{"id":29345,"date":"2001-09-28T00:00:00","date_gmt":"2001-09-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kalyan-ors-vs-state-of-u-p-on-28-september-2001"},"modified":"2018-09-16T17:51:22","modified_gmt":"2018-09-16T12:21:22","slug":"kalyan-ors-vs-state-of-u-p-on-28-september-2001","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kalyan-ors-vs-state-of-u-p-on-28-september-2001","title":{"rendered":"Kalyan & Ors vs State Of U.P on 28 September, 2001"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Kalyan & Ors vs State Of U.P on 28 September, 2001<\/div>\n
Author: Sethi<\/div>\n
Bench: M.B. Shah, R.P. Sethi<\/div>\n
           CASE NO.:\nAppeal (crl.) 418  of  1998\n\n\n\nPETITIONER:\nKALYAN & ORS.\n\n\tVs.\n\nRESPONDENT:\nSTATE OF U.P.\n\nDATE OF JUDGMENT:\t28\/09\/2001\n\nBENCH:\nM.B. Shah & R.P. Sethi\n\n\n\n\nJUDGMENT:\n<\/pre>\n
SETHI,J.\n<\/p>\n
\tThe appellants along with seven others were charged for having
\ncommitted the offences punishable under Sections 302, 307, 147, 148
\nread with Sections 149 and 120B of the Indian Penal Code for committing
\nthe murders of Mulaim Singh, Munshi Singh, Itwari and Ram Murti.  One
\nof the accused persons, namely, Pothi died during the pendency of the
\ntrial.\tAll the accused persons, facing the trial, were acquitted by
\nthe trial court.  In the appeal filed by the respondent-State, the High
\nCourt convicted nine accused persons for various offences and sentenced
\nthem to imprisonments which ranged upto the imprisonment for life.  Two
\nof the accused persons, namely, Brijpal Singh (A10) and Beer Sahai
\n(A11) were acquitted.  Out of the 9 convicted persons the appellants
\nwho were arrayed as accused Nos.2,3,4,5 and 6 in the trial court have
\npreferred this appeal.\tThe Accused Nos.A7, A-8 and A-9 did not file
\nany appeal against the judgment of conviction and sentences and are
\nreported to have died.\n<\/p>\n
\tThe present appeal has been filed, as a matter of right, under
\nSection 2(A) of the Supreme Court Enlargement of Criminal Appellate
\nJurisdiction Act, 1971.\t It has been contended on behalf of the
\nappellants that the impugned judgment being contrary to law and facts
\ndeserves to be set aside.  It is argued that the High Court was not
\njustified in interfering with the well considered order of acquittal
\npassed by the trial court and the prosecution has miserably failed to
\nconnect the accused with the commission of the crime.  The prosecution
\nwitnesses were not only interested and biased but had deposed contrary
\nto the prosecution case as initially discussed in the First Information
\nReport.\t The material contradictions in the deposition of the witnesses
\ncannot be reconciled, making their deposition untrustworthy.  It is
\nfurther contended that as the prosecution had failed to prove the
\ncharges beyond doubt, the appellants were entitled to the benefit of
\nall reasonable doubts.\n<\/p>\n
\tIn the present case occurrence is stated to have taken place on
\n27th June, 1977 at 5.00 p.m. in Village Khiria Madhukar, Police Station
\nUsehat, District Badayun(U.P.), the FIR of which was lodged by Bhawar
\nPal Singh (PW1) at about 10 p.m. in the police station which was at a
\ndistance of about 15 kms. from the place of occurrence.\t The deceased
\npersons, namely, Mulaim Singh is the father, Munshi Singh, uncle and
\nItwari, brother of the first informant and Ram Murti is stated to be an
\nacquaintance of the family.  The prosecution story, as narrated by the
\nInformant (PW1) in the First Information Report is that about one year
\nprior to the date of occurrence one Budhpal Singh was murdered and in
\nconnection with that case his father Mulaim Singh, his uncle Munshi
\nSingh and others were facing the trial.\t It was alleged that the said
\ncase was filed on account of the old enmity of the deceased with one
\nPt.Hori Lal (A1).  About 13-14 days prior to the date of occurrence the
\nsaid Pt.Hori Lal,  along with Ram Nath and others entered the house of
\none Lal Janki Prasad of the same village and assaulted him.  Pt.Hori
\nLal was the leader of a gang and wanted to kill Mulaim Singh and Munshi
\nSingh.\tOn the date of occurrence the informant, his father Mulaim
\nSingh, his cousin Radhey, Pt.Ram Saran, Latoori and Ram Murti came from
\nVillage Sakhrauli to their house where Munshi Singh, Itwari, Jasbhoo
\nSingh and Ram Dayal were already present.  At about 5 p.m. 11 named
\naccused persons along with one unknown person, at the instance of
\nPt.Hori Lal, armed with guns, Ballams, kantas and lathis reached there.
