STATE OF U. P. versus HARI PRASAD & OTHERS

'~-···· _,--. 588 """-. / STATE OF U. P. v HARI PRASAD & OTHERS December 6, 1973 [M. H. BEG AND Y.V. CRANDRACHUD, JJ.] ·p.nal Codt-Murtla-Motlu for murder. There w;re disputes over land b:!ween the complain:mt and the p~rty or the accused, all of wh~m were connected mter st . The deceased was traditional pri .. t ltlth of the .::>mphrnant as well as of the accused. All the accused were on fnendJY terr•• ffitn the dec:ased. ~n the day or_thc occur_rcnce the deceased pri~t :~~~d S(lm: his mWt:r m::nOI:rs lf~re of ;tayht~ _,ng famwr_tth iY th9 W!Ce cosle~p,ng mpl~manon t as one hts_guests stde o r the The terrace of complahis 1aant311d hoU>e tloe pdest and few others were sleeping on another side, while the complairunr~ s:rvant and som: _others wore sleeping yet on another portion of the ternceortht (" s~m• blu~e. W:ule one group or live accused committ<>d the murder of the scr· v1nt of th: c>1l~ltinant, the ~:e:>nd S'?UP of fivo murdered the priest and caused ;njury to hi~ m'ther. The witnesses cl3!m:d that they identified the accused in the 1 is ill or the L3ntcrn which was alleged to be hanging by n pole four or live feet high. The s "'~ ions Judse held thnt the 10 accused formed unlawful assembly for the purpO~ of committing the murder of the complninont but by mistnke committed the murder of the prtcst and the servant. Five or the accused belonging to the 0. vill•ge ,.·ere •entenccd to death while the others were sentenced to imprisonment for hfe. The High Court acquiued oil the nccus.d. Dismissing ihe app~al of the State 10 this Court HELD : (I) The High Court w:u right in the view thot the occurrence tookpllre u11.der darkness and that in the ab.l¢1lce of ony light none or the prosecution Wit· neu:scould havcid<ntilied the culpr it~ and that the existence of the lantern was open w Ct11VC doubt. If tflc lantern was burning justnenr the pl~cc where the priest I "'u sleeping it is difficult to hold that the murder was committed through on error mistaking him to be the complainant. The accused had no moth·e to as.•ault the priest an <I eauoe injury to his mother whid"t tended to show thnt they had not partt· cipatcd in his murder. (593F; 592D und ) (2) If the various eYe witnesses were able to Identify the occuscd in the light or the laJitern the accused could have been able to identtfY the victim. (592E) CRtMtNAL r PtLLATE Jurusmcrto~ ; Criminal Appeal No. J" 215 of 1970. Appeal by ~pedal leave from the judgmer.l and order dated the 12th May, 1970 of the Allahabad High Court Luck now D~nch at Lucknow in Criminal Appeal Nos. 35 and 36 of 1970. 0. P. Ra11a, for the appellant. .A. K. GupJa, for the respondents. ·~ The Judgment oF the Court was delivered by I • CltANDRACHUD! J.-As criminal cases go, this is an interesting ca~ 11_1 the 6Cn~e that •t ofTen for solution riddle of muny facets. ;..n omce many unswers rcawnably come to mind, the accused would .[11]Pf'(:f IL to he enmlcd to the benefit of that P<:rplcxity. The monsoon nrght rt Au~u~t 27, 1968 was dark, so dark indeed that the Sessions c~u wb1ch sentenced li\"e of the accu~ed to death and the r(maining fi\e [10 ]' [\ ][... ][____][__ ][. ][~][ ~ ]__ . _ _..---·~ ·p

