appellant or the defence of the respondent. Since for the brief reasons to be stated hereinafter we are going to set aside the orders of the Courts below and direct the trial to proceed against the respondent, we would like to caution that nothing which may have to be said in support of our order in this judgment is meant and should be understood to prejudice in the least the case of either party at the trial.
3. U/s. 226 of the Code while opening the case for the prosecution the Prosecutor has got to describe the charge against the accused and state by what evidence he proposes to prove the guilt of the accused. Thereafter comes at the initial stage the duty of the Court to consider the record of the case and the documents submitted therewith and to hear the submissions of the accused and the prosecution in that behalf. 'The Judge has to pass thereafter an order either u/s. 227 or s. 228 of the Code. If "the Judge consider that there is not. sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing", as enjoined by s. 227. If, on the other hand, "the Judge is of opinion that there, is ground for presuming. that the accused has committed an offence which-
(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused, as provided in section 228. Reading the two provisions together in juxta position, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under section 227 or section 228 of the Code. At that stage the Court is not to 'see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the, initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. if the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the, trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But, if, on the other hand, it is so at the initial stage of making an order u/s. 227 or section 228, then in such a situation ordinarily and generally the order which will have to be made will be one u/s. 228 and not u/s. 227.
4. In Nirmaljit Singh Hoon v. The State of West Bengal and another, [1973] 2 S.C.R. 66 1972 Indlaw SC 492 -Shelat, J. delivering the judgment on behalf of the majority for the Court referred at page 79 of the report to the earlier decisions of this Court in Chandra Deo Singh v. Prakash Chandra Bose, [1964] 3 S.C.R. 629 1963 Indlaw SC 398 where this Court was held to have laid down with reference to the similar provisions contained in sections 202 and 203 of the Code of Criminal Procedure, 1898 "that the test was whether there was sufficient ground for proceeding and not whether there was sufficient ground for conviction, and observed that where there was prima facie evidence, even though the person charged of an offence in the complaint might have a defence, the matter had to be left to be decided by the appropriate forum at the appropriate stage and issue of a process could not be refused." Illustratively, Shelat J, further added "Unless, therefore, the Magistrate finds that the evidence led before him is self-contradictory, or intrinsically untrustworthy, process cannot be refused if that evidence makes out a prima facie case."
5. The fact that Tara Devi died an unnatural death and there were burn injuries on her person does not seem to be in doubt or dispute. The question to be decided at the trial would be whether the respondent, as is the prosecution case, had murdered her and set fire to her body or whether she committed suicide by herself setting fire to , it This undoubtedly is a serious matter for decision at the trial. But at the stage of framing the charge, copious reference to Modi's Medical Jurisprudence and judging the postmortem report of the Doctor who performed the autopsy over the dead body of the lady meticulously was not quite justified as has been done by the Trial Judge . According to the persecution case the respondent was in love with one of his girl students, named, Nupur Ghosh and this led to the serious differences between the respondent and his wife, the unfortunate Tara Devi, inducing the former to clear the path of his misadventure in the manner alleged by the prosecution. On the other hand, the defence seems to suggest that the 'alleged love-affair of the respondent led Tara Devi to commit suicide. Whether the respondent will be able to prove his defence at the final stage of the trial may not be of much consequence. Surely the prosecution will have to prove its case beyond any reasonable doubt. Although at the time of the alleged occurrence were present in the house of the respondent his brother, his brother's wife, and children the prosecution does not seem to be in possession of any oscular testimony of an eye witness of the occurrence. The case will largely, rather, wholly, depend upon the circumstantial evidence. A stricter proof will have to be applied for judging the guilt of the accused with reference to the various circumstantial evidence against him. The at this stage the Additional Sessions Judge was not right when he said-"it appears that there is neither direct evidence nor any circumstantial evidence to connect the accused with the alleged murder of Tara Devi".' He also ought not to have referred to the varying opinions of the Circle Inspector and the Superintendent of Police, Motihari as to the submission of Charge-Sheet against the respondent. Apart from some other circumstances, as it appears, the prosecution proposes to prove in this case, and whether it will succeed in proving them or not is a different matter, the High Court has enumerated three circumstances in its impugned order. We may just add, and that is only for the purpose of a cursory observation for deciding the matter at this stage, that the story of assault on Tara Devi by the respondent a day prior to the occurrence is perhaps sought to be proved by the evidence of Chandreshwar Singh, the informant, and it seems, he would also try to say, rightly or wrongly, that at the time of the said assault the respondent had given her a threat to kill her. The High Court felt persuaded to take the view that the three circumstantial facts, even if proved, would not be incompatible with the innocence of the accused and then added "There may be strong suspicion against the opposite party, but the three circumstances which I have just mentioned above, cannot be said to be incompatible with the defence of the accused." The said observation of the High Court is not quite apposite in the background of the law which we have enunciated above with reference to the provisions of sections 227 and 228 of the Code. For the reasons stated above, we set aside the impugned orders of the High Court and the Sessions Court and direct that appropriate charge or charges will be framed against the respondent and the trial shall proceed further in accordance with the law.


