CASE NO.: Appeal (crl.) 656 of 1990 PETITIONER: STATE OF U.P. RESPONDENT: SIKANDER ALI AND ORS. DATE OF JUDGMENT: 03/04/1998 BENCH: M.M. PUNCCHI CJ & K.T. THOMAS & S. RAJENDRA BABU JUDGMENT:
JUDGMENT
1998 (2) SCR 658
JUDGMENT
Thomas, J.
1. The place of occurrence of this double murder case is within the
vicinity of the Sessions Court of Allahabad. Victims of the murder were
inter se brothers-in-law and the alleged murderers were also like that. One
of the victims was facing trial in another murder case at the same Sessions
Court and with his murder the said trial stood abated in that case. But the
trial in the present case passed through all the stages and the sessions
court convicted the two accused of murder and death penalty was imposed on
them. The High Court of Allahabad on appeal acquitted them both. So the
State of U.F. has come up with this appeal by special leave.
2. Murder for murder was the motivation for the occurrence as per the
prosecution case. Synopsisi of this case is that a man named Pappu (who was
the brother of first accused Sikandar Ali) was slain about a year prior to
the incident in this case, and police had challenged Shamsher Singh allies
Niley (one of the deceased) as an accused in that murder case along with
some others. That case was committed to the court of sessions and the trial
was proceeding before the sessions court. There was a posting of the case
on 16.7.1986 on which day the deceased Shamsher Singh went to the sessions
court in the company of his brother-in-law Ramji Tripathi (the other
deceased in this case), his brother Avtar Singh (PW-1) and father Harnam
Singh (PW-2). As the court adjourned the case to another date the parties
and those who escorted them dispersed from the precincts of the court.
While the two deceased rode on a scooter PW-1 and PW-2 were on foot. They
first passed the Treasury Gate and when the scooter turned to the right
side of the road the two assailants, who were in ambush behind the compound
wall, stretched up and fired from their pistols at the scooters and his
pillion rider. Both fell down on the road and the appellants fled form the
scene adn escaped in spite of a chase made by Avtar Singh.
3. Shamsher Singh died at the spot. The other injured (Ramji) was taken to
the hospital in a police jeep but he too did not survive long due to fatal
bullet injuries sustained. PW-1 Avtar Singh went to the nearby police
station and lodged FIR at 1.15 P.M.
4. The trial court, relying on the testimony of PW-1 and PW-2 came to the
conclusion that assailants of the two victims were the accused in this
case. Hence, they were convicted and sentenced to death. Reference made by
the Sessions Judge for confirmation of the death sentence was considered
along with the appeals filed by the two accused and by the judgement under
appeal learned Judges of the High Court have set aside the condition and
sentence.
5. High Court declined to rely on the testimony of PW-1 and PW-2 mainly on
the strength of the evidence collected by the High Court under Section 391
read with section 311 of the CrPC. Such a course was adopted by the High
Court when it noticed that a police jeep had reached the spot of occurrence
soon after the incident in which vehicle injured Ramji was rushed to the
nearest hospital. Learned Judges therefore felt that examination of the
said police officer was of vital importance in this case particularly for
appreciating the evidence of the eye-witnesses.
6. Shri Ram Praskash Tandon, the 3rd Field Officer (Police) was thus
summoned by the High Court for examination. In his evidence Shri Tandon
said that while perambulating around the area he reached the spot and found
two injured persons lying on the road, one of them was already dead and the
other was not yet dead and that the surviving person was rushed to Sir Tej
Bahaudar Sapru Hospital and then he returned to the Place of occurrence
again.
7. High Court thought if PW-1 Avtar Singh who is the real brother of one of
the victims and PW-2 Harnam Singh being his father were present at the
scene it would not have escaped the notice of the police officer. Learned
Judges further pointed out that as PW-2 Harnam Singh was questioned by PW-4
(the investigating officer) only after twenty four days of the occurrence
much of the evidentiary value of his testimony has eroded. Consequently,
the High Court declined to act on the testimony of PW-1 and PW-2.
