Ramjee Rai and Others v State of Bihar
Supreme Court of India

24 August 2006
W.P. (Cr.) 1621 of 2005
The Judgment was delivered by: S. B. Sinha, J.
1. The Appellants herein with Bharat Rai and Ganeshi Rai (since deceased) were prosecuted for commission of the offence of causing intentional death to one Baijnath Singh and disappearance of his dead body.
A First Information Report was lodged by Rajnath Singh (PW-3), brother of Baijnath Singh (deceased) alleging that on 21.8.1980 at about 4 in the afternoon he along with him was at their plot of land situated by the side of a Dhab in the north of village Dudhiyan where they had gone for cutting Masuria Crops. The Appellants together with Bharat Rai and Ganeshi Rai, variously armed, took them forcibly on a boat to the Dhab letting the boat moving freely. After the boat had proceeded some distance, they started assaulting the deceased. He, however, finding an opportunity in this behalf jumped from the boat and started swimming towards the higher ground, shouting and crying for help. Baijnath Singh died as a result of the assault and his dead body was carried away in their boat. It was stated that the occurrence had been seen by Satyanand Singh (PW-1), Kameshwar Singh (PW-2) and Pancham Singh (PW-5).
2. It was alleged that in view of the flood conditions as also due to night fall, the report could not be lodged in the night. As regards motive for commission of the said offence, the informant alleged that the deceased had a piece of land near the house of the accused and they repeatedly used to pluck the maize and cut away the Masuria crop grown on that land as a result whereof the parties had been quarreling with each other. Allegedly, Baijnath Singh had also apprehended the accused cutting away his Masuria crop wherefor he had abused them in retaliation. The accused persons are said to be belonging to one family and they had been indulging in commission of theft and dacoity. The murder of Baijnath Singh was said to have committed in retaliation of the said incident. In the First Information Report, two accused were said to be carrying country made pistols while the rest were armed with gandasas, lathies and spears. The dead body was recovered after five days, i.e., 26.8.1980.
The dead body was first seen by the Chowkidar (PW-4) of the village. He reported to the informant thereabout. He came and also identified the dead body. All the accused persons were convicted for commission of an offence under Section 302/34 read with S. 201 of the Indian Penal Code and sentenced to undergo imprisonment for life under Section 302/34 and five years rigorous imprisonment under S. 201 of the Indian Penal Code by a judgment and order dated 31.7.1987. An appeal preferred there against by the accused has been dismissed by the High Court by the impugned judgment.
3. Mr. P.S. Mishra, learned senior counsel appearing on behalf of the Appellants, submitted that the learned Sessions Judge as also the High Court committed a serious error in holding that the dead body had been identified to be that of the deceased. According to the learned counsel, keeping in view the post mortem report which clearly showed that only bones were visible, it could not have been identified and in that view of the matter the prosecution case cannot be said to have been proved.
4. It was further submitted that some of the independent witnesses who could throw light on the prosecution case had deliberately been withheld by the prosecution as a result whereof the Appellants suffered grave prejudice. Non-examination of independent and uninterested witnesses by the prosecution, having regard to the fact of the case, Mr. Mishra would submit, was imperative. Reliance in this behalf has been placed on Sahaj Ram and Others v. The State of U.P. [(1973) 1 SCC 490 1972 Indlaw SC 432] and Habeeb Mohammad v. The State of Hyderabad 1954 SCR 475 1953 Indlaw SC 118].
5. The High Court, it was urged, committed a serious error in passing the impugned judgment insofar as it failed to take into consideration the fact that the deceased was having criminal background and, thus, could have been done to death by others. The Appellants, it was contended, have been implicated because of the enmity. Inconsistency in depositions of PWs, it was submitted, had also not been taken into consideration by the courts below. It also argued that the Trial Court as also the High Court ought to have considered individual overt acts on the part of each of the Appellants.
6. Ms. Kirti Sinha, learned counsel appearing on behalf of the State, on the other hand, submitted that the learned Sessions Judge and the High Court rightly convicted the Appellants herein in view of the evidence of the eye witnesses to the occurrence, viz., PWs. 1, 2, 3 and 5. The learned Trial Judge in his judgment inter alia held:
"(i) The injuries inflicted on the body of the deceased were homicidal in nature.
(ii) The prosecution has been able to show that the dead body of Baijnath Singh had been identified.
(iii) Although PW-3 was inimically disposed of towards the accused, it cannot be said that he had falsely implicated the Appellants.
(iv) The prosecution has assigned sufficient reasons for non- examination of the witnesses named in the chargesheet.
(v) Evidences adduced on behalf of the prosecution witnesses being consistent, the prosecution case has been proved."
7. The High Court in its judgment opined:
"(i) The prosecution has brought on records sufficient evidences to prove that the assailants had arrived on a boat, assaulted the deceased and carried away his dead body.
(ii) The prosecution witnesses being closely associated with the deceased, it was not difficult for them to identify the corpse.
(iii) Ocular evidences being consistent in nature, the prosecution has been able to prove the charges as against the Appellants."
8. PW-3 is the informant. The First Information Report was lodged at the earliest possible opportunity. The informant categorically stated that he not only saw the deceased being assaulted, he at the first opportunity jumped from the boat, swam across the Dhab and somehow escaped from the clutches of the Appellants. He categorically stated that he had gone to Akilpur, which was an out-post but the Officer-Incharge was not present there thence. He thereafter returned to his house and in the next morning came to the Danapur Police Station on a boat.
9. It is not in dispute that the dead body of Baijnath Singh was first seen by Ganga Paswan, who was a chowkidar. He was also resident of same village. He knew the deceased from his childhood. He categorically stated that the deceased, on his right hand side of the forehead had patch of grey hair. A one paisa coin was also tied against his waist. He had thick mustache and same resembled with that of Baijnath Singh. He identified the dead body seeing his face and other features. The dead body was found in a field of maize situate in Mauza Banwarichak. It was at a distance of about 1.5 kms. from the place of occurrence.
According to him, river Ganges flows at a distance of 3 kms. South from that field and about 20 kms. from the West of the said field. From the place where the dead body was found, river Ganges flows at a distance of 1.5 miles East. The place has been completely surrounded by the said river. According to him, crops had also been sown in the field.
10. The dead body was also noticed by Ram Swarup Singh. The informant (PW-3) was informed thereabout. He also went to the spot and identified the dead body as that of his brother. The police authorities were also informed in regard thereto.
11. Another witness who was examined by the prosecution was Satyanand Singh (PW-1). He was also an eye-witness. He was sitting on a Machan. He not only named the accused persons having assaulted Baijnath Singh, but also stated that he had seen the informant escaping from the clutches of the accused.
12. PW-2 another eye-witness is Kameshwar Singh. He was also in his maize field at the time of occurrence. He corroborated the statements of PWs 1 and 3. He is again an eye-witness. He also identified the dead body. In his deposition, he stated:
"I told the police that I was in my field on the date of incident. I saw Baijnath Singh, Rajnath Singh in their field before the coming of the accused. There was sickle in their hand at that time. At the time when Rajnath Singh jumped from the boat there was nothing in his hand. The field of Rajnath Singh in Dhudhiya village is at a distance of 2-4-10 Laggi from the Basti."
13. He also stated that despite cries nobody from the village came in view of the water. They have gone to their respective fields by wading through risen water. One Pancham Singh was examined as PW-5. He also was an eye- witness. He testified having seen Baijnath Singh was being assaulted. According to him, as the deceased stopped shouting, he realized that he was no more. The learned Sessions Judge had placed implicit reliance on the testimonies of these witnesses opining:
"Therefore, in view of the discussions made above, I find that all the eye-witnesses are quite competent and reliable and their evidence coupled with the evidence of Doctor (PW.6) and I.O. (PW.7) fully establishes that on the alleged date all the accused persons armed with lathi, Bhala, Gandasa, pistol came on boat, in the field of the informant and forcibly picked up the informant and Baijnath Singh on boat, and then went towards Dhab and assaulted Baijnath Singh with their respective weapons, causing his death."