Nathuni Yadav and Others v State of Bihar and Another
Supreme Court of India

20 December 1996
Appeal (Crl.) 194 of 1989
The Judgment was delivered by : K. T. Thomas, J.
1.  For Bhagelu Singh Yadav, his own residence became most devastatingly unsafe when he and his wife were gunned down by armed assailants during a summer night in the month of June, 1980. His wife Sona Devi fell down dead on the spot though Bhagelu Singh escaped death as the pellets did not injure his vital organs. But the irony of fate of his neighbour Ram Janam Rai was horrendous as he too was shot dead just because he woke up hearing the sound of commotion from his neigh-bourhood. Balroop Yadav (first cousin of Bhagelu Singh Yadav). His two sons (Nathuni Yadav and Chela Yadav) and his son-in-law (Chandrika Yadav) were charge-sheeted by the police on the aforesaid incident before the Sessions Court. After trial learned Sessions Judge acquitted all of them. But a Division Bench of the Patna High Court has reversed the acquittal and convicted them of murder and sentenced them to undergo imprisonment for life. This appeal, is filed under Section 2A of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 and Section 379 of the Code of Criminal Procedure, 1973.
2.  During the pendency of this appeal, Balroop Yadav passed away on 17.2.1990. Consequently, the appeal against him stood abated. We heard Shri M.P. Verma, senior advocate who argued the appeal for the remaining appellants and Shri B.B. Singh, advocate for the State of Bihar.
3.  Balroop Singh's father (Charvidhar) and Bhagelu Singh's father (Lagatu) were direct brothers, decease Bhagelu Singh had married twice and Sona Devi was his second wife. (His first wife and a daughter born in the first wedlock had died long before this incident.) Sheela Kumari (PW-6) is the daughter of Bhagelu Singh and Sona Devi. They were residing together in his house in Diliyan villlage (Rohtak District, Bihar). Appellants were also residing in the same village.
4.  Bad blood existed between Bhagelu Singh Yadav and Balroop Yadav on account of some family feud. This ghastly incident took place around midnight on 11.6.1980. On that fateful night, Bhagelu Singh and other members of his family were sleeping on the open terrace of his residential building. Sona Devi's brother Saryu Singh (PW-4) was also sleeping on the same terrace. It was during then that the assailants jurked into the house and reached the terrace. As the dog barked, Bhagelu Singh Yadav woke up and saw the assailants armed with guns standing closely.
5.  Appellant Chandrika opened fire at Bhagelu Singh while appellant Nathuni Yadav shot Sona Devi with another gun. Hearing the sound of nacouth their neighbour Ram Janam Rai woke up and asked from his terrace as to what was happening. Then Balroop Singh Yadav turned the mouth of his gun towards that neighbour and pulled the trigger. Ram Janam Rai slumped down and breathed his last then and there. During the shoot out Saryu Singh (PW-4) sensed that the assailants might be prowling for the little daughter Sheela Kumari also and so he took courage and lifted her up and slipped away from the scene. Assailants then fled from the scene. Many nighbourers rushed to the place, Bhagelu Singh Yadav was taken to the Government hospital Sasaram where he was treated for the injuries sustained.
6.  We have no doubt that, on the evidence in this case. Bhagelu Singh and his wife were shot at on the ill fated night at the terrace of their residential building nor have we any doubt that their neighbour Ram Janam Rai was shot dead as he woke up in the night and expressed his inquisitiveness as to what was happening in the neighbourhood. We may point out that learned counsel for the appellant did not dispute the above points before us. The contention which learned counsel stressed was that appellants were not the assailants who intruded into the house of Bhagelu Singh Yadav.
7.  According to the learned counsel, there was no possibility at all for the witnesses to identity the assailants as it was a moonless night and there was no lamp burning in the vicinity and hence it would have been pitch dark when the incident happened.
8.  We have considered the said contention from all its angles. Ever assuming that there was no moonlight then, we have to gauge the situation carefully. The proximity at which the assailants would have confronted with the injured, the possibility of some light reaching there from the glove of stars, and the fact that the murder was committed on a roofless terrace are germane factors to be born in mind while judging whether the victims could have had enough visibility to correctly identify the assailants. Over and above those factors, we must bear in mind the further fact that assailants were no strangers to the inmates of the tragedy bound house, the eye witnesses being well acquainted with the physiognomy of each one of the killers. We are, therefore, not persuaded to assume that it would not have been possible for the victims to see the assailants or that there was possibility for making a wrong identification of them. We are keeping in mind the fact that even the assailants had enough light to identity the victims whom they targetted without any mistake from among those who were sleeping on the terrace. If the light then available, though meagre, was enough for the assailants why should we think that same light was not enough for the injured who would certainly have pointedly focussed their eyes on the faces of the intruders standing in front of them. What is sauce for the goose is sauce for the gander.