\nTo save their lives Mulaim Singh and others went inside their house and
\nclosed the door.  The accused persons encircled the house of the
\ninformant.  Mulaim Singh went on the roof of the house along with his
\ngun. Munshi Singh, Itwari and Ram Saran along with their guns followed
\nhim.  The accused persons started firing from all the four sides.
\nMulaim Singh, Munshi Singh and Itwari were killed on the roof, whereas
\nRam Murti, who was assaulted with lathi, ballam and kantha on the
\nground, died later on.\tThe accused persons also took away the one
\nbarrel licensed gun of Mulaim Singh.  On the FIR lodged by Bhawar Pal
\nSingh (PW1), the investigation commenced.  The dead bodies of the
\ndeceased persons were seized, accused arrested and after recording the
\nstatement of witnesses, formal charge-sheet filed against the accused
\npersons.\n<\/p>\n
\tTo prove their case, the prosecution examined 15 witnesses.
\nBhawar Pal Singh (PW1), Ram Saran (PW4), Ram Dayal (PW6) and Latoori
\n(PW6) claimed to be eye-witnesses of the occurrence.  Dr.G.D. Bhaskar
\n(PW2) was produced to prove the injuries sustained by Ram Saran (PW4).
\nS.I. Onkar Singh (PW3) proved the registration of the FIR and G.D.
\nentry about the sending of 6 sealed bundles of the case property to the
\nSadar Malkhana.\t Dr.M.C. Sharma (PW7) is the doctor who had conducted
\nthe post-mortem on the dead bodies of Munshi Singh and Itwari.
\nConstable Yogendrapal Singh (PW8), Constable Gur Prasad (PW9) are
\nformal witnesses who took the dead body of Ram Murti to the mortuary
\nfor post mortem.  Police Constable Devinder Kumar (PW10) is a formal
\nwitness.  Dr.N.P. Singh (PW11) was examined to prove the injuries
\nsustained by Ram Murti deceased and Ram Dayal, injured.\t PW15 is the
\ninvestigating officer and the other witnesses are of only formal
\nnature.\n<\/p>\n
\tAs noted earlier, the trial court vide its judgment dated
\n19.8.1978 acquitted the accused persons and the High Court vide the
\njudgment impugned convicted 9 out of 11 accused persons against whom
\nthe State had filed the appeal.\n<\/p>\n
\tWe have heard the learned counsel of the parties at length and
\ncritically examined the testimony of all the witnesses particularly the
\nstatements made by PWs 1, 4, 5 and 6 who were cited as eye-witnesses in
\nthe case.\n<\/p>\n
\tMr.K.B. Sinha, Senior Counsel appearing for the appellants has
\nsubmitted that the High Court was not justified in interfering with the
\njudgment of acquittal passed by the trial court on proper appreciation
\nof evidence.  He has submitted that the view taken by the trial court
\nbeing probable, could not have been substituted by the another view
\neven though possible to be drawn from the circumstances of the case.