14. The High Court also in its impugned judgment discussed the evidence of the eye-witnesses and held:
"We are unable to accept the submission and on a careful examination of the written report and the depositions of all the witnesses, including the informant, P.W.3, we find no inconsistency in those statements. In the written report, it is stated that while the informant and his brother Baijnath Singh were cutting Masuriya crop on their plot of land, the accused arrived with variously armed and threatening them with their arms, they forcibly took him and his brother to the Dhab on a boat.
We are unable to read to statement in the written report to mean that the accused had come to the land, where the informant was there with his brother, on foot and they took them along on foot up to Dhab where they boarded the boat that was waiting there. The statement in the written report on a careful reading plainly means that the accused arrived there on a boat and forcibly picked up the informant and his brother on it and took them in the direction of the Dhab. We, thus, find no inconsistency, much less, any contradiction in the prosecution story as stated in the written report and as deposed before the court by the witnesses."
15. In regard to the identification of the dead body, the learned Sessions Judge held that the dead body was that of Baijnath Singh which had duly been proved by PWs 3 and 4. We may at this juncture notice the medical evidence.
16. Dr. Sheonandan Barunwal, who examined himself as PW-6, proved the post mortem report. The dead body before him had been identified as that of Baijnath Singh by the constable, Rajnath Singh and the Chowkidar. The age of the deceased was said to be 35 years. The clothes were having a ganji, dhoti and a small chadar. The body was in a decomposed condition. Rigor mortis was absent. The body had three cut wounds. It was categorically stated that the hairs of scalp were intact. The post mortem report does not suggest that there was no mark on face or identification marks were totally absent. In his opinion, the death might have been due to amputation of hands. He categorically stated that the dead body was thrown in water and the soft parts were eaten away by the fish. According to him, it was difficult to assess the period past since death. But, according to him, it may be approximately 10 days.
17. The Appellants did not even suggest that the deceased did not have the special features whereabout PW-4 made categorical statement. His age at the time of death had also not been disputed. The Investigating Officer Ram Naresh Shukla (PW-7) also stated in categorical terms that the entire flesh below the stomach had been eaten away by the animals and the dead body had been identified by Chowkidar Ram Swarup Singh and Raghunandan Paswan, Ganga Paswan and Kameshwar Singh of Banwarichak stating that the same was that of Baijnath Singh. Even the age of the deceased was not disputed.
18. It is now a trite law that corpus delicti need not be proved. Discovery of the dead body is a rule of caution and not of law. In the event, there exists strong circumstantial evidence, a judgment of conviction can be recorded even in absence of the dead body. [See Rama Nand and Others v. State of Himachal Pradesh, (1981) 1 SCC 511 1981 Indlaw SC 129].
19. In Ram Gulam Chaudhary and Others v. State of Bihar [(2001) 8 SCC 311 2001 Indlaw SC 228], this Court noticed the decision in Rama Nand 1981 Indlaw SC 129 (supra) and opined:
"There can be no dispute with the proposition of law set out above. As is set out in the various authorities (referred to above), it is not at all necessary for a conviction for murder that the corpus delicti be found. Undoubtedly, in the absence of the corpus delicti there must be direct or circumstantial evidence leading to the inescapable conclusion that the person has died and that the accused are the persons who had committed the murder "
20. What was, therefore, necessary for the courts below to arrive at a finding of guilt as against the Appellants in regard to their involvement in the crime. It is not a case where the dead body could not be identified. There had been sufficient materials placed by the prosecution to bring home the said fact. So far as submission of Mr. Mishra that some independent witnesses have not been examined is concerned, from the records it may be noticed that it would appear that the public prosecutor categorically stated before the learned Sessions Judge that some of the witnesses were inimically disposed of towards the informant.
The Appellants have not brought on record any material to show that the aforementioned stand taken by the prosecution was not correct. It is true that ordinarily the prosecution should examine all witnesses whose names have been disclosed in the chargesheet; but, then the same cannot be said to be a rule having universal application. Each case has to be considered on its own facts.
21. It is now well-settled that what is necessary for proving the prosecution case is not the quantity but quality of the evidence. The court cannot overlook the changes in the value system in the society. When an offence is committed in a village owing to land dispute, the independent witnesses may not come forward.
22. In Sheelam Ramesh and Another v. State of A.P. [(1999) 8 SCC 369 1999 Indlaw SC 1505], this Court opined:
"Courts are concerned with quality and not with quantity of evidence and in a criminal trial, conviction can be based on the sole evidence of a witness if it inspires confidence."
23. Yet again in Pohlu v. State of Haryana [(2005) 10 SCC 196 2004 Indlaw SC 1672], this Court opined:
"It is true that it is not necessary for the prosecution to multiply witnesses, if it prefers to rely upon the evidence of the eyewitnesses examined by it, which it considers sufficient to prove the case of the prosecution. However, the intrinsic worth of the testimony of the witnesses examined by the prosecution has to be assessed by the court. If their evidence appears to be truthful, reliable and acceptable, the mere fact that some other witnesses have not been examined, will not adversely affect the case of the prosecution "
24. In Balram Singh v. State of Punjab, [(2003) 11 SCC 286 2003 Indlaw SC 435], this Court opined:
"The appellants' contention that the prosecution has relied only on interested evidence of PWs 1 and 2 and has not examined the other independent witnesses who were present or for that matter the non-examination of another son of the deceased by the name of Jasbir Singh should give rise to an adverse inference, cannot also be accepted because so far as Jasbir Singh is concerned, though there is some material on record to show that he was examined by a doctor on the night of the incident, there is no material to show that he was actually involved in this fight. His name is not mentioned in the FIR also, therefore if the prosecution has thought it not necessary to examine this witness, we do not think an adverse inference could be drawn on the basis of this non-examination of the said Jasbir Singh. This view of ours also holds good in regard to the so-called other independent witnesses who were present at the time of the incident since in a family feud like this it is rare that an independent witness would come forward to give evidence."
25. Yet again in State of U.P. v. Anil Singh [1988 Supp SCC 686 1988 Indlaw SC 28], it was observed:
"Of late this Court has been receiving a large number of appeals against acquittals and in the great majority of cases, the prosecution version is rejected either for want of corroboration by independent witnesses, or for some falsehood stated or embroidery added by witnesses. In some cases, the entire prosecution case is doubted for not examining all witnesses to the occurrence. We have recently pointed out the indifferent attitude of the public in the investigation of crimes. The public are generally reluctant to come forward to depose before the court. It is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. Nor it is proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable."
26. In Habeeb Mohammad 1953 Indlaw SC 118 (supra), whereupon Mr. Mishra has placed strong reliance, this Court stated that prosecution was not bound to call all available witnesses irrespective of consideration of number of reliability, witnesses essential to the unfolding of the narrative on which the prosecution was based must be called by the prosecution, whether in the result the effect of their testimony is against the case of the prosecution.
27. However, in that case the Appellant there was a Subedar. The allegation against him was that he ordered the police to fire. The Deputy Commissioner of Police who had accompanied the Appellant and had witnessed the occurrence had not been examined by the prosecution. It was in that fact situation held that the prosecution should have examined the said witness. It was held that the Appellant was considerably prejudiced by the omission on the part of the prosecution to examine the said officer and other officers in the circumstances of the said case and the conviction of the Appellant merely based on the testimony of the police jamedar cannot be said to have been arrived at after a fair trial, particularly, when no satisfactory explanation has been given or even attempted for this omission.