9.  Apart from the evidence of PW-4 (Saryu Singh PW-6 (Sheela Kumari) and PW-10 (Bhagelu Singh) identifying the appellants as their assailants, there are certain other materials ensuring confidence in our mind that PW10 would have correctly identified his assailants as appellants.
10.  PW2 (Muni Yadav) and PW7 (Ram Janam Rai) were very close neighbours of Bhagelu Singh Yadav. The evidence of those two witnesses is to the effect that when they heard sound of gun shots they rushed to the spot within a few minutes and saw the injured persons in bleeding condition. Those witnesses deposed further that Bhagelu Singh (PW10) and Saryu Singh (PW4) mentioned names of these appellants as the assailants who shot them. PW8 is the son of the Ram Janam Rai. He too deposed similarly that Bhagelu Singh mentioned the names of these appellants when the witness reached the spot soon after seeing his father lying dead with gunshot injury inflicted by somebody from the house of Bhagelu Singh.
11.  The above evidence of PW2, PW7 and PW8 may not become sub-stantive evidence as res gestae. Nevertheless. Such evidence has a utility in the trial as it would fall within the ambit of section 157 of the Evidence Act. Any former statement made by a witness at or about the time when the incident took place becomes usable as of corroborative value under Section 157 of the Evidence Act. Though such statements are not part of the main transaction, they have a probative value for corroborative purposes if such statements have been made without delay. If delay was involved in making Such statement. Its utilily would be restricted to confronting the maker for contradicting him. Such a statement would have no corroborative value. If there was no appreciable delay the statement made by the witness can be used for corroborating his own testimony as provided in Section 157 of the Evidence Act.
12.  The words "at or about the time" in Section 157 of the Evidence Act are the crucial words to judge the time when the statement was made. Whether the statement was made at or about the time of the incident can be decided on (he fads of each case. No hard and fast rule can be laid down for it. However. those words "at or about the time" in Section 157 must receive a pragmatic and liberal construction. The principle is that the time interval between the incident and the utterance of the statement should not be such as to afford occasion for reflection or even contemplation. If the time interval was so short as between the two that the mind of the witness who made the statement was well connected with the incident without anything more seeping into, such statement has a credence, and hence can be used, though not as substantive evidence, as corroborating evidence, on the principle adumberated in Section 157 of the Evidence Act.
13.  Vivian Bose J. has observed in Rameshwar v. State of Rajasthan, AIR (1952) SC 54 1951 Indlaw SC 24 that "there can be no hard and fast rule about" at or about condition in section 157, The main test is whether the statement was made as early as can reasonably be expected in the circumstances of the case and before there was opportunity for listening and concoction". We respectfully follow the aforesaid observation, There is nothing on record to doubt the genuiness of the testimony of PW2 (Muni Yadav). PW7 (Ram Janam Rai) and PW8 (Ramadhar Singh) that they heard from Bhagelu Singh Yadav (PW10) that appellants were the assailants. We hold that the said statements of Bhagelu Singh Yadav (PW10) and Saryu Singh (PW4) corroborate their evidence in this case.
14.  Learned counsel advanced an argument, very vehemently, based on perpetrate the motive attributed to the appellants for committing this dastardly murder. According to the counsel, if appellants were the murders they should have had insatiable thirst for the Wood of Sona Devi, but prosecution suggested only a pusile or fragile motive for them to perpetrate the brutal murder of an unarmed sleeping woman. What PW10 Bhagelu Singh Yadav suggested as motive for the crime is this : He had given his child Sheela Kumari in marriage to somebody else. As he had no other male progeny first appellant Balroop Yadav had an eye on his landed property. But Bhagelu Singh Yadav had gifted it away to his wife Sona Devi.
15. This embittered the appellants and driven them to murder Sona Devi, is the case of the prosecution. Learned Sessions Judge treated it as a very weak motive for this gory murder. Learned counsel for the appellant rightly contended that by murdering Sona Devi appellants could not succeed in securing the property which was gifted away by Bhagelu Singh. Does it mean that appellants would have had no motive at all for gunning down Bhagelu Singh Yadav and his wife? The mere fact that motive alleged by the prosecution is not strong enough for others to develop such a degree of grudge would not mean that the assailants had no serious reasons to do this.