8. Learned counsel for the State of U.P. contended that evidence of the two
eye-witnesses should have been assessed on its own worth and the High Court
has committed a grave error in knocking it off on the fragile premise that
the police officer did not identify them at the spot.
9. Shri Ram Prakash Tandon has further stated in his evidence that he
happended to stop at the place of occurrence as he found a crowd thronging
there and he learned that two persons were shot by two killers. After
rushing the injured, who was still alive to the hospital he came back to
the scene and by that time the local police were making Panchnama. Shri
Tandon said that he did not bother himself to know whether relatives of the
injured were present or whether any one was weeping at that place. Nobody
told him the name and addresses of the injured, but he heard then the dead
person was Sardarji and name of the injured was Ramji whom he carried to
the hospital and his killer was one Sikandar.
10. How could it be inferred from the evidence of Shri Tandon that PW-1
Avtar Singh and PW-2 Harnam Singh could not have seen the occurrent? It
must be remembered that Shri Tandon did not know those persons earlier and
hence there is not question of his identifying them at the spot. Secondly
he briskly got himself engaged in the task to save the remaining injured.
If so. it was not the occasion to waste his time for enquiring as to who
among the crowd would have been the kith and kin of the vitims.
11. Failure of the police officer to examine PW-2 Harnam Singh for twenty
four days should not has been used to drop his evidence out. Investigating
officer said that he was unable to question PW-2 earlier as he himself was
very much involved in other duties relating to the upkeep of law and order.
This Court has repeatedly cautioned that lapse of the investigation should
not prevent the court from accepting the eye-witnesses’ evidence it it is
otherwise truthful.
12. It has been observed in Ranbir and others v. State of Punjab, : [1974]
1SCR102 that “the question of delay in examine a witness during
investigation is material only if it is indicative and suggestive of some
unfair practice by the investigating agency for the purpose of introducing
a got up witness to falsely support the prosecution case.” In Ganseh Bhavan
Patal and another v. State of Maharashtra, : 1979CriLJ51 a three-Judge
Bench of this Court observed that delay in questioning a witness by itself
cannot amount to any serious infirmity in the prosecution case. “But it may
assume such a character if there are concomitant circumstances to suggest
that the investigator was deliberately marking time with a view to decide
about the shape to be given to the case and the eye witness to be
introduced.”
13. While dealing with the evidence of PW-1 we cannot over look a striking
feature that his version regarding occurrence gained entry in police
records within an hour of occurrence. Ex. K. 17 is the FIR which was
recorded at 1.15 P.M. on 16.7.1986. There is not even a suggestion from the
defense side that the said FIR was not prepared at the said time. PW-1
Avtar Singh has given vivid details of the occurrence including full
identity of the assailants in the FIR. He has also mentioned therein that
his father PW-2 Harnam Singh was also with him then.
14. No Court can afford to ignore the aforesaid strong circumstances while
evaluating the evidence of PW-1 Avtar Singh and PW-2 Harnam Singh. They are
greatly overriding factors vis-a-vis the omission on the part of Shri
Tandon to identify any kith and kin of the deceased among the crowd.
15. That apart, when PW-1 and PW-2 said that they too went to the sessions
court along with Shamsher Singh as the case was posted on that day the
court must bear in mind that it is not an unusual practice in this country
for male members of the family of the accussed to accompany him while going
to the court to face trial in criminal cases. PW-1 and PW-2 said that they
also went to the sessions court along with his son. This is a very probable
version.
16. According to us, the High Court committed a serious error in using the
omission of Shri Ram Prakash Tandon, the Field Officer (Police) in noticing
the kith and kin of the deceased in the crowd for jettisoning the strong
evidence of PW-1 and PW-2. The sessions court has rightly believed their
testimony and the High Court should not have disturbed that finding.
17. Resultantly, we upset the order of acquittal and restore the conviction
of the two accused of the offence under Section 302 IPC. But we do not
think that there is any warrant for awarding death penalty to the accused.
Ends of justice would be met by sentencing them each to imprisonment for
life. Accordingly, we sentence each of the accused to imprisonment for
life. We direct the sessions court to resort to such steps as are necessary
to put the accused back in jail to undergo the sentence.
18. The appeal is disposed of accordingly.