CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
16 of 1950. Appeal by special leave from the judgment and
order dated 8th May, 1947, of the High Court of Judicature
at Allahabad (Sankar Saran and Akbar Hussain JJ.) in Crimi-
nal Appeal No. 80 of 1946.
S.P. Sinha (G.C. Mathur, with him), for the appellant.
K.B. Asthana, for the respondent.
1951. December 20. The Judgment of the Court was deliv-
ered by
FAZL ALl J.--This is an appeal against a judgment of the
High Court of Judicature at Allahabad reversing the decision
of the Sessions Judge of Aligarh in a criminal case. The
appellants were tried by the Sessions Judge on charges under
section 302 read with section 149, section 148, sections 325
and 326 read with section 149, and section 201 of the Indian
Penal Code, but were acquitted. On appeal by the State
Government, the High Court reversed the Sessions Judge's
decision, and convicted the appellants and sentenced them to
transportation for life under section 302 read with section
149, to five years' rigorous imprisonment under sections 325
and 326 read with section 149, and to two years' rigorous
imprisonment under section 147 of the Indian Penal Code, all
the sentences being made to run concurrently. The appellants
thereafter applied to the Privy Council for special leave,
which was granted on the 28th October, 1947.
The facts which were put before the court on behalf of
the prosecution may be briefly stated as follows. There is a
plot No. 518 in Nagaria Patti Chaharum, village Shahgarh in
the district of Aligarh which is about 30 bighas in area and
is known as the "teesa" field. This plot was the "sir" land
of several landlords including Mst. Bhagwati Kuer and Ratan
Singh and had been let out to certain tenants. In 1944,
Mst. Bhagwati Kuer, Ratan Singh and their co-sharers filed a
suit for the ejectment of the tenants, and the
suit was decreed. On the 7th June, 1945, possession over the
plot was delivered by the Amin to Surajpal Singh, the first
appellant, who was the mukhtar-i-Am of Mst. Bhagwati Kuer.
It was contended on behalf of Surajpal Singh that he took
possession on behalf of all the co-sharers, but certain
statements made by Ratan Singh in his evidence do not sup-
port this contention. However that may be, it appears that
on the 17th June, 1945, Ratan Singh reported to the police
that he had sent his labourers to irrigate the "teesa"
field, and while they were irrigating it Surajpal Singh and
certain other persons came and tried to stop the irrigation
and damaged the ploughs of Ratan Singh. On the 18th June, at
about 7 A.M., the occurrence which is the subject-matter of
the present trial took place. The prosecution version of the
occurrence was that while Ratan Singh's labourers were
working in the field under the supervision of one Behari
Singh, the appellants with many other persons came armed
with guns, spears and lathis, and some of the members of the
appellants' party entered the field, cut off the nosestrings
of the bullocks and abused and assaulted the labourers, most
of whom ran away. Thereupon, Deva Sukh, who was there to
supply water to the labourers, protested and was beaten with
lathis. At that point of time, Behari Singh and 10 to 15
persons came and fight took place between the parties.
During the fight, one of the accused persons, Rajendra
Singh, a young lad, fired his gun twice in the air, and
thereafter Surajpal Singh took the gun from him and fired
two shots hitting Nawab Mewati, who died instantaneously,
and Behari Singh, who died later in the day. Three other
persons, Zorawar, Rajpal and Lakhan also received gun-shot
injuries. Sometime later, Surajpal Singh along with the
other three appellants came to the spot and removed the dead
body of Nawab in a cart. The body was thrown into a river
and was recovered on the 20th June, 1945. After investiga-
tion 25 persons including the appellants were sent up for
trial. After hearing the evidence in the case, the Ses-
sions Judge delivered judgment on the 20th February, 1946.
He held that the "teesa" field was in the possession of
Surajpal Singh, that Behari Singh and Ratan Singh's men were
aggressors and wished to take forcible possession of the
field, that when resisted they had attacked the appellants'
party, that the person who fired the gun had done so in
self-defence and not with a view to killing Behari Singh and
Nawab Mewati, and that the evidence adduced by the prosecu-
tion was so unsatisfactory that it was unsafe to convict the
accused upon it. As to the charge of concealing evidence of
the offence of murder by the removal of the dead body of
Nawab, the Sessions Judge expressed the opinion that in
order to convict a person on that charge it must be proved
that the offence, the evidence of which the accused is
alleged to have caused to disappear had actually been com-
mitted, but since in the present case the charge of murder
was not proved the accused could not be convicted for having
caused disappearance of evidence connected with it. The
Judge also held that the evidence being unreliable the
charge under section 201 of the Indian Penal Code had not
been established beyond reasonable doubt.