16.  Motive for doing a criminal act is generally a difficult area for prosecution. One cannot normally see into the mind of another. Motive is the emotion which impells a man to do a particular act. Such impelling cause need not necessarily he proportionally grave to do grave crimes. Many a murders have been committed without any known or prominent motive. It is quite possible that the aforesaid impelling factor would remain undiscoverable. Lord Chief Justice Champbell struck a note of caution in Reg v. Palmer (Shorthand Report at page 308 SCC May 1850; thus: "But if there be any motive which can be assigned, I am bound to tell you that the adequacy of that motive is of little importance. We know, from experience of criminal courts that atrocious crimes of this sort have been committed from very slight motives; not merely from malice and revenge, but to gain a small pecuniary advantage, and to drive off for a time pressing difficulties".
17. Though, it is a sound proposition that every criminal act is done with a motive, it is unsound to suggest that no such criminal act can be presumed unless motive is proved. After all motive is a psychological phenomenon. Mere fact that prosecution failed to translate that mental disposition of the accused into evidence does not mean that no such mental Condition existed in She mind of the assailant. In Atley v. State of U.P., AIR (1955) SC 8071955 Indlaw SC 135 it was held "that is true, and where there is clear proof of motive for the crime, that lends additional support to the finding of the court that the accused was guilty but absence of clear proof of motive does not necessarily lead to the contrary conclusion," In .some cases, it may not be difficult to establish motive through direct evidence. While in some other cases inferences from circumstances may help in discerning the mental propensity of the person concerned. There may also be cases in which it is not possible to disinter the mental transaction of the accused which would have impelled him to act. No proof can be expected in all Cases as to now the mind of the accused worked in a particular situation. Sometimes, it may appear that the motive established is a weak one. That by itself is insufficient to lead to any inference adverse to the prosecution.
18.  After considering the various arguments addressed by learned counsel and after scrutinising the evidence in this case. We reach the conclusion that the High Court has rightly interfered with the order of acquittal passed by the trial Judge. The conviction and sentence passed on he appellants are well merited and warrant no interference. The appeal is accordingly dismissed. The bail bonds executed by the appellants would stand cancelled. The Chief Judicial magistrate, Rohtas Sasarara is directed to take immediate steps to put the appellants back in jail for undergoing the sentence.
Appeals dismissed


Angnoo and Others v State of Uttar Pradesh
Supreme Court of India

11 September 1970
Cr.A. No. 209 of 1967.
The Judgment was delivered by: BHARGAVA, J.
1.  The ten appellants in this appeal were convicted for offences punishable u/s. 148 of the Indian Penal Code and Section 302, read with S. 149 of the Indian Penal Code, and each one of them was awarded concurrent sentences of two years rigorous imprisonment for the first offence and imprisonment for life for the second offence. The conviction was recorded in respect of the murder of one Mahadeo on the 12th November, 1964.
2.  The prosecution case was that Mahadeo had appeared as a witness in an enquiry u/s. 202 of the Code of Criminal Procedure which was being held on a complaint filed by one Chotai for an offence under Section 500, IPC, against Angnoo appellant. That complaint was filed by Chotai on the ground that Angnoo had earlier lodged a false report with the police against Chotai and his brother Sumer for an offence under Section 454, IPC After Mahadeo had been examined as a witness in the enquiry, the Court issued summons against the accused. The service of the summons on Angnoo took place on 12th November, 1964.
3. On that day, at about noon, Mahadeo had gone form his village Banyan Khera to another village Rampur, one mile away. It may be mentioned that eight of the appellants belonged to the same village Banyan Khera where Mahadeo resided, while two of them resided in neighbouring villages. When Mahadeo was returning about an hour before sunset and had reached place, two furlongs away from his own village Banyan Khera, near the filed of one Badal, the ten appellants are alleged to have come out of an ambush and attacked Mahadeo with spears and Kantas. Five of the appellants were armed with spears and the other five with Kantas. Mahadeo raised a hue can cry and also tried to defend himself with the Lathi which he was carrying. He was, however, badly injured and died as a result of those injuries on the spot.
4. A number of witnesses had arrived near the place of occurrence and saw part of the attack on Mahadeo. When some of the witnesses waned to come near, of the appellants, Barjor fired a warning shot in the air with his pistol, so that none of the witnesses came very close. They all remained at a distance of about 50 paces from the place of incident. After having caused injuries to Mahadeo, the appellants escaped to the north through the fields and, thereafter, witnesses came near Mahadeo and found him dead. Mahadeo's brother Puttu Lal dictated a report of the incident which was written down by prosecution witness Raja Ram. It was then given to one Kallu to be taken to the Police Station Qasimpur. On the basis of that written report, the First Information Report was recorded at Qasimpur at 8-30 p.m. The offence was, however, committed at a place which fell within the circle of Police Station Auras, so that a copy of the report recorded at Police Station Qasimpur was sent to the Police Station Auras, where the information reached at 11-30 p.m. Thereafter, the case was investigated and the appellants were sent up for trial. The Trial Court relied on the evidence of five eye-witnesses and the medical evidence to record the conviction of the appellants for the offences mentioned above. The High Court upheld the conviction and dismissed the appeal filed by the appellants. Consequently, the appellants have come up in this appeal by special leave.