\nIt was submitted that the order of acquittal could be set aside only
\nfor compelling reasons and wherever two views are possible to be drawn,
\nthe one favourable to the accused person should have been preferred.\n<\/p>\n
\tThe settled position of law on the powers to be exercised by the
\nHigh Court in an appeal against an order of acquittal is that though
\nthe High Court has full powers to review the evidence upon which an
\norder of acquittal is passed, it is equally well settled that the
\npresumption of innocence of the accused persons, as envisaged under the
\ncriminal jurisprudence prevalent in our country is further reinforced
\nby his acquittal by the trial court.  Normally the views of the trial
\ncourt, as to the credibility of the witnesses, must be given proper
\nweight and consideration because the trial court is supposed to have
\nwatched the demeanour and conduct of the witness and is in a better
\nposition to appreciate their testimony.\t The High Court should be slow
\nin disturbing a finding of fact arrived at by the trial court. In Kali
\nRam v. State of Himachal Pradesh<\/a> [AIR 1973 SC 2773] this Court observed
\nthat the golden thread which runs through the web of administration of
\njustice in criminal case is that if two views are possible on the
\nevidence adduced in the case, one pointing to the guilt of the accused
\nand the other to his innocence, the view which is favourable to the
\naccused should be adopted.  The court further observed:\n<\/p>\n
“It is no doubt true that wrongful acquittals are
\nundesirable and shake the confidence of the people in the
\njudicial system, much worse, however, is the wrongful
\nconviction of an innocent person.  The consequences of the
\nconviction of an innocent person are far more serious and
\nits reverberations cannot but be felt in a civilised
\nsociety.  Suppose an innocent person is convicted of the
\noffence of murder and his hanged, nothing further can undo
\nthe mischief for the wrong resulting from the unmerited
\nconviction is irretrievable.  To take another instance, if
\nan innocent person is sent to jail and undergoes the
\nsentence, the scars left by the miscarriage of justice
\ncannot be erased by any subsequent act of expiation.  Not
\nmany persons undergoing the pangs of wrongful conviction
\nare fortunate like Dreyfus to have an Emile Zola to
\nchampion their cause and succeed in getting the verdict of
\nguilt annulled.\t All this highlights the importance of
\nensuring, as far as possible, that there should be no
\nwrongful conviction of an innocent person.  Some risk of
\nthe conviction of the innocent, of course, is always there
\nin any system of the administration of criminal justice.
\nSuch a risk can be minimised but not ruled out altogether.
\nIt may in this connection be apposite to refer to the
\nfollowing observations of Sir Carleton Allen quoted on page
\n157 of “The Proof of Guilt” by Glanville Williams, Second
\nEdiction:\n<\/p>\n
“I dare say some sentimentalists would assent to the
\nproposition that it is better that a thousand, or
\neven a million, guilty persons should escape than
\nthat one innocent person should suffer; but no
\nresponsible and practical person would accept such a
\nview. For it is obvious that if our ratio is extended
\nindefinitely, there comes a point when the whole
\nsystem of justice has broken down and society is in a
\nstate of chaos.”\n<\/p>\n
The fact that there has to be clear evidence of the guilty
\nof the accused and that in the absence of that it is not
\npossible to record a finding of his guilt was stressed by
\nthis Court in the case of Shivaji Sahebrao, Cri.Appeal
\nNo.26 of 1970, D\/27.8.1973 = (reported in AIR 1973 SC 2622)
\n(supra) as is clear from the following observations:\n<\/p>\n