The High Court delivered its judgment on the 8th May,
1947, allowing the appeal of the State Government. Shortly
stated, the conclusion arrived at by the High Court was that
Ratan Singh had as much right to the possession of the field
as Bhagwati Kuer, that both parties were trying to take
exclusive possession of the field, that both parties were
prepared for all contingencies to vindicate and enforce
their rights, and hence the question of possession was
wholly immaterial and no right of private defence could be
successfully pleaded by the appellants.
A perusal of the two judgments before us shows that
while the Sessions Judge took great pains to discuss all the
important aspects of the case and to record his opinion on
every material point, the learned Judges of the High Court
have reversed his decision without displacing the very
substantial reasons given by him in support of his conclu-
sion. The difference in the treatment of the case by the
two courts below
is particularly noticeable in the manner in which they have
dealt with the prosecution evidence. We find that while the
Sessions Judge took up the evidence of each witness and
recorded his finding with regard to his credibility after
discussing the minutest details of the evidence, all that
the learned Judges of the High Court have to say about the
prosecution evidence as a whole is as follows :-
In Prag Dat's case their Lordships observed: usual in
cases of this kind the police have found it difficult to
secure independent testimony of what did take place. Those
of the villagers who were present and looking on would
probably by sympathy and bias be so attached to one or other
of the disputing parties that it would be hopeless to get
disinterested and reliable evidence from them.'
This difficulty the police find in most riot cases and
this case is not free from it. But as in Prag Dat's case,
in this case there are four witnesses, viz., Deo Sukh, Rori
Singh, Ram Singh, and Ratan Singh, who could be characte-
rised as independent witnesses and they support the case for
the prosecution, in the main. In our judgment their testimo-
ny is on the whole worthy of credence and sufficient to
justify the conviction of the respondents.
In view of the summary treatment of the evidence by the
High Court, we had to read the evidence adduced in the case
with great care, and what we find is that the four witness-
es, whose evidence has been accepted by the High Court, are
just the persons against whom very serious criticism was
offered by the Sessions Judge. Of these witnesses, Ratan
Singh not being an eye-witness may be ruled out. As to the
remaining witnesses, we are on the whole inclined to agree
with the view expressed by the Sessions Judge. According to
the Sessions Judge, the manner in which Deva Sukh was
brought into the picture and the circumstances attendant on
his evidence, furnish strong reasons. for rejecting the
prosecution version. What has been held is that the whole
case of the prosecution
that Deva Sukh had received injuries in the course of the
alleged occurrence was false and his injuries "were made up
so as to create evidence of private defence" to be utilized
by the prosecution to meet the charge of having caused
injuries to the members of the appellants' party. It has
been established that at least four persons on the side of
the accused had received injuries. Mahindarpal had received
no less than 16 injuries, and his condition was serious for
some time. Karan Singh had 12 injuries, one of which was
grievous. Hari Singh had received 7 injuries including a
grievous injury, and Nikka Singh also was injured, his
injury having been noticed by the investigating sub-inspec-
tor.
In the prosecution evidence, it was stated that many of
the accused persons were armed with lathis and had used
them, and it would be strange if it was not proved that any
of the persons on their side had any injuries attributable
to lathis. It has been established that the four injured
persons of Ratan Singh's party, viz., Rajpal Singh, Lakhan
Singh, Behari Singh and Zorawar Singh, had only gun-shot
wounds. A serious question which arises in this case is at
what stage the gun was used, and whether it was used in
self-defence after the members of the appellants' party were
assaulted with lathis or it was used before they were as-
saulted.
The prosecution witnesses had to admit that at first a
gun was fired twice in the air and then the actual firing
took place. This version of the firing lends support to the
defence story that the gun was fired in self-defence when
Ratan Singh's men attacked members of the accused's party.
The Sessions Judge has expressed the view that in order to
meet the defence case the prosecution introduced the story
of Deva Sukh having been assaulted with a lathi in the first
instance so as to make the appellants' party the aggressors,
it being the prosecution case that Behari Singh and his men
had used lathis in order to defend themselves. In order to
resolve the conflict in the cases of the parties and to get
at the true picture, the
Sessions Judge went very minutely into the question as to
whether there was trustworthy evidence about Deva Sukh
having received any injury at all in the occurrence. It
seems to us that there is a formidable array of circum-
stances to support the conclusion ultimately reached by the
Sessions Judge. It appears that in the first information
report there is no reference to Deva Sukh or to the injuries
said to have been received by him. The Sessions Judge has
pointed out that there was a considerable interval of time
between the occurrence and the lodging of the first informa-
tion report, and therefore it is surprising that the most
important incident of the occurrence and the name of the
most important witness was omitted in the report. Again, no
reference was made to Deva Sukh or to his injuries in the
dying declaration of Behari Singh which was recorded by one
Dr. Shankar Deo, and also in that of Lakhan Singh. The
Sessions Judge has further pointed out that the prosecution
witnesses, Chokha, Prempal, Cheta and Gangola Singh, who
were examined by the investigating officer on the 18th June,
did not also refer to Deva Sukh. The investigating sub-
inspector was informed of the injuries on Deva Sukh and his
presence at the time of the occurrence for the first time on
the 19th June, 1945, and Deva Sukh's explanation for not
appearing before him at the earliest opportunity was that he
was frightened and had concealed himself in his house for
about two days and had directed his relations not to inform
the police of his presence. He also stated that on his
arrival in his house after the occurrence he did not inform
his relations of what had happened. Some of these matters
might have been overlooked if there had been convincing
evidence about his having actually received injuries, but we
are satisfied that such evidence as is before us is extreme-
ly unsatisfactory and suspicious and we entertain grave
doubts as to whether Deva Sukh received any injuries at all.