5.  The Trial Court convicted the appellants on the basis of the evidence of five eye-witnesses P.W. 1, Puttu Lal, brother of Mahadeo deceased, P.W. 2 Maiku, P.W. 3 Shri. Krishna, P.W. 4 Raja Ram and P.W. 5 Juddhi. The argument that has been advanced before us on behalf of the appellants is that the evidence of these witnesses should not have been accepted by the courts because of five reasons.
1) There was delay in lodging the First Information Report;
2) There was conflict between the medical evidence and the evidence of the eye-witnesses;
3) It was not probable that these witnesses could have arrived sufficiently close to the scene of occurrence in time to see the actual assault on Mahadeo;
4) It was not very probable that they would be able to recognise all ten appellants as assailants of Mahadeo; and
5) All the eye-witnesses are partisan witnesses and should not have been relied upon. All these arguments were advanced before the High Court also, and the High Court did not find any force in them.
Having heard learned counsel, we are also unable to hold that any of these grounds would justify our interference with the concurrent decision of the Trial Court and the High Court.
6.  It is true that, according to the prosecution witnesses, the incident took place at about 4.30 p.m. The time has been estimated on the basis of the version of the witnesses that it took place one hour before sunset and, during those days, the time of sunset was about 5.30 p.m. The report was lodged at Police Station Qasimpur, five miles away at 8.30 p.m. part of the delay is explained by the circumstance that some time must have been taken in looking after Mahadeo before his brother Puttu Lal could gather his wits 4to dictate the report, and then time must have been taken in actual dictation while the report was being recorded by P.W. 4 Raja Ram. It however, appears that the report written without the aid of any artificial light and, consequently, writing of the report must have been completed by about 6-30 p.m. Thereafter, that written report was given to one Kallu to be taken to village Qasimpur and he left the place of occurrence on cycle. It is true that, normally, he should have gone straight to the police station it should have been recorded much earlier than 8.30 p.m. However, the explanation for the delay could not be put forward by the prosecution, because Kallu turned hostile and could not be examined by the prosecution for this purpose. It seems to be probable, as indicated by the High Court, that Kallu, for some reason or the other, did not proceed straight to the police station and went off for his own work and, realising that he had committed this mistake, he may have turned hostile to the prosecution. The absence of the explanation for the delay committed by Kallu, under these circumstances, cannot be considered to be a grounds for disbelieving the eye-witnesses.
7.  So far as the question of conflict between medical evidence and the evidence of eye-witnesses is concerned, the submission is based on the fact that, amongst the 27 injuries which were received by Mahadeo, there were four blunt-weapon injuries. According to the prosecution witnesses, the weapons that were carried by the assailants and were used in the attack were a spear and Kantas. The arguments was that neither a spear not a Kanta could cause a contusion, bruises or a depression on the head and, consequently, the evidence given by the eye-witnesses does not fully explain all the injuries received by Mahadeo. It appears to us that most of these witnesses arrived at the scene of occurrence after the attack had already started and were able to see only part of the incident, so that some blows must have been inflicted on Mahadeo before their arrival and some after their arrival. It may be that they failed to notice that some of the assailants were carrying Lathis or, more probably, some of the assailants used their spears like Lathis. They gave blows wielding spears as Lathis rather than thrusting the spears every time. They may have done so even before some of the witnesses arrived. The use of a spear in such a manner will not be very unnatural if a large number of persons surround one single man and try to beat him. In such a situation, it may be easier to wield the spear as a Lathi than to try and thrust it at the person being attacked. There is, therefore, in our opinion, no conflict at all between the medical evidence and the evidence given by the eye-witnesses.
8.  The witnesses came from different places. Puttu Lal P.W. 1 and Juddhi P.W. 5 both came from their village Banyan Khera, which was at a distance of about two furlongs from the scene of occurrence. The distance was not so great that, after hearing the first hue and cry raised by Mahadeo, these two witnesses could not have come in time to see part of the assault on Mahadeo. They both stated that they stopped at a distance of about 50 paces from the place from where Mahadeo was being beaten and saw the occurrence form that place. As pointed out by the High Court, the appellants were in the filed of Badal about 100 paces away where they were concealing themselves. It is possible that Mahadeo started raising a hue and cry as soon as he saw these appellants rushing at him. These cries having been heard by Puttu Lal and Juddhi, they must have started running immediately towards the scene of occurrence and could, therefore, very well come in time to see some of the blows falling on Mahadeo. The other three witnesses Maiku, Shri. Krishna and Raja Ram were also not much further away. In this connection, Shri. Krishna's evidence is challenged on the ground that, according to him, he arrived in village Khanjhri at about 2 or 2.30 p.m., stayed there for half an hour, and was then coming back when he saw this incident. Khanjhri is at a distance of only five furlongs from the scene of occurrence. The argument was that, if he left Khanjhri at about 3 p.m., he could not still be between that village and the scene of occurrence, because he could not have taken 1 1/2 hours to cover a distance of less than five furlongs.