“Certainly it is a primary principle that the accused
\nmust be and not merely may be guilty before a court
\ncan convict and the mental distinction between ‘may
\nbe’ and ‘must be’ is long and divides vague
\nconjectures from sure considerations.”\n<\/p>\n
\tThe High Court while dealing with the appeals against the order
\nof acquittal must keep in mind the following propositions laid down by
\nthis Court, namely, (i) the slowness of the appellate court to disturb
\na finding of fact; (ii) the non-interference with the order of
\nacquittal where it is indeed only a case of taking a view different
\nfrom the one taken by the High Court.\n<\/p>\n
\tIn Antar Singh v. State of Madhya Pradesh [AIR 1979 SC 1188] it
\nwas held:\n<\/p>\n
“This Court has repeatedly held that although in an appeal
\nagainst acquittal, the powers of the High Court in dealing
\nwith the case are as extensive as of the trial court, but
\nbefore reversing the acquittal, the High Court should bear
\nin mind that the initial presumption of the innocence of
\nthe accused is in no way weakened, if not reinforced, by
\nhis acquittal at the trial, and further, the opinion of the
\ntrial court which had the advantage of observing the
\ndemeanour of the witnesses, as to the value of their
\nevidence should not be lightly discarded.  Where two views
\nof the evidence are reasonably possible, and the trial
\ncourt has opted for one favouring acquittal, the High Court
\nshould not disturb the same merely on the ground that if it
\nwere in the position of the trial court, it would have
\ntaken the alternative view and convicted the accused
\naccordingly.  In the instant case, by any reckoning, the
\nview of Diwakar’s testimony taken by the trial court could
\nnot be said to be unreasonable or erroneous.”\n<\/p>\n
\tIn Harijan Megha Jesha v. State of Gujarat<\/a> [AIR 1979 SC 1566] the
\nCourt observed that: “Even assuming that the view taken by the High
\nCourt is correct, the circumstances clearly disclose that the view
\ntaken by the learned Sessions Judge was also reasonably possible.  Once
\nthis is so, there can be no question of reversing the order of
\nacquittal.”\n<\/p>\n
\tTo the same effect are the judgments in Tara Singh v. State of
\nMadhya Pradesh<\/a> [AIR 1981 SC 950] and Kora Ghasi v. State of Orissa<\/a> [AIR
\n1983 SC 360].\n<\/p>\n
\tIn the instant case, after appreciating the evidence produced by
\nthe prosecution, the trial court dealt with various aspects of the
\nmatter and after negating the existence of a criminal conspiracy, the
\nmotives and noticing inherent contradictions, concluded:\n<\/p>\n
“In view of the above discussion, it would appear that the
\nprosecution has not come with the true story.  The
\noccurrence most probably took place in the night at 9 or 10
\np.m. and the assailants could not be recognised.  The
\npresence of witnesses Bhamarpal Singh and Latoori is
\ndoubtful as discussed above, and that the presence of
\nPt.Ram Saran is also doubtful.\tHis injuries are also
\nsuspicious as discussed above.\tIt would appears that Ram
\nDayal was present but he could not recognise the assailants
\non account of darkness of night.  He also could not
\nidentify Brijpal and Veer Sahai at the test identification
\nparade although he named them.\tI have already discussed
\nthis matter of identification.\n<\/p>\n
The defence has also produced one witness Chimman Lal who
\nstated that the occurrence took place in the night.
\nHowever, in view of the weakness of the prosecution
\nevidence, the defence evidence need not to be taken into
\naccount.  In view of the above discussion, it is obvious
\nthat the prosecution has failed to prove its case against
\nHori Lal who was charged only under section 120-B I.P.C.