28. In Sahaj Ram 1972 Indlaw SC 432 (supra) again, relied by Mr. Mishra, there was a group rivalry. In that case, the Court found serious mistakes committed by the Sessions Judge as also the High Court in appreciating evidence. Keeping in view the peculiar nature of the case and having regard to the fact that there had been group rivalry, it was opined:
"As pointed out by this Court in Habeeb Mohammed v. State of Hyderabad though the prosecution is not bound to call all available witnesses irrespective of considerations of number or reliability, witnesses essential to the unfolding of the narrative on which the prosecution is based must be called by the prosecution, whether in the result the effect of their testimony is for or against the case of the prosecution. This Court approved the decision of the Judicial Committee in Stephen Seneviratne v. King laying down a similar proposition. In this case the first information report clearly states that Shitabi, CW 1, was an employee of the deceased and he was with his master at the time of the incident. He has also given information about the incident to PW 1 and others. Whatever justification there may have been for not examining Ram Prasad, the prosecution, in our opinion, was not justified in keeping back Shitabi "
29. In Lakshmi and Others v. State of U.P. [(2002) 7 SCC 198 2002 Indlaw SC 1780], this Court opined:
"Undoubtedly, the identification of the body, cause of death and recovery of weapon with which the injury may have been inflicted on the deceased are some of the important factors to be established by the prosecution in an ordinary given case to bring home the charge of offence u/s. 302 IPC. This, however, is not an inflexible rule. It cannot be held as a general and broad proposition of law that where these aspects are not established, it would be fatal to the case of the prosecution and in all cases and eventualities, it ought to result in the acquittal of those who may be charged with the offence of murder. It would depend on the facts and circumstances of each case. A charge of murder may stand established against an accused even in the absence of identification of the body and cause of the death."
30. In the instant case, however, some of the witnesses examined by the prosecution are independent. The evidence of all the witnesses are more or less consistent. Nothing has been pointed out to discredit their testimonies. The learned Sessions Judge as also the High Court, therefore, cannot be said to have committed any mistake in relying upon the testimonies of the said witnesses.
31. A contention was raised that autopsy surgeon opined that the death must have taken place 10 days prior to the post mortem examination and in that view of the matter the prosecution case should be disbelieved. The murder allegedly took place on a boat. The dead body was thrown in the water. It remained under water for more than five days. Rigor mortis was absent and the body was fully decomposed. The soft tissues of some of the parts of the body had been eaten away by fish. Medical science has not achieved such perfection so as to enable a medical practitioner to categorically state in regard to the exact time of death. In a case of this nature, it was difficult to pinpoint the exact time of death. The autopsy surgeon told about the approximate time lag between the date of post mortem examination and the likely date of death. He did not explain the basis for arriving at his opinion. This Court on a number of occasions noticed that it may not be possible for a doctor to pinpoint the exact time of death.
32. In Ramreddy Rajeshkhanna Reddy and Anr. v. State of Andhra Pradesh [(2006) 3 SCALE 452 2006 Indlaw SC 144], this Court observed:
"In this case, the time of actual offence having regard to the different statements made by different witnesses may assume some importance as one of the grounds whereupon the High Court has based its judgment of conviction is the time of death of the deceased on the basis of the opinion rendered by Dr. P. Venkateshvarlu (P.W.13).
In Modi's Medical Jurisprudence, 22nd edition, as regard duration of rigor mortis, it is stated:
It was, therefore, extremely difficult to purport the exact time of death of the deceased, more so when no sufficient reason was assigned in the post-mortem report."
33. Submission of Mr. Mishra is also to the effect that the learned Sessions Judge had not discussed about the individual overt acts of the Appellants. The prosecution witnesses categorically stated about the whole incident. The occurrence took place on a boat. Out of two persons forcibly taken on the boat, PW-3 could escape. There were fourteen accused persons. They had inflicted injuries upon him. Post mortem suggests that sharp cutting weapons had been used.
Two accused persons, as noticed hereinbefore, were held to be possessed of some cutting weapons. The Appellants came in a group. Some of them started assaulting the deceased with weapons in their hands. In a case of this nature, it was well nigh impossible for the first informant to pinpoint the exact overt acts committed by each of the accused persons individually. S. 34 of the Indian Penal Code, therefore, is clearly attracted in a case of this nature.
34. In a recent judgment in Bishna Alias Bhiswadeb Mahato and Others v. State of W.B. [(2005) 12 SCC 657 2005 Indlaw SC 1047], the law has been stated in the following terms:
"For the purpose of attracting S. 149 and/or 34 IPC, a specific overt act on the part of the accused is not necessary. He may wait and watch and the inaction on the part of an accused may sometime go a long way to hold that he shared a common object with others."
35. For the reasons aforementioned, we are of the opinion that no case has been made out for interference with the impugned judgment. The appeal is dismissed.
Appeal dismissed.


State Government of Nct of Delhi v Sunil and Another
Supreme Court of India

29 November 2000
Appeal (Crl.) 1119-1120 of 1998
The Judgment was delivered by : K. T. Thomas, J.
1.  Two sex maniacs libidinously ravaged a tiny female tot like wild beasts and finished her off. Police after investigation found that the two respondents herein are those two fiends. A Sessions Court upheld the said police version as correct. He sentenced one of them to death penalty and the other to life imprisonment, but a Division Bench of the High Court of Delhi declined to believe the police version as true and consequently the two respondents were acquitted. This appeal by the State is by special leave.
2.  The little girl was Anuradha and she was aged only four. She was fondly taken away from her mothers house on the forenoon of 5.9.1992. Her dead body was taken up by her mother on the same night from the house of first accused Sunil.
3. When the doctor conducted autopsy on the dead body he described the dimensions of the imprints left in the infantile body reflecting a horrible sexual molestation inflicted on the child. Next day the police arrested the two accused (A1-Sunil and A2-Ramesh) and after completing the investigation charge-sheeted both of them for offences under Sections 364, 376, 377 and 302 read with Section 34 of the Indian Penal Code. After the trial the sessions court convicted both of them under all the aforesaid counts and sentenced A2 Ramesh to death and A1 Sunil to imprisonment for life on the charge of murder and awarded lesser sentences for the remaining counts.
4.  Details of the prosecution case are the following: Anuradhas mother Sharda (PW10) was known to A1 Sunil and his mother (Giano Devi). Sharda had stayed in the house of Giano Devi for a few days and their acquaintance became closer. Sharda was working in a tube-light manufacturing factory during those days.
5. As she needed a place to live in Giano Devi arranged a small hutment (Jhuggi) with the help of another lady (PW8 Tara) who was residing close-by. On the occurrence day Sharda went to the factory for work leaving her child Anuradha in the custody of PW8-Tara. At about 11 A.M. Sunil visited them and expressed to PW8-Tara that he would take the child and her clothes as well as some domestic utensils to PW10. Though PW8 suggested that this should be done only if Sharda permits, A1-Sunil took the child and her clothes and the utensils from his house during a short time when PW8-Tara had gone out to fetch milk. When she came home in the night she learnt from PW8-Tara that her child was taken away by Sunil. So she went to Sunils house.
6. It was about 9.00 P.M. then. To her dismay she found her little child lying completely nude next to A2-Ramesh, on the second floor of the house, who was then deep in his sleep. Then Sunil, who was found in an inebriated mood, hurled a remark that I have dispatched Anuradha to heaven. She felt concerned as to what would have happened to the child. It was then she realised that her child was breathless. PW10- Sharda then took the child to the hospital, but the doctor who examined her pronounced her dead.
7.  PW1 - Dr. Basant Lal conducted the autopsy on the dead body of the child at 12.00 noon on 7.9.1992. In his opinion the child would have died about 36 to 48 hours prior to the autopsy. He gave full details in his post-mortem report about the features noticed by him on the dead body. The corpse was full of abrasions and contusions. The prominent among them were counted by the doctor as 25 in number and he described the situs and dimensions of all of them. Among them, oval fashioned multiple abrasions on the left cheek appeared to him as marks of biting. Both the upper and lower lips of the child were bruised violently. Marks of violent handling of both the thighs, lower abdomen and pubic region are also described by the doctor.
8. The vaginal orifice is described by the doctor in his report as follows:
9. Labia majora and minora swollen and reddish blue in colour. Vaginal orifice dilated and blood is coming out of it. Right labia minora showing tears 1.6 x 0.1 cm. and on left side labia minora showing tear in an area of 1.5 x 0.2 cm in vertical plane. Labia majora showing contusion on both sides in an area of 3 x 2 cm each.