~ life" imprisonment made finding that "it is an admitted case that with-out light it was not possible to identify the assailants". Witnesses usually place torches in the hands of dacoits and though the motive of the crime in this case was not burglary, faint attempt was made by some of the witnesses to show that, on occasions, few of the accused had flashed their torches at strategic stages. But that part of the case is clearly unworthy of belief. And so, the main question in this appeal is whether lantern was burning at the scene of offence, lantern hang-ing by pole four or five feet high. Witnesses claim that they identified the accused in the light of that lantern.The case is riddled with these mysteries : Why did the accused murd,:r Vishwanath Panda, their traditional family priest with whom th~~ were 0;1 friendly terms and who, with his mother Birja, had come on the 27th evecing to stay with the complainant Kanahaiya BtJX Singh as &uest? The amwcr made by the prosecution is that it is sorry case of mistaken identity; the accused wanted to murder the complainant but mistook Vishwanath for him, both being of the ~;ame colour, size and age. Why did the accused assault Bilja whose hu5baad first, and after his death her son was their priest? The expla-na.tiOt\ offered is that the accused wanted to terrorise her lest she raised an atarm. If the common itttention of the accused was to commit the mruder of Kanahaiya Bux Singh why did they allow him to escape und~r their very noses Z They were ten strollg. It is suggested that on s<!dng the assault on Vishwanath, Kanahaiya Bux Singh e5caped into the nearby Chhappar, along with his brother Kishan Pal Singh and hii sister Chandrawali. They covered themselves with old clothes · lying in the Chhappar, but kept an opening for the eyes so as to be able to see the incident from the beginning to the fall of the curtain. Why was the complainant's sen· ant Ram Go pal murdered 'l No ex· pbnation is forthcomin:. And if the complainant and his family w~re the real tarcet, how could the complainant's brother Bhagwan Bux Singh, his rl\Other Ram Dulari and her sister Raja Munni es-cap.! with no more than simple, superficial injuries? This is not to sa,. that even if the witnesses are tn1thful, the prosecution must fail foi· the reason that the motive ef the crime is difficult to find. For the matter of that, it is never incumbent on t!¥ prosecution to prove tlte motive for the crime. And often times, motive is indicated to heighten the probability that the offence was committed by the person who was impelled by that motive. But, if the crime is alleged to have been committed for particular motive, it is relevant to irtquire whether the pattern of the crime fits in with. the alleged motive. If the motive, here, wu directed against Kanahaiya Bux Singh and his· family, how strange it is tltat Kanahaiya Bux Singh his sister Chandra wah :md his brother Kishan Pal Singh should have been allowed to escape unscathed when they were withi11 the easy reach of the accused; and how strange again that Bhagwan Bux, Ram Dulari and Raja Munnr should escape as if through passing household scramble. The accused. according to the prosecution, pooled their stren&th to murder fue~Kanahaiya Bux Singh-but murdered through mistake friend -Vi~.nvanath Panda-and for no apparent reason, an innocent scr-\\\11t. Ram Gopal. t:-G02SCfi74

The incident leading to this appeal took place at about II · 30 p.m. on August, 27, 1968 in the village of Kunwarpur, district Lucknow. Kunwarpur is tiny village consisting of but ten houses. The com-plainant, Thakur Kanahaiya Bux Singh, lived with his family in one hollie, while three houses were in the occupation of five out of the ten accused: Badlu, Manobar, Chhotey Lal, Jagannath and Dhaniram. The remaining five belonged to neighbouring villages.

There were disputes between the complainant and one Bindra Abir over plot of land, which led. to proceedings under sections 107 and 117, Criminal Procedure Code. One of the accused, Manohar, is Bindra's son, two of them are Bindra's brothers, two are his cousins while three are his brothers-in-law. In one way or another, all the :.ccused are connected inter se.

The complainant lived in spacious house and had fairly large family. On the 27th evening, Vishwanath Panda and his mothet' Birja arrived at the complaintant's house on one of their routine visits to the 'jijmans'. Vishwanath's father was family priest of the com-plainant and after his death, Vishwanath took up that mantle. Bilja used to acco·mpany Vishwanath on his visits to the patrons. Jt is of significant rdevance that Viskwanath's father and thereafter he himself were also family priests of the accused belonging to K unwar-pur.

The terrace over the colllplainant's house is divided into separ<Hc portions .which are described in th~se pro~eedings as ~o many roofs. On the n1ght of the 27th the cornplaulant, IllS brother K1shan Pal Singh and his sister Chandr<l\v:,li were sleeping on the roof situated in the north-western corner of the house. Vishwanath Panda, his mother Birja, Ram Dualri th~ mother of the complainant, and her sister R:~ja Munni were sleeping on the roof situated in the north-cast corner. on the south-west were sleeping Bhagwan Bux. twelve-year old broth-er of the complainant and Rnm Gopal. servant.

The case of the pr~ecution i~ that at about I I ·30 P. 111. on Au1!mt 27, the ten accused climbed to the roof of the <Omplainanf~ house bv pl~tcing laddl!r .on the south-eastem side. The accused divided lh <' n ~·­selves into two groups: five of them, namely Badlu, Manohar. Chhotev Lal, Pntti La! and hira La! went to' the place where Vishw:math Pa·;da. Birja, Ram Dulari and Raja Munni were sleeping. This group committed the murder of Vishwanath and caused injuries to the three Jadie,. The other group comprising Dhani Ram, Jagannath, Daya Shanker, .Mohan Lal and Hari Prasad went to the place where Ram Gopal and Bhagwan Bux Singh were sleeping. This group com-mitted. the murder ?f Ram G?pal a~d caused inj~ries to Bhagwan Bux Smgh, Kanaha1ya Bux Smgh, hts brother K1shan Pal Singh and his .sister Chandrawali who were sleeping on the north-western part of the roof escaped ~tealthily to Chappar and concealed them-selvei behind the old clothes lying therein. It is alleged tl1at lantern was burning near the place where Vishwanath was sleeping and-" the accuied were identifi.-cl in the li2ht of that lantern by Kanahaiya Bux

Singh, Chandrawali, Kishan Pal Singh, Birja, Raja Munni, Bhagwan Bux Singh and Ram Dulari. These, respectively, are prosecution witnesses I to 5, 7 and 8.

Vishwanath received two formidable incised injuries on his head and long linear cut on his chest. On the person of Ram Gopal were found 17 incised injuries, linear cut and contusion. Birja received 3 incised injuries, laceratea· wound and an abrasion. Almost all of these were skin-deep. Ram Dulari had three incised injuries on her person, one being muscle-deep and the other bone-deep. Raja Munni received muscle-deep incised injury behind her right ear. Bhagwan Bux Singh had one incised injury on his person.