\nAs already discussed the evidence of conspiracy given by
\nKalyan is worthless and cannot be believed.  As against the
\nother accused persons also the prosecution has failed to
\nprove its case beyond reasonable doubt.\t In the result all
\n11 accused persons must be held not guilty and acquitted.”\n<\/p>\n
\tThe High Court agreed with the trial court so far as the
\nallegations regarding hatching of conspiracy was concerned but on
\nappreciation of evidence and taking a different possible view,
\nconvicted the eight accused persons.\n<\/p>\n
\tWhat weighed most to the trial court for acquitting the accused
\npersons was that the prosecution had failed to prove the case beyond
\nreasonable doubt and the sequence of circumstances narrated by the
\nwitnesses in the court was totally different than the occurrence
\ndetailed in the First Information Report.  In the First Information
\nReport it is stated that while attacking the deceased persons the
\naccused persons had used only guns with which they were armed.\tOnly
\nRam Murti and Ram Dayal(PWs) are stated to have been assaulted with
\nlathi, ballam and kanta.  The aforesaid two persons are stated to have
\nbeen assaulted when they were running from the house of the
\ncomplainant.  It may be worth noticing that according to the FIR, at
\nthat time, only such accused persons who were armed with guns were on
\nthe ground whereas others are suggested to have climbed the roof tops
\nto murder the deceased persons, namely, Mulaim Singh, Munshi Singh,
\nand Itwari.  None of the persons who were on the ground are stated to
\nbe armed with any weapons other than the guns.\tSimilarly it is not
\nevident from the FIR that who of the accused persons went on the roof
\ntop and with what weapons they were armed with.\t The incident stated in
\nthe FIR, being the first version of the occurrence has to be given due
\nweight.\t The trial court does not appear to have committed any glaring
\nirregularity in disbelieving the alleged eye-witnesses whose testimony
\nwas concededly contrary to the case of the prosecution as projected in
\nthe FIR.  It is true that the statements of PWs 1, 4, 5, and 6 cannot
\nbe thrown out merely on the ground that they are partisan witnesses or
\nhave any enmity with some of the accused persons.  However, the
\ntestimony of such witnesses require to be judged with more
\ncircumspection.\t The case of the prosecution, as sought to be proved at
\nthe trial, appears to be different than the one as narrated in the FIR.
\nWhen the testimony of eye-witnesses is totally different from the story
\nset out in the FIR, the trial court cannot be held to have taken a view
\nwhich was not at all possible.\tThe view taken by the trial court could
\nhave been disturbed only if there were compelling reasons.  We do not
\nfind any compelling reason noticed by the High Court while setting
\naside the order of acquittal.\n<\/p>\n
\tThe trial court had further found that the prosecution had come
\nwith a new case that the injuries to the deceased were not caused by
\nthe gun shots but with weapons like ballam, kanta and lathi.  In this
\nregard the trial court had noticed:\n<\/p>\n
“To explain the absence of the gun shot injuries, the
\nprosecution at the time of the evidence took up a new case
\nthat all the four gun-men in the party of the accused
\nremained on the ground and only Lathi, BALLAM AND KANTA
\nbearing men went up on the roofs to kill Mulaim Singh etc.
\nIt has also come in the evidence of two of the witnesses
\nthat the gun bearing men fired shots from downwards in the
\nair.  Now this story is against the FIR version where it is
\nsaid, “the accused persons began to fire shots from all
\ntogether sides and the complainant’s father Mulaim Singh
\nbrother Itwari and Tau Mushi Singh were killed on the roofs
\nby these accused persons.  After killing them, they took
\naway the single barrel gun of his father.  Ram Saran on
\nbeing hit by a shot jumped down from the roof along with
\nhis double barrel gun”.\t Thus the FIR will give the
\nimpression that Mulaim Singh Munshi Singh and Itwari were
\nalso fired upon and killed on the roofs.  This impression
\nof the FIR continued even at the time of writing of
\nPanchayatnama.\tIn the Panchayatnama of Mulaim Singh,
\nMunshi Singh and Itwari were also fired upon and killed on
\nthe roofs.  This impression of the FIR continued even at
\nthe time of writing of Panchayatnama.  In the Panchayatnama
\nof Mulaim Singh, Munshi Singh and Itwari Exe.Ka-14, Ka-18
\nand Ka-22 a number of shot injuries on each one of them are
\nnoted, but the postmortem reports show that none of them
\nhad any gun shot injury.  This also seems a very improbable
\nstory. The accused persons knew that Mulaim Singh and
\nPt.Ram Saran had guns with them, hence lathi, ballams and
\nkanta bearing people alone will not go on the roofs leaving
\ngun-bearing people down-ward.  It is also note-worthy that
\nthe main enmity with Mulaim Singh was of Jadunath Singh and
\nShyampal Singh, who had also guns according to the
\nprosecution case.  They would have gone forward on the
\nroofs to kill Mulaim Singh and his brother Munshi Singh.