About hymen the doctor described thus:
10. Hymen showing tear at 5 and 6 Oclock position which was going upto the vaginal wall and triangular in shape in an area of 1.5 x 1 x 1 cm. There were tears on the sides and back of urethra opening upto hymen in an area of 1.4 x 1.2 cm. in triangular fashion.
About the anus the doctor described as follows:
11. Dilated and blood was coming out of it. The diameter was 1.5 cm. The area around the orifice was showing swelling with reddish contusion in an area of 2 cm.
12.  DR. Basant Lal (PW-1) further noted that the vaginal orifice was so badly mutilated that one middle finger could be easily admitted into it. Even the tongue was not spared in that violence as the doctor found its position like this:
13. The tongue was showing abrasion 0.5 x 0.5 cm. on its front right outer aspect with contusion around. Reddish bluish in colour Bite mark.
14.  During examination of the head of the body PW1 noticed thick layered bluish-reddish effusion of blood on the right temporal parietal region. Though there was no fracture of the skull the duramater on the left side looked bluish, and there was thick subdural haemotoma in an area of 20x10x0.8 cm. and one fist full clotted blood, and patchy subarachnoid haemorrage all over the brain which were also noticed by the doctor.
15.  From the woeful and eerie features described by the doctor no court could possibly escape from the conclusion that the little child was violently molested, ravished, raped and sodomised besides penile penetration having been made into her mouth. The remnants of extensive mangling of the tender body of the child would reflect the possibility of more than one rapist subjecting the child to such beasty ravishment.
16.  Though the Sessions Court acted on the above medical report as reliable it is unfortunate that the Division Bench of the High Court expressed misgivings about it. The only basis for entertaining doubt about the correctness of the findings recorded by PW1 Dr. Basant Lal was that when the deceased was first examined by one Dr. Gajrat Singh at 11.40 P.M. on 5.9.1992 he noted only multiple bruises all over the body in Ext.PW11/1 MLC (Medico Legal Certificate).
17. It was the said doctor who pronounced the girl dead. He made the above entry in the MLC. It must be noted that Dr. Gajrat Singh was not examined as a witness in the court. Apparently that doctor was not disposed to conduct a detailed examination on the dead body either because he was pretty sure that the body would be subjected to a detailed autopsy or because the doctor himself was in a great hurry. Whatever be the reason, no court could afford to ignore the report of the doctor who conducted the autopsy with meticulous precision about all the features noticed, merely on the strength of what another doctor had scribbled in the MLC at the initial stage.
18.  Learned Judges of the High Court should have noticed that the evidence of PW1 Dr. Basant Lal was not even controverted by the defence as no question was put to him in cross-examination by the defence counsel. His testimony ought to have been given due probative value particularly when nothing was shown to doubt the evidence of that medical practitioner. Learned counsel for the respondents was not able to pick out even a single answer from his evidence which could at least throw a modicum of doubt about the correctness of his evidence. Hence we have to proceed on the premise that whatever PW1 Dr. Basant Lal  found on the dead body were the actual position noticed by him during autopsy. The Sessions Judge has rightly accepted that evidence and no exception can be taken thereto. Thus, it is beyond doubt that the little girl was raped and sodomised and that death was due to the injuries sustained in that exercise.
19.  When the above premise is so certain the task of the court is narrowed down to the limited area i.e., were the two respondents the rapists or is there any reasonable scope to think that somebody else would have done those acts.
20.  The trial court came to the conclusion that the culprits are the two respondents and none else. The Sessions Judge found that prosecution has established the following circumstances:
(1) Sunil (1st accused) had taken the child from the house of PW8 Tara by about noon on 5.9.1992.
(2) The child was recovered from the house of A1 Sunil and she was then found breathless.
(3) That child was lying naked by the side of A2 Ramesh who was in deep sleep when the mother of the child lifted her up.
(4) A1 Sunil, who was then in inebriated condition, blurted out that Anuradha was sent to heaven.
(5) The blood-stained nicker of Anuradha was later recovered from the house of A2 Ramesh on the basis of a statement given to the police.
21.  The trial court concluded on the strength of those circumstances that both the respondents are liable to be convicted for murder, rape and unnatural offence, while A1 Sunil is additionally liable for kidnapping the child for murder. Accordingly the trial court convicted both the respondents and sentenced them as aforesaid.
22.  Regarding the first circumstance that it was A1 Sunil who took the child from the care of PW8 Tara, prosecution has examined PW8 Tara and her neighbour PW12 - Dariba besides the evidence of PW10 Sharda. PW8 Tara said that she knew both the accused since they used to stay in the house of Sharda for some days earlier. According to PW8 Tara, the child and her mother had stayed in her Jhuggi for a few days and on the date of occurrence A1 Sunil visited the Jhuggi at 11 A.M. and requested her to let the child Anuradha be taken with him along with some utensils and clothes.
23.  The suggestion was that he had to take the child to the factory where Sharda was working. It appears that PW8 Tara was reluctant to allow him to take the child presumably because she did not know whether Sharda herself wanted the child then. But during the short interval when she went out of the house for purchasing milk A1 Sunil had taken away the child. As she did not know where Sharda was working and as the child was taken away by A1 Sunil who was familiar to Sharda no immediate step was taken by PW8 Tara and she chose to wait till Sharda returned.
24.  The above evidence of PW8 Tara is to be appreciated in the light of what PW10 Sharda herself had said. PW10 deposed that she was quite familiar with A1 Sunil and she and the child had stayed at Sunils house for a few days sometime back. PW10 has stated that on the date of occurrence when she returned to Taras house she was told that Sunil had taken the child away by saying that PW10 would take the child back in the evening. She further deposed that she went to A1s house at 9.30 P.M. along with PW8 Tara and PW12 Dariba and collected the child from that house and the child was then lying next to A2 Ramesh who too was then sleeping. As the child was found breathless and in view of the comment blurted out by A1 Sunil, she rushed the child to the hospital.
25.  The Division Bench of the High Court expressed difficulty to believe the said version of the prosecution i.e. A1 Sunil had taken away the child from the Jhuggi of PW8 Tara. The reasons of the High Court for it are:
(1) There was no need for A1 Sunil to take the clothes and utensils even if he wanted to take the child to its mother Sharda.
(2) There is nothing to indicate that PW10 Sharda made any enquiry about the clothes and utensils.
(3) PW8 Tara could not explain as to what she understood when A1 Sunil wanted to take away the child with him.
(4) Nobody from the neighbourhood of Tara was examined to corroborate her evidence.
(5) The testimony of PW8 Tara was contradictory with the evidence of PW10 Sharda.
26.  We perused the evidence of PW8-Tara, PW10-Sharda and their neighbour PW12-Dariba. True, there are discrepancies between the evidence of those three witnesses, but we have not come across any discrepancy worth quoting for consideration as they are immaterial. Such discrepancies are common features in the testimony of any two witnesses.
27. It was too much of a strain for the judicial mind to ferret out some minor discrepancies as between the testimony of those three witnesses. Even the other reasons advanced by the Division Bench of the High Court are ex facie puerile and evidence given on oath by the bereaved mother PW10-Sharda and her other associate PW8-Tara, cannot be jettisoned on such insignificant reasons. In our view the High Court ought not to have sidelined the evidence of those three witnesses.
28.  The circumstance relating to the recovery of the bloodstained nicker is a formidable one. But the Division Bench did not attach any importance to it solely on the ground that the seizure memo was not attested by any independent witness. Here the circumstance is that when A2- Ramesh was interrogated by PW17-Investigating Officer he said: Her underwear is in my house and I can point out the place where it is. Pursuant to the said information the police recovered the nicker from the house of A2-Ramesh.