Dr. Shanker Deo, who examined Deva Sukh, is a retired
Sub-Assistant Surgeon practising in Kauiraganj, which is
not far from village Shahgarh.
He admits that he had known Ratan Singh since his childhood,
and when he was a child he used to be taught at the house of
Ratan Singh by a teacher employed by Ratan Singh's uncle.
He has stated that Deva Sukh had two bruises across the back
of the middle of the left forearm, and one of them was
grievous since the left ulna was fractured. He further says
that at the time of examination he did charge fees from Deva
Sukh, that he was brought to him three days after the other
injured persons, that when the latter group of persons came
to him none of them told him that there was one more injured
person to be examined, and that Deva Sukh was brought to him
by Ratan Singh's servant. There are unsatisfactory fea-
tures in the evidence of this doctor relating to other
matters which need not be referred to, but what is somewhat
remarkable is that though there is a District Board Hospital
at Jalali about four miles from Kauirganj, Deva Sukh did not
obtain an injury certificate from the doctor in charge of
that hospital. Deva Sukh says that he did go to that hospi-
tal to have his injuries attended to, but there is no evi-
dence to corroborate this. These facts as well as a number
of other facts relied upon by the Sessions Judge do go to
support his theory, and once it is held that the prosecution
has to rely on fabricated evidence, it throws doubts on the
entire case.
From the record, it appears that Surajpal Singh was the
person who had been taking an active interest in the eject-
ment suit, and he was admittedly spending money. Ratan Singh
says that he had also paid money to Surajpal Singh towards
the expenditure, but this is not probable because he and
Surajpal had been on bad terms. It is admitted that Suraj-
pal is the person to whom the Amin gave possession of the
land, but in spite of this fact, Ratan Singh's men started
operations on the land ignoring Bhagwati Kuer, which Ratan
Singh had no right to do, even assuming that the land was
joint property. If Behari Singh and the other men sent by
Ratan Singh were trying to take exclusive possession of the
land and had started
operations thereon, Surajpal Singh had every right to pro-
test, and if his men were beaten first, of which there are
strong indications in the case, he was entitled ' to repel
the attack in exercise of the right of private defence.
That Ratan Singh had made ample preparations through
Behari Singh is quite clear. Admittedly, there were a
number of persons armed with lathis present at the scene on
his behalf including outsiders like Nawab Mewati, who is
said to have been a well-known fighter, Zorawar and others.
As regards the remaining two witnesses, to whom the High
Court has made reference, viz., Rori Singh and Pransukh, it
seems to us that the High Court has overlooked the comments
made by the Sessions Judge upon their evidence, some of
which are of considerable force. What has impressed us is
that they were not independent witnesses and were not
mentioned in the first information report as witnesses to
the occurrence, and they were examined by the sub-inspector
as late as the 20th and 21st June, 1945. After reading the
two judgments, we see no reason why the opinion of the
Sessions Judge regarding these witnesses should not receive
the weight which should normally be attached to that of the
trial court.
It is well-established that in an appeal under section
417 of the Criminal Procedure Code, the High Court has full
power to review the evidence upon which the order of acquit-
tal was founded, but it is equally well-settled that the
presumption of innocence of the accused is further rein-
forced by his acquittal by the trial court, and the findings
of the trial court which had the advantage of seeing the
witnesses and hearing their evidence can be reversed only
for very substantial and compelling reasons.
On the whole, we are inclined to hold that the Sessions
Judge had taken a reasonable view of the facts of the case,
and in our opinion there were no good reasons for reversing
that view. The assessors with whose aid the trial was held,
were unanimously of the opinion that the accused were not
guilty, and
though 25 persons were placed on trial on identical evi-
dence, the State Government preferred an appeal only against
5 of them on the sole ground that the acquittal was against
the weight of evidence on the record.
In the result, we allow the appeal, set aside the con-
viction and sentences of the appellants and acquit them of
all the charges.
Appeal allowed.
Agent for the appellant: P.K. Chatterjee.
Agent for the respondent: I. N. Shroff for P.K.
Bose.