\nThis case that all the four gunmen remained on the ground
\nwas not taken even in u\/s.161 Cr.P.C.  The fact that gun
\nshot injuries were shown in the Panchayatnamas goes to show
\nthat was the prosecution case even till then.  But when it
\nwas found that there was no gun shot injuries on any one in
\npost mortem report, then this new case was invented that
\nthe four gun men remained down ward on the ground.  This
\nwill go to show that no one including the complainant had
\nseen the occurrence and recognized the assailants.”\n<\/p>\n
\tSuch a view cannot be termed to be either erroneous or highly
\nimprobable in the light of the statements of the witnesses and the
\nrecord produced before the trial court.\t The Panchanamas prepared
\nimmediately after the occurrence showed that the deceased had received
\ngun shot injuries but when examined by the doctor and in the post
\nmortem report no such injury was noticed on the body of any of the
\ndeceased persons.  The dead body of Munshi Singh was not found on the
\nroof of any house as mentioned in the FIR but in the courtyard of the
\nhouse of Jogender with injuries including “(i)On right eye-brow clotted
\nblood injury of bullet, (ii) on head in between both eye brows injury
\nbullet injury black blood clot”.  The panchanama pertaining to the dead
\nbody of Mulaim Singh also showed the following injuries:\n<\/p>\n
“(i)\tOn left chest injury near armpit at two places
\nbloodstained gunshot injury.\n<\/p>\n
(ii)\tOn left thigh towards left side bloodstained injury
\nof bullet.”\n<\/p>\n
\tThe post-mortem report pertaining to Munshi Singh did not show
\nany of the gun shot injury and the cause of death is stated to be shock
\nand haemorrhage. The same is the position so far as the post-mortem
\nreport pertaining to Mulaim Singh is concerned.\t We feel that the trial
\ncourt was not unjustified in coming to the conclusion that the
\noccurrence has not taken place in the manner as stated by the witnesses
\nin their depositions recorded in the court.  Even if another view
\nregarding the occurrence was possible, as taken by the High Court, the
\nsame could not be made a basis for setting aside the order of the trial
\ncourt in view of the settled position of law on the point.\n<\/p>\n
\tKeeping in view the facts and circumstances of the case,
\nparticularly the variance between the FIR and the depositions made in
\nthe court, the mention of gun shot injuries in the panchanama and their
\nabsence in the FIR, the conflict between the statements of eye-
\nwitnesses and the medical evidence and major contradictions and
\nimprovements in the depositions of the eye-witnesses, we are of the
\nview that the prosecution failed to prove their case against the
\nappellants beyond all shadows of doubt.\t The appellants are, therefore,
\nheld entitled to the benefit of reasonable doubt.  To form an opinion
\ngiving the appellants-accused the benefit of doubt we have kept in mind
\nthe defence as projected and suggested by them to the witnesses during
\ntheir cross-examination.\n<\/p>\n
\tUnder the circumstances, the appeal is allowed by setting aside
\nthe judgment of the High Court convicting the accused persons and
\nsentencing them to various imprisonments  including the life
\nimprisonment.  We uphold the order of acquittal passed by the trial
\ncourt in favour of the appellants.  The appellants shall be set at
\nliberty at once unless required in some other case.\n<\/p>\n
\t\t\t\t…………………..J.\n<\/p>\n
\t\t\t\t\t(M.B. SHAH)<\/p>\n
\t\t\t\t…………………..J.\n<\/p>\n
\t\t\t\t\t(R.P. SETHI)
\nSeptember 28, 2001<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Kalyan & Ors vs State Of U.P on 28 September, 2001 Author: Sethi Bench: M.B. Shah, R.P. Sethi CASE NO.: Appeal (crl.) 418 of 1998 PETITIONER: KALYAN & ORS. Vs. RESPONDENT: STATE OF U.P. DATE OF JUDGMENT: 28\/09\/2001 BENCH: M.B. Shah & R.P. Sethi JUDGMENT: SETHI,J. The appellants along with seven […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-29345","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nKalyan & Ors vs State Of U.P on 28 September, 2001 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/kalyan-ors-vs-state-of-u-p-on-28-september-2001\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kalyan & Ors vs State Of U.P on 28 September, 2001 - 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