29. It was identified by PW10-Sharda as her childs nicker. When the nicker was subjected to chemical test it was revealed that the under-cloth of the child was stained with blood of O group (same is the blood group of Anuradha). The said statement of A2-Ramesh would fall within the purview of Section 27 of the Evidence Act as the fact discovered was that the nicker of the deceased was in the house of A2- Ramesh. The presumption which can be drawn therefrom is that it was A2 who removed the nicker and kept it in his house. A2 had no explanation to be offered about that circumstance.
30.  Recovery of the nicker is evidenced by the seizure memo Ext.PW-10/G. It was signed by PW10-Sharda besides its author PW17-Investigating Officer. The Division Bench of the High Court declined to place any weight on the said circumstance purely on the ground that no other independent witness had signed the memo but it was signed only by highly interested persons. The observation of the Division Bench in that regard is extracted below:
31.  It need hardly be said that in order to lend assurance that the investigation has been proceeding in fair and honest manner, it would be necessary for the Investigating Officer to take independent witnesses to the discovery under Section 27 of the Indian Evidence Act; and without taking independent witnesses and taking highly interested persons and the police officers as the witnesses to the discovery would render the discovery, at least, not free from doubt.
32.  In this context we may point out that there is no requirement either under Section 27 of the Evidence Act or under Section 161 of the Code of Criminal Procedure, to obtain signature of independent witnesses on the record in which statement of an accused is written. The legal obligation to call independent and respectable inhabitants of the locality to attend and witness the exercise made by the police is cast on the police officer when searches are made under Chapter VII of the Code. Section 100(5) of the Code requires that such search shall be made in their presence and a list of all things seized in the course of such search and of the places in which they are respectively found, shall be prepared by such officer or other person and signed by such witnesses.
33.  It must be remembered that search is made to find out a thing or document which the searching officer has no prior idea where the thing or document is kept. He prowls for it either on reasonable suspicion or on some guess work that it could possibly be ferreted out in such prowling. It is a stark reality that during searches the team which conducts search would have to meddle with lots of other articles and documents also and in such process many such articles or documents are likely to be displaced or even strewn helter-skelter.
34.  The legislative idea in insisting on such searches to be made in the presence of two independent inhabitants of the locality is to ensure the safety of all such articles meddled with and to protect the rights of the persons entitled thereto. But recovery of an object pursuant to the information supplied by an accused in custody is different from the searching endeavour envisaged in Chapter VII of the Code.
35.  This Court has indicated the difference between the two processes in the Transport Commissioner, Andhra Pradesh, Hyderabad & anr. vs. S. Sardar Ali & ors. (1983 SC 1225 1983 Indlaw SC 130). Following observations of Chinnappa Reddy, J. can be used to support the said legal proposition: Section 100 of the Criminal Procedure Code to which reference was made by the counsel deals with searches and not seizures. In the very nature of things when property is seized and not recovered during a search, it is not possible to comply with the provisions of sub-section (4) and (5) of section 100 of the Criminal Procedure Code. In the case of a seizure [under the Motor Vehicles Act], there is no provision for preparing a list of the things seized in the course of the seizure for the obvious reason that all those things are seized not separately but as part of the vehicle itself.
36.  Hence it is a fallacious impression that when recovery is effected pursuant to any statement made by the accused the document prepared by the Investigating Officer contemporaneous with such recovery must necessarily be attested by independent witnesses. Of course, if any such statement leads to recovery of any article it is open to the Investigating Officer to take the signature of any person present at that time, on the document prepared for such recovery.
37. But if no witness was present or if no person had agreed to affix his signature on the document, it is difficult to lay down, as a proposition of law, that the document so prepared by the police officer must be treated as tainted and the recovery evidence unreliable. The court has to consider the evidence of the Investigating Officer who deposed to the fact of recovery based on the statement elicited from the accused on its own worth.
38.  We feel that it is an archaic notion that actions of the police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during British period and policemen also knew about it. Its hang over persisted during post-independent years but it is time now to start placing at least initial trust on the actions and the documents made by the police.
39. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature. Hence when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable.
40. It is for the accused, through cross-examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions.
41.  In this case, the mere absence of independent witness when PW17 recorded the statement of A2-Ramesh and the nicker was recovered pursuant to the said statement, is not a sufficient ground to discard the evidence under Section 27 of the Evidence Act.
42.  Thus on consideration of the entire evidence in this case we have no doubt that the trial court had come to the correct conclusion that the two respondents were the rapists who subjected Anuradha to such savagery ravishment. The Division Bench of the High Court has grossly erred in interfering with such a correct conclusion made by the trial court as the reasons adopted by the High Court for such interference are very tenuous. Nonetheless it is difficult to enter upon a finding that the respondents are equally guilty of murder of Anuradha.
43. In the opinion of PW1 doctor the child died due to intracranial damage consequent upon surface force impact to the head. The said opinion was made with reference to the subdural haemotoma which resulted in subarachnoid haemorrage. Such a consequence happened during the course of the violent ravishment committed by either both or by one of the rapists without possibly having any intention or even knowledge that their action would produce any such injury. Even so, the rapists cannot disclaim knowledge that the acts done by them on a little infant of such a tender age were likely to cause its death. Hence they cannot escape conviction from the offence of culpable homicide not amounting to murder.
44.  In the result, we set aside the impugned judgment of the High Court. We restore the conviction passed by the trial court under Section 376 and 377 read with Section 34 of the IPC. The trial court awarded the maximum sentence to the respondents under the said counts i.e. imprisonment for life. The fact situation in this case does not justify any reduction of that sentence. We also convict the respondents under Section 304 Part II, read with Section 34 of the IPC though it is unnecessary to award any sentence thereunder in view of the sentence of imprisonment for life awarded to the respondents under the other two counts.
This appeal is disposed of accordingly.
Appeal Disposed of


State Of U.P. v Anil Singh
Supreme Court of India

26 August 1988
Criminal Appeal No.671-672 of 1980.
The Judgment was delivered by : K. J. Shetty, J.
1.  The State of U.P. and the informant have preferred these appeals with special leave, challenging the order of acquittal recorded by the Allahabad High Court in Criminal Appeal No. 2340 of 1978. Anil Singh, the common respondent in the appeals was tried for the murder of Keshav Kumar ('K-K') by the Court of Session (Non- Metropolitan area), Kanpur. He was convicted and sentenced to imprisonment for life. But on appeal, he was acquitted by the High Court.
2.  The prosecution story of the occurrence may be stated at some length.
The respondent-accused and KK were almost of equal age.
3.  They are friends as well as class mates. They were also coaccused in some minor criminal cases. The accused was of violent temperament. He used to indulge in criminal activities. His father sent him to his maternal grandfather's house at Faizabad for being better taken care of. But he used to visit often his native place i.e. Pukhrayan, where KK was residing. The accused was in the habit of demanding money from KK. At the time of Diwali festival of the year-1977, the accused asked KK to pay Rs.2,500. He wanted to purchase a revolver. It is alleged that he even threatened KK that he would be killed if the amount was not paid by November 14, 1977. November 14, is a rejoicing day for children. It is a birth day anniversary of Pt. Jawahar Lal Nehru who was the first Prime Minister of this Country. The children all over called him and still remember him as "Cha Cha Nehru". Every year his birth day is celebrated as "Children Day" throughout the country. On that 14 November 1977, local Jaycees Club arranged Bal-mela and cultural programme. It was arranged in the Normal School compound 'with sweet-meet and chat-shops. Bal-Mela went on till 7 p.m. The cultural programme was to commence at 8 p.m.
In between KK was murdered.
It is said that the accused and KK came to Bal-Mela.
4.  From there the accused went along with KK to a nearby place, that is the varandah of Dr. Diwedi's shop. There he assaulted KK with knife. Prahlad Kumar who is the eldest brother of KK and some others rushed to the spot. But the accused could not be caught. Nor KK could be saved. The accused was chased but he ran away by brandishing his knife.