The complainant lodged the First Information Report at the Jtaunja police station through the son of Chaukidar at about 9 ·1 S a.m. on the 28th. The names of all the accused are mentioned therein together with the weapons wielded by them on the previous night.

· The learned Sessions Judge accepted the evidence of the eye· wituesses and held that all of the ten accused had formed an unlawful assembly with the common object of committing the murder of · Kanahaiya Bux Singh and of causing hurt to the other members of his family, that they committed the murder of Vishwanath Panda, mistaking him for Kanahaiya Bux Singh and that they also commit-ted the murder of Ram Gopal. The five accused belonging to Kunwarpur were sentenced by the learned Judge to death while the other five were sentenced to imprisonment for life. Varying sente.nces were also imposed on the accused for the comparatively mirior offences. In appeals Nos. 35 and 36 of 1970 filed by the accused, the High Court of Allahabad (Luc~now Bench) has set aside the order of conviction and sentence and has acquitted all the accused T11c State of Uttar Pradesh has filed this appeal by special leave against that judgment. One of the accused, Putti Lal, died during the pendency of this appeal.

The judgment of the High Court is perhaps open to the charge that, unconventionally, it has taken into consideration the broad features of the case without discussing separately the evidence of each one of the eye-witnesses. The juc1gment would have been of greater assistance to us if the High Court had referred to the main points in the evidence of the important witnesses, but in view of the rather peculiar facts of the case we are not prepared to say that the method adopted by the High Court has caused failure of justice.

The fate of the entire case depends on the question whether lantern was burning near the place where Vishwanath Panda was sleeping. It is in the light of that lantern that the several witnesses are alleged to have identified the respondent. Having considered the evidence of the various witnesses we are of the view that the High Court was right in coming to the conclusion that the existence of the lantern is open to grave doubt.

The respondent had no motive whatsoever for committing the murder of Vishwanath or for causing injuries to his mother Birja.

Vishwanath's father, . and after his death Vishwanath himself, was the priest. of the group of accused who committed his murder. It is said that Vishwanath was murdered through an error as the accused who assaulted him mistook him for the complainant, Kanahaiya Dux Singh. If the lantern was burning just near the place where Vishwa-nath was sleeping, it is difficult to appreciate how such mistake could have been committed. It is urged that Vishwanath and the comp-lainant were of the same age and complexion and since Vishwa-naths' face was away from the lantern, the accused must have mistaken him for the complainant. Assuming for the sake of argument that such mistake was initially committed, there is no reason why the fi\'e accused should continue to assault Vishwanath after they had discovered their mistake. Birja has stated in her evidence that she woke up immediately after the first blow was given to Vishwanath and she :tsked the accused imploringly as to why they were beating their own Panda. Birja says that thereafter the five accused not only conti-nued to assault Vishwanath but they also assualted her, knocking out her teeth in the process. This, is our opinion, dearly shows that Vishwanath was not assaulted through an error or an oversight. The· accused evidently had no motive to assault him which tends to show that they had not participated in the murder of Vishwanath.We also find it difficult to believe that though lantern was burning just near the place where Vishwanath was sleeping, the ac-cused were unable to identify him. They knew Vishwanath inti-mately and it is highly unlikely that they would commit mistake of such grave nature. Indeed, if the various eye-witnesses were able to identify the accused in the light of the lantern, the accused should have been able to identify Vishwanath.

The case of the prosecution is that the real target of the accused was the complainant Kanahaiya Bux Singh. If that be so it seems to us surprising that though he was sleeping on one of the roofs, none of the accused should have made any effort to follow him into Chappar or to trace him in any other part of the house after Vishwa-nath and Ram Gopal were done to death. Kanahaiya Bux Singh his brother Kishan Pal Singh and his sister Chandrawali have told story which strikes us as highly imaginative. All the three claim that they walked into the Chappar, covered themselves with old clothes, kept their eyes uncovered and saw the entire incident through small slits. If at all the complainant and the other two persons were sleeping on the roof they must have run away to safe distance. But the greater probability is that this group was sleeping on the ground floor of the house and not on the roof at all. Kanahaiya Bux Sin!h's wife, his daughter and Chandrawali's children were admittedly sleeping on the ground floor. That eliminates the possibility that the incident was witnessed by Kanahaiya Bux Singh, Chandrawali and Kishan Pal Singh.

Learned counsel for the State has placed great reliance on e,·idellce of Vishwanath's mother Birja. He contends that Birja is an independent witness, that she has no motive for implicating the

accused falsely and that her evide;1ce in regard to the identification must be accepte~ as true. Birja undoubtedly is an independent witness but if there was no lantern on the roof, she could not have possibly identified the accused. The judgement of the learned Sessions Judge contains statement that it was an admitted pqsition that if there was no lantern burning, it was not possible to identify the E'.ssai!ants. It seems that on the next morning, the large crowed of neighbours . which gathered at the scene of offence ventured into the ust1al specula· tive guesses and Birja, having lost