9.  This argument overlooks the circumstances that villagers have no watches or clocks and only give timing from their estimate. It can very well be that Shri. Krishna may have made a mistake of more than an hour in respect of the time of his may have made a mistake of more than an hour in respect of the time of his arrival in village Khanjhri and may have also under-estimated the period during which he stayed there before starting back. In fact, villagers have very little idea of distances also; and this is clear form the evidence of P.W. 4 Raja Ram who stated that his village was at a distance of half a mile from the scene of occurrence. According to him, he heard the shouts when he had covered about 1 1/2 filed away from the village which distance, according to him, would be 90 steps. At the same time, he stated that when he heard the shouts, he was 50 steps away from the place of occurrence. It was pointed out to him by the Court that, according to his evidence, the total distance between the scene occurrence and his village was half a mile, while, calculating from his own position, the distance would be only 90 steps plus 50 steps. He was unable to explain the discrepancy. It is obvious that he had no idea of distances. We are unable to agree with learned counsel for the appellants that, from this circumstances, an inference can at all be drawn that Raja Ram was nowhere near the scene of occurrence and did not see the assault on Mahadeo.
10.  So far as the possibility of recognising the ten appellants is concerned, all the witnesses have stated that they arrived within a distance of about 50 steps while the assault was still going on. All the appellants were well-known to the witnesses and there is no reason to doubt their evidence that they were able to recognise all the ten of them. Persons well-known can be recognised within a very short time. The appellants were seen by them while continuing the attack on Mahadeo and while they were going away after completing the assault.
11.  So far as the last point in concerned, it does appeal that two of the witnesses are not independent. Juddhi is the son of Chotai who has litigation with Angnoo appellant. Seven of the other accused are related to Angnoo, while the two of them are said to be his friends, these two being he Ram Adhar and Barjor Singh. Maiku once appeared as a witness for the prosecution in a case against Ram Adhar and, in that case, his evidence was disbelieved by the Court on the ground that he was a partisan witness. It, however, appears to us that at least the other three witnesses are quite reliable. Puttu Lal is, no doubt, the brother of deceased Mahadeo, but this very circumstance would, in our opinion, add to the value of his evidence, because he would be interested in ensuring that the real culprits responsible for the murder of Mahadeo are punished and not innocent persons. Shri. Krishna and Raja Ram are both totally independent. No relationship between them and any other interested person has been established. They have no motive to gave wrong evidence against the appellants.
12.  Considering all these circumstances, we are unable to hold that the High Court committed any error in upholding the conviction of these appellants. The appeal fails and is dismissed.
Appeal Dismissed.


Anil Kumar v State of U.P.
Supreme Court of India

13 February 2003
Appeal (Crl.) 139 of 1996
The Judgment was delivered by : S. N. Variava, J.
1.  This Appeal is against a Judgment dated 22nd November, 1994. Briefly stated the facts are as follows:
2.  On 11th June, 1978 one Manoj Kumar (P.W.2) was returning to his home. At that time he was way laid by Chaman (the Appellant in Criminal Appeal Nos. 934-936 of 1995, which Appeals have been dismissed today by a separate Judgment) and four other persons way laid him and assaulted him with iron bars, knives and Dandas. On hearing his cries his younger brother Sanjay rushed forward to protect him and embraced Manoj in order to save his life. The younger brother was only 10 years old at that time. Even on seeing that a 10 years old boy has embraced Manoj the assailants did not stop but continued to inflict knife and Danda blows even on the young boy of 10 years. On hearing the cries of Manoj and Sanjay, their father Shri Sidheswar Dwivedi, mother Smt. Kaushalya Dwivedi and sister Sangeeta rushed to save them. They were also assaulted.
3.  Thereafter other people of the public came there and the assailants ran away. A complaint was lodged by the father Shri Sidheswar Dwivedi. In the first information report he named Chaman as having first attacked along with certain unknown persons. He thereafter named certain other persons who were supposed to have come there and helped the assailants after he reached the spot. On the basis of this complaint an investigation was made by the police. Eight accused were put up for trial. As Sanjay had died the charges were under Sections 302, 323, 325 read with 149 and Section 148 of the Indian Penal Code.
4.  The prosecution examined a number of witnesses of whom P.W.1, was the father, P.W.2, was Manoj and P.W.4, was the mother. They were eye-witnesses who narrated the incident and identified Chaman and the Appellant. In spite of detailed cross examination their testimony could not be shaken. Their evidence was corroborated by the evidence of the Doctor who disclosed that Sanjay had died a homicidal death and that Manoj, his father and the mother had also received injuries.
5.  After trial six persons were acquitted by the trial Court. Chaman and the Appellant were convicted by the trial Court under Sections 325 read with 149 I.P.C. for which a sentence of 4 years was imposed. They were also convicted under Sections 324 read with 149 I.P.C. and a sentence of 2 years was imposed. For offence under Sections 323 read with 149 I.P.C. a sentence of 6 months was imposed. For offence under Section 148 I.P.C. a sentence of 1 year was imposed. All the sentences were directed to run concurrently. The Appellant (as well as Chaman) filed two criminal Appeals in the High Court.
6. The State also preferred an Appeal against the acquittal under Sections 302 read with 149 and against the acquittal of other 6 persons. The High Court heard all these Appeals together and disposed off the same by the impugned judgment. The High Court has confirmed the finding of the trial Court that the prosecution had proved its case beyond a reasonable doubt as against Chaman and the Appellant. It has also confirmed the conviction under Sections 325 read with 149, 324 read with 149, 323 read with 149 and 148 of the Indian Penal Code. But the High Court has concluded, and in our view rightly, that an offence was made out under Sections 304 Part II read with 149 I.P.C. and sentenced both Chaman and the Appellant to 5 years rigorous imprisonment. Hence this Appeal.
7.  Mr. Tripurari Ray has submitted that both the trial Court and the High Court have erred in convicting the Appellant. He submitted that in the FIR the Appellant has not been named. He submitted that the scribe of the FIR was one Mr. Umesh Kumar Dixit who was the nephew of the complainant. He submitted that Umesh Kumar Dixit was a class-mate of the Appellant and he knew the Appellant. He submitted that as Umesh Kumar Dixit knew the Appellant he would have named the Appellant in the written complaint if the Appellant had actually been present at that time. He submitted that the prosecution did not examine Umesh Kumar Dixit and therefore the Appellant has been gravely prejudiced. He submitted that an adverse inference must be drawn against the prosecution that if Umesh Kumar Dixit had been examined the Appellant would have been able to establish that he was not present at the time of the incident.
8. We are unable to accept the submission. Umesh Kumar Dixit was not an eye witness. He did not see the incident and did not know who were present or who the assailants were. He only scribed what was told to him by P.W.1. It has come in the evidence of P.Ws. 1, 2 and 4 that they did not know the Appellant prior to the incident. They therefore could not have named him in the FIR. As Umesh Kumar Dixit was not an eye-witness to the incident there was no necessity to examine him. Umesh Kumar Dixit could have showed no light. He could not have stated whether the Appellant was present or not. Therefore no prejudice has been caused to the Appellant.
9.  It was next pointed out that the Appellant was arrested on 12th June, 1978. It was submitted that on the same day the Appellant was taken to the hospital. It was submitted that while taking the Appellant to the hospital no precautions were taken. It was submitted that his face was not covered. It was submitted that for this reason itself the trial gets vitiated. In support of this submission reliance was placed upon the case of S. V. Madan v. State of Mysore reported in (1980) 1 SCC 479 1979 Indlaw SC 403 wherein this Court found that there was no evidence adduced by the prosecution to show that precautions were taken to ensure that the witnesses did not see the accused and/or that the witnesses had no opportunity to see the accused before the identification parade. On this ground it was held that reliance could not be placed on an identification parade. Thus this case was based on the fact that there was no evidence that precautions were taken.
10. We however note that P.Ws. 8 and 9, i.e. the investigating officer and the officer in-charge of the police station, have deposed that they took the Appellant in a covered condition and that whilst the Appellant was in jail he was not shown to anybody. In cross-examination their testimony, that they had taken these precautions, could not be shaken. Thus in this case there is clear evidence that precautions were taken in order to ensure that the witnesses did not have the chance to see the Appellant.
11.  It was next submitted that even though the Appellant was arrested on 12th June, 1978 the identification parade was held only on 27th July, 1978. It was submitted that there was a delay of about 47 days in holding the test identification parade. It was submitted that the test identification parade after such a delay cannot be relied upon and on this ground also the Appellant is entitled to be acquitted. In support of this submission reliance has been placed on the case of Soni vs. State of U. P. reported in (1982) 3 SCC 368 1981 Indlaw SC 608. The entire Judgment consists of one paragraph which reads as follows:
"After hearing counsel on either side we are satisfied that the conviction of the appellant for the offence of dacoity is difficult to sustain. The conviction rests purely upon his identification by five witnesses, Smt. Koori, Pritam Singh, Kewal, Chaitoo and Sinru, but it cannot be forgotten that the identification parade itself was held after a lapse of 42 days from the date of the arrest of the appellant. This delay in holding the identification parade throws a doubt on the genuineness thereof apart from the fact that it is difficult that after lapse of such a long time the witnesses would be remembering the facial expressions of the appellant. If this evidence cannot be relied upon there is no other evidence which can sustain the conviction of the appellant. We therefore allow the appeal and acquit the appellant."
12.  It is to be seen that apart from stating that delay throws a doubt on the genuineness of the identification parade and observing that after lapse of such a long time it would be difficult for the witnesses to remember the facial expressions, no other reaSoning is given why such a small delay would be fatal.
13. Reliance was also placed upon the case of Hari Nath vs. State of U. P. reported in (988) 1 SCC 14 1987 Indlaw SC 28066. In this case the importance of test identification parade was being considered. It was held that the test identification parade only has corroborative value and that a test identification parade should be held with reasonable promptitude after the occurrence.
14.  Based upon the aforesaid authorities it was submitted that the law, as laid down by this Court is that if there is delay in holding the test identification parade then it is difficult to believe that the witnesses would remember the facial expressions of the accused. It was submitted that the law is that such identification becomes suspicious and the accused must be given the benefit of doubt. We are unable to accept these submissions. In the case of Brij Mohan v. State of Rajasthan reported in AIR (1994) SC 739 1993 Indlaw SC 142 the test identification parade was held after 3 months.
15. The argument was that it was not possible for the witnesses to remember, after a lapse of such time, the facial expressions of the accused. It was held that generally with lapse of time memory of witnesses would get dimmer and therefore the earlier the test identification parade is held it inspires more faith. It is held that no time limit could be fixed for holding a test identification parade. It is held that sometimes the crime itself is such that it would create a deep impression on the minds of the witnesses who had an occasion to see the culprits. It was held that this impression would include the facial impression of the culprits. It was held that such a deep impression would not be erased within a period of 3 months.
16.  In the case of Daya Singh vs. State of Haryana reported in AIR 2001 SC 1188 2001 Indlaw SC 20277 the test identification parade was held after a period of almost 8 years inasmuch as the accused could not be arrested for a period of 7-1/2 years and after the arrest the test identification parade was held after a period of 6 months. The cases of Hari Nath 1987 Indlaw SC 28066 (supra) as well as Soni 1981 Indlaw SC 608 (supra) were relied upon on behalf of the accused in that case. Both these cases were considered by this Court. The injured witnesses had lost their son and daughter-in-law in the incident. It was pointed out that the purpose of test identification parade is to have the corroboration to the evidence of the eye witnesses in the form of earlier identification. It was held that the substantive evidence is the evidence given by the witness in the Court.
17.  It was held that if that evidence is found to be reliable then the absence of corroboration by the test identification is not material. It was further held that the fact that the injured witnesses had lost their son and daughter-in-law showed that there were reasons for an enduring impression of the identity on the mind and memory of the witnesses. Reliance was also placed upon the following paragraph in the case of State of Maharashtra v. Suresh reported in (2000) 1 SCC 471 1999 Indlaw SC 768:
"We remind ourselves that identification parades are not primarily meant for the Court. They are meant for investigation purposes. The object of conducting a test identification parade is twofold. First is to enable the witnesses to satisfy themselves that he prisoner whom they suspect is really the one who was seen by them in connection with the commission of the crime. Second is to satisfy the investigating authorities that the suspect is the real person whom the witnesses had seen in connection with the said occurrence."
18.  This Court therefore concurred with the High Court that the categorical evidence of the witnesses received corroboration from the test identification parade even though it was held late. The conviction of the Appellants in that case was upheld.
19. In the present case also Manoj was attacked by Chaman as well as the Appellant. He had a clear look at his assailants. Thereafter his younger brother came to save him and in that process got killed. Manoj also received serious injuries. These are circumstances which would impress upon the mind of Manoj the facial expressions of the assailants. This impression would not diminish or disappear within a period of 47 days. Similar is the case of the father and the mother of Manoj. They have seen the assailants attacking their sons and one of the sons getting killed. In their memory also the facial expressions of the assailants would get embossed. A mere lapse of 47 days is not going to erase the facial expressions from their memory.
20.  All these witnesses have identified the Appellant. We are in agreement with the trial Court as well as the Appellate Court that their evidence is believable. In this view of the matter we see no infirmity in the impugned Judgment. We see no reason to interfere. The Appeal stands dismissed. The bail bond stands cancelled. The Appellant should be taken into custody forthwith to serve out the remaining period of sentence.
Appeal dismissed