5.  The fatally injured KK was seen walking a few steps and falling down in a 'Nali'. Prahlad Kumar lifted him and carried up to some distance for medical attention. But on the way near Khazanchi hotel, KK succumbed to in juries. Prahlad Kumar carried the dead body of his brother to his house. So many people followed him. The Sub-Divisional Magistrate and Tehsildar who were the guests of honour at the function also went to his house. Ramesh Chander Dube a social worker and politician was very much there. Prahlad Kumar wrote a report giving fairly all particulars of the occurrence. He took a scooter and went to Police Station Bhoginpur which is just two miles away from his house. Ramesh Chander Dube accompanied him. They lodged the report at 9.15 p.m. at the Police Station.
6.  Kaushal Chand Tripathi Sub-Inspector was then incharge of the Police Station. He was present when the report was lodged. He got the case registered. He immediately went to the scene of occurrence. He also visited the house of the deceased. He found the dead body lying on a bench. He conducted the inquest proceedings. Ex. Ka. 1 is the inquest report. He sent the dead body with Constables Aley Hasan and Trijugi Narain for post-mortem. Thereafter he recorded statements of persons. He examined witnesses including Chottey Lal (PW 2). In the course of interrogation of persons, he came across a boy called Raju. He took his statement who has been later examined as PW 3 in the case.
7.  On the following morning at 5.45 a.m., the Investigating Officer again went to the scene of occurrence. He prepared a sketch map Ex. ka. 13. He found blood stains on the furniture lying in the varandah of Dr. Diwedi's shop. He got removed two pieces of a bench (Ex. 3 & 4) and one piece of table (Ex. 5) which were stained with blood. A memo Ex. Ka. 15 was prepared in respect thereof. Similarly, he collected blood stained and unstained earth from the Nali (Ex. 6 & 7). A memo Ex. Ka. 16 was also prepared in evidence thereof. He also collected blood stained earth from the Patti under the Memo Ex. Ka. 14.
8.  The Investigating Officer then directed his officers to search and arrest the accused. But accused was not traceable in the town. The proceedings were initiated under s. 82/83 Criminal Procedure Code. On 17 November 1977, he obtained warrant of arrest (Ex. Ka. 17). The Sub-Inspector Sital Prasad was deputed to execute the warrant. On 21 November 1977 proclamation and warrant of attachment (Ex. Ka. 18 & Ka. 19) were obtained and executed properly. The property of accused was attached under Memo Ex. Ka. 20. It was only thereafter the accused appeared in the Police Station Kotwali. On 26 November 1977 he was arrested at Kotwali. Before the trial court, the prosecution in support of the case examined Prahlad Kumar (PW 1), Chhotey Lal (PW 2) and Raju (PW 3) as eye-witnesses to the occurrence. Rest of the evidence of prosecution is more or less formal. On the other side, Ramesh Chander Dube (DW 1), Karan Singh (DW 2), Balak Das (DW 3) and Shri Prasad (DW 4) were examined as defence witnesses.
9.  The trial Court upon consideration of all the material on record accepted the case made out by the prosecution. The trial Court convicted the accused for the murder of KK and sentenced him to imprisonment for life.
10.  The High Court of Allahabad set aside the conviction and sentence, and acquitted the accused. The High Court first surveyed some broad aspects of the case and reached the conclusion that the relations between the family of accused and KK were strained. The High Court then considered the evidence of eye-witnesses and disbelieved them by attaching one or the other doubt against their credibility. Prahlad Kumar (PW 1) was disbelieved on the grounds: He did not disclose the name of person who first informed him about the assault on KK. He did not disclose the name of accused to the Sub-Divisional Magistrate and Tehsildar when they came to his house. He did not ask them to call the Police and get the accused arrested. The High Court observed:
"Sub-Divisional Magistrate is incharge of a Sub-Division and has to maintain law and order. The Police ordinarily acts under his directions. In these circumstances had Prahlad Kumar seen the occurrence and the assailant he should have immediately made a complaint to the Sub- Divisional Magistrate who came up soon after the occurrence "
11.  The silence of Prahlad Kumar in this respect is clearly indicative of the fact that he had neither seen any part of the occurrence nor he had seen the assailant. Chhotey Lal (PW 2) was characterised as a chance witness. His presence at the place of occurrence was doubted with the following observations:
"Another fact which is conspicuous in his statement is that he and his 2 companions left the market at the time of sun set for their village. In the middle of November the time of setting in of the sun is about 5.30 p.m. There is dusk for about 45 minutes. Thus it appears that these three persons left the market if not at about 5.30 p.m., then alteast at about 5. 15 p.m. They could easily cover distance of 2 miles in an hour's time.
Therefore, by 7.15 p.m. they could have easily reached their village. In this circumstance it does not stand to reason that they left the market at 7.30 or 7.45 p.m. From this aspect of the matter the version given by Chhotey Lal about his presence at the time of occurrence is not fee from doubt."
12.  The testimony of Raju (PW 3) was rejected by stating that he was a child witness. that he did not figure in the FIR as an eye-witness, and his explanation for his presence at the spot was not reasonable. The High Court said:
"He has stated that his elder brother had told him to come up early and that on account of fear of being beaten by his brother he left the chabutara and proceeded towards his house. It will be noticed that he had left the Mela area with his Thela at about 7.30 p.m. It is thereafter that he again returned to the Mela area he took 10-15 minutes in shifting the chairs from the place of his shop to the dais of the drama. It is evident that just 15 minutes later he left the Mela area. Assuming for a moment that his brother had told him to come early it did not mean that he would return to the house within less than half an hour. Moreover, he did not tell the Investigating Officer that he left the Mela so soon on account of fear of his brother. We are, therefore, of the opinion that Raju has not given a reasonable explanation of his leaving the Mela area within about 15 minutes of his keeping the chairs near the place of drama. Therefore, his presence at the time of assault cannot be believed."
13.  With these and other conclusions, the High Court discarded the prosecution case.
Hence these appeals.
14.  The scope of appeals under Article 136 of the Constitution is undisputedly very much limited. This Court does not exercise its over-riding powers under Article 136 to reweigh the evidence. The Court does not disturb the concurrent finding of facts reached upon proper appreciation. Even if two views are reasonably possible, one indicating conviction and other acquittal, this Court will not interfere with the order of acquittal, [See:(i) State of U.P. v. Yashoda Nandan Gupta, AIR 1974 SC 753 1974 Indlaw SC 435 and (ii) State of A.P. v. P. Anjaneyulu, AIR 1982 SC 1598 1982 Indlaw SC 11] But this Court will not hesitate to interfere if the acquittal is perverse in the sense that no reasonable person would have come to that conclusion, or if the acquittal is manifestly illegal or grossly unjust.
15.  On late this Court has been receiving a large number of appeals against acquittals and in the great majority of cases, the prosecution version is rejected either for want of corroboration by independent witnesses, or for some falsehood stated or embroidery added by witnesses. In some cases, the entire prosecution case is doubted for not examining all witnesses to the occurrence. We have recently pointed out the indifferent attitude of the public in the investigation of crimes. The public are generally reluctant to come forward to depose before the Court. It is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. Nor it is proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable. With regard to falsehood stated or embellishments added by the prosecution witnesses, it is well to remember that there is a tendency amongst witnesses in our country to back up a good case by false or exaggerated version. The Privy Council had an occasion to observe this. In Bankim Chander v. Matangini, 24 C.W.N. 626 PC, the Privy Council had this to say (at 628):
"That in Indian litigation it is not safe to assume that a case must be false if some of the evidence in support of it appears to be doubtful or is clearly unture, since there is, on some occasions, a tendency amongst litigants to back up a good case by false or exaggerated evidence."
16.  In Abdul Gani v. State of Madya Pradesh AIR 1954 SC 31 1952 Indlaw SC 105 Mahajan, J., speaking for this Court deprecated the tendency of courts to take an easy course of holding the evidence discrepant and discarding the whole case as untrue. The learned Judge said that the Court should make an effort to disengage the truth from falsehood and to sift the grain from the chaff.
17.  It is also our experience that invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true, in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the Court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses. It is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform.
18.  In the instant case, the trial judge and the High Court have accepted the fact that the report to Police was lodged by Prahlad Kumar (PW 1) at 9.15 p.m. That means that the report disclosing the name of accused did reach the Police Station immediately after the murder. This is a positive finding in favour of prosecution. The report contains all particulars including the motive for the crime and the manner in which it was committed. It gives us the names of eye-witnesses as well. It also gives a clear picture as to what KK did after the attack and how the accused made good his escape.
19.  It was argued by Shri Frank Anthony, learned senior counsel for the accused that it would be impossible for any person to prepare such an exhaustive report and lodge the same before the Police so soon after the occurrence.
20. According to counsel, the report must have been prepared after the inquest and non-mentioning of the time of despatch of FIR to the Court would lend support to his submission. We carefully examined the material on record. We are unable to accept the submission of learned counsel. In the first place, PW 1 was not specifically cross examined on this matter. The Court cannot therefore, presume something adverse to the witness unless his attention is specifically drawn to. Secondly, the records contain unimpeachable evidence to the contrary. Apart from the records of the Police Station, the Panchayatnama (Ex. Ka. 7) to which Ramesh Chandra Duty(DW 1) has admittedly appended his signature shows that the reporting time of the crime was 9.15 p.m. DW 1 accompanied Prahlad Kumar to Police Station to lodge the report though he later defected to the defence.
21.  He is a political figure and social worker. Highly qualified too. He would not have signed the Panchayatnama if the statement therein were not true and correct.
22.  Equally there cannot be any dispute about the place of commission of crime. It was committed in front of Dr. Diwedi's shop. Portions of the blood stained furniture have been collected from the place (Ex. Ka. 15 & 14). It has been proved by the evidence of the Investigating Officer (PW 7).
His evidence remains unchallenged.
23.  If we critically examine the evidence of PW 1 there is nothing to doubt the correctness of the version given by him. He was one of the persons who organised the programme. His presence at the place was therefore quite natural. He has testified to the presence of KK going with the accused at the Bal Mela. It is an evidence of the last seen together. It is an important piece of evidence. PW 1 could not be disbelieved on the gound that he did not mention the name of accused to Sub-Divisional Magistrate and Tehsildar. Nor his evidence could be doubted on the ground that he did not seek the assistance of the said officers to secure the police help.
24.  It is unthinkable that the Sub-Divisional Magistrate and Tehsildar were not kept informed about the assailant. The crime was committed at a public place crowed by persons.
They had assembled there to witness the cultural programme.
25.  The Sub-Divisional Magistrate cancelled the cultural programme because of commission of the crime. The people would have naturally asked why the programme was cancelled? Who murdered whom and why? It is a natural human tendency in such situations. The news of the murder must have spread like a wild fire. The name of accused must have been known to everybody gathered there. It is unfortunate that the High Court overlooked these circumstances.
26.  The other reason given by the High Court to discard the evidence of PW 1 is that he did not disclose the name of person who first informed him about the murderous attack on KK. This reasoning of the High Court apparently reveals a lack of experience of man and matters. There was a big gathering at the Normal School Compound. The people were waiting to see the cultural programme. It was to commence at 8.00 PM. The time was hearing. PW 1 was at the stage as be was one of the organisers. He was then informed that his brother KK was being assaulted by the accused. The first impulse of PW 1 must have been to rush to the scene of occurrence and not to remember the name or identity of person who informed him. The place of occurrence was hardly about 25 paces from the stage set for cultural programme. PW 1 must have rushed to the place in a minute. There must have been some altercation between the accused and KK. It could have taken some time. PW 1 must have reached within that time. The medical evidence supports this version. There are as many as eight incised wounds on KK. The doctor has stated that KK could have survived 10-15 minutes after the assault and moved 15-2 paces. PW I has stated that KK went towards Nali and fell down. He along with Dhruv lifted KK from the Nali and carried him towards the clinic of Dr.Mishra. Even the defence witness Ramesh Chander has admitted that PW 1, Dhruv and others were present at the Nali where KK was lying injured. It is, therefore, quite unreasonable to hold that PW 1 could not have seen the assault on KK.
27.  It was, however, urged that there was no light in front of the shop of Dr. Diwedi and PW 1 or other witnesses could not have identified the accused. Shiv Prasad Mishra (DW 4) has been produced to testify that the street mercury light was not burning on that day. We may accept the evidence of DW 4, but we cannot accept that there was no lighting arrangement at the public function. The Sub-Divisional Magistrate and Tehsildar were present at the function. Bal Mela commencing at 7.00 PM and cultural programme at 8.00 PM could not have been arranged in darkness. The prosecution witnesss have stated that apart from the lighting arrangement at the function, there was an electric light in front of the shop of Dr. Diwedi. It is also on record that there was another light near the Khazanchi hotel. Quite natural the area must have been well-lit for the function.
28.  That apart, the accused was not a stranger to the place. He was at any rate familiar to PW 1'and his family members. There was, therefore, no scope for any mistaken identity of the accused.
29.  The reason given by the High Court for disbelieving the evidence of Chhotey Lal PW 2 is fanciful. PW 2 is a resident of the village Astiya. The village is at a distance of two miles from Pukhrayan town. It will be seen from his evidence that he along with Baijnath and Manuwa maharaj-all residents of the same village had gone to the town for their requirements. PW 2 wanted iron nails, Manuwa required vegetables and Baijnath had to purchase iron rods. After purchasing the respective goods, they proceeded toward their village. When they reached the tehsil, they came across 3- 4-5 boys who told them that there was Bal Mela and cultural programme in the Normal School. It was natural for them to stay on to see the cultural programme. They came to their grain dealer. They kept their articles at his place and after some time they started towards the Normal School at about 7.30 or 7.45 PM. When they were approaching the Khazanchi hotel, they saw the accused assaulting KK. The evidence of PW 2 receives corroboration from PW 1. He figures as an eye-witness in the FIR. He cannot, therefore be categoried as a chance witness.
30.  The accused tried to give negative evidence to show that the market in Pukhrayan town to every Monday was closed and, therefore, the presence of PW 2 was not probable. PW 2 has admitted that the market used to remain 'closed on every Monday, but the general merchandise and hardware shops are not closed. In our opinion, there is no reason to disbelieve the statement of PW 1.
31.  The third eye-witness in this case is Raju PW 3. It seems to us that he is an important witness. He had the courage to come forward to depose in favour of prosecution in spite of his father going as a defence witness. The trial court upon preliminary examination has opined that he is an intelligent boy and able to give rational answers to questions put to him. He was then a student of class IV in the Normal School. His father opened a chat-shop at the Bal Mela. PW 3 was in that shop. There is no disput on this fact.
32. According to him, after Bal Mela he arranged the chairs of his shop in front of the stage set for cultural programme. He met some of his friends and sat at the chabutara by the side of the stage. While leaving to his house, he saw a crowd by the side of Khazanchi hotel and stopped there to find out what was happening. It is quite natural for boys to peep into the crowd. He has deposed that he saw the accused hitting KK with knife, but out of fear he ran from that place. His house is situated at a distance of about 100 yards from the Mela ground. To cover that distance one cannot take much time. Nor it is necessary to give any sufficient cause for his presence at the place. One should bring to bear the knowledge and experience of life. Since he was a student of the Normal School, his presence at the place was natural. His name might not have been mentioned in the FIR, but that is understandable. PW 1 might not have remembered him or noticed him. He was in a hurry to rush to the spot to save his brother.
33.  The Investigation Officer has deposed that when he started interogating witnesses at the spot, he came across Raju who said that he had seen the incident. His statement was immediately recorded. In the Court, Raju has been cross examined at the great length. But nothing substantial has been elicited to shake his credibility. What is significant to note in this context is the attempt of th father (DW3) to destroy the credibility of the son. His father as a defence witness has stated that after the Mela they had returned to house at about 6.30PM and thereafter they did not go out of the house for the Whole night. The trial court after carefully examining the testimony of DW 3 observed that he is absolutely unreliable. It has held that the testimony of DW 3 that he alongwith his son remained in the house after 6.30 PM and slept at about 8.30 PM is unworthy of belief since their house is admittedly at a close distance from the Normal School Compound. This observation of the trial court is not unjustified.
34.  The post crime conduct of the accused cannot also be lost sight of. The plea of alibi has not been pursued. It has been proved that the accused was not available in the town after the occurrence till 34 November 1977. It is on record that the accused could not be traced and proceedings under sec. 82/83 Cr. Penal Code were initiated.
35.  The warrant of arrest issued against the accused returned unserved. There-after proclamation was made and his property was attached. That was on 23 November 1977. He appeared on the next day in the Police Station Kotwali. That has been proved by the general diary entry (Ex.Ka. 22) of the said Police Station.
36.  It may be noted that the investigation in this case was conducted without loss of time. Since the murder was committed at a public place where the Sub-Divisional magistrate and Tehsildar were present, the Investigating Officer must have been keen to arrest the accused immediately. That was perhaps the reason why he took proceedings under sec. 82/83 Cr.P.C. We must really appreciate the proper and prompt investigation made in this case.
37.  We have given our anxious consideration to all material facts and circumstances of the case. It seems to us, that the decision of the High Court cannot be supported.
38.  In the result, we allow these appeals, set aside judgment of the High Court and rstore that of the trial court. The conviction and sentence awarded aginst the accused are restored. He shall undergo the remaining part of sentence.
Appeals allowed


Mohd. Iqbal Ahmed v State of Andhra Pradesh
Supreme Court of India

18 January 1979
Criminal Appeal No. 194 of 1973 (Appeal by Special Leave from the Judgment and Order dated 3-4-1973 of the Andhra Pradesh High Court in Criminal Appeal No. 703/71)
The Judgment was delivered by : Syed Murtaza Fazalali, J.
1.  In this appeal by special leave the appellant has been convicted under section 161 I.P.C. and section 5(2) read with section 5(1)(d) of the Prevention of Corruption Act and sentenced to rigorous imprisonment for one year and a fine of Rs. 250/- on each count.
2.  The appellant had been convicted by Special Judge but on appeal by the State to the High Court the High Court reversed the judgment of acquittal and convicted the appellant as indicated above. According to the prosecution the appellant is said to have struck a bargain for taking a bribe of Rs. 125/- which he received on the 15th of July, 1968 in the presence of P.Ws. 1 and 3. On receiving the signal the raiding party appeared on the scene and the hand of the accused was dipped in water containing phenopthelien solution which showed that he touched the notes. The defence of the appellant was that he never demanded any bribe and that the notes were thrust into his pocket. It is not necessary for us to dwell on the merits of the case because, in our opinion, the appeal must succeed on a short point of law, raised by Mr. A. N. Mulla, learned counsel for the appellant. It was argued that the sanction under section 6 of the Prevention of Corruption Act produced in this case does not reveal the facts constituting the offence and, therefore, there is no evidence to show on what materials the sanctioning authority applied its mind and granted the sanction. The Resolution of the Standing Committee granting the sanction is Exh. P-16 and is dated 31-3-1969, and runs as follows:
"As per note of the Commissioner, M.C.H. the Standing Committee unanimously accords sanction for prosecution of Sri Mohd. Iqbal Ahmed (in the scale of 110-180) Section Officer of Town Planning Section (Under suspensions) in a competent Court for the offence mentioned in the note of the Commissioner M.C.H., dated 18-1-1969 so as to enable the Commissioner to sign the prosecution order and send it to the Director, Anti-Corruption Bureau for taking further action at the earliest".
3.  A perusal of the Resolution of the Sanctioning Authority clearly shows that no facts on the basis of which the prosecution was to be sanctioned against the appellant are mentioned in the sanction nor does this document contain any ground on which the satisfaction of the Sanctioning Authority was based and its mind applied. This document merely mentions that the sanction has been given on the basis of a note of the Commissioner, Municipal Corporation which appears to have been placed before the Committee. It is obvious, therefore, that this note, if any, must have come into existence either on 31-3-1969 or at any date prior to this. The prosecution could have proved the facts constituting the offence which were placed before the Sanctioning Authority by producing the note at the trial. But no such thing has been done. What the prosecution did was merely to examine two witnesses P.Ws. 2 and 7. P.W. 2 has produced the order implementing the Resolution of the Sanctioning Authority which is Exhibit P- 10 and is dated 21st April, 1969, that is to say after the sanction was given. This document no doubt contains the facts constituting the offence but that does not solve the legal issues that arise in this case. It is incumbent on the prosecution to prove that a valid sanction has been granted by the Sanctioning Authority after it was satisfied that a case for sanction has been made out constituting the offence. This should be done in two ways; either (1) by producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction and (2) by adducing evidence aliunde to show that the facts placed before the Sanctioning Authority and the satisfaction arrived at by it. It is well settled that any case instituted without a proper sanction must fail because this being a manifest difficulty in the prosecution, the entire proceedings are rendered void ab initio. In the instant case no evidence has been led either primary or secondary to prove as to what were the contents of the note mentioned in Exhibit P-16 which was placed before the Sanctioning Authority. The evidence of P.W. 2 or P.W. 7 is wholly irrelevant because they were not in a position to say as to what were the contents of the note which formed the subject matter of the sanction by the Standing Committee of the Corporation. The note referred to above was the only primary evidence for this purpose. Mr. Rao vehemently argued that although the Resolution, Exh. P-16 does not mention the facts, the Court should presume the facts on the basis of the evidence given by P.W. 2 and the order implementing sanction which mentions these facts. This argument is wholly untenable because what the Court has to see is whether or not the Sanctioning Authority at the time of giving sanction was aware of the facts constituting the offence and applied its mind for the same and any subsequent fact which may come into existence after the resolution granting sanction has been passed, is wholly irrelevant. The grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to government servants against frivolous prosecutions and must therefore be strictly complied with before any prosecution can be launched against the public servant concerned.
4.  It was next contended by Mr. Rao that in view of the presumption which is to be drawn under section 4 of the Prevention of Corruption Act, even if, no facts are mentioned in the Resolution of the Sanctioning Authority it must be presumed that the Sanctioning Authority was satisfied that the prosecution against the appellant should be launched on the basis of the presumption that the accused had received a bribe. With due respects to the learned counsel, this argument seems to be wholly mis-conceived. In the first place, there is no question of the presumption being available to the Sanctioning Authority because at that stage the occasion for drawing a presumption never arises since there is no case in the Court.
5. Secondly, the presumption does not arise automatically but only on proof of certain circumstances, that is to say, where it is proved by evidence in the Court that the money said to have been paid to the accused was actually recovered from his possession. It is only then that the Court may presume the amount received would be deemed to be an illegal gratification. So far as the question of sanction is concerned this arises before the proceedings come to the Court and the question of drawing the presumption, therefore, does not arise at this stage. Lastly, it was submitted by Mr. Rao that he should be given a chance to produce the materials before the Court to satisfy that the Sanctioning Authority had duly applied its mind to the facts constituting the offence. We are, however, unable to accede to this prayer which has been made at a very late stage. The prosecution had been afforded a full and complete opportunity at the trial stage to produce whatever material it liked and it had chosen to examine two witnesses but for reasons best known to it did not produce the note which formed the subject matter of the Resolution of the Sanctioning Authority-Exh. P-16. It is well settled that in a criminal case this Court or for that matter any court should not ordinarily direct fresh evidence to fill up a lacuna deliberately left by the prosecution. The liberty of the subject was put in jeopardy and it cannot be allowed to put in jeopardy again at the instance of the prosecution which failed to avail of the opportunity afforded to it.
6.  For these reasons, therefore, we are satisfied that the present prosecution was launched without any valid sanction and, therefore, the cognizance taken by the Special Judge was completely without jurisdiction. The appeal is accordingly allowed. The judgment of the High Court is set aside and convictions and sentences passed on the appellant are quashed. The appellant will now be discharged from his bail bonds.
Appeal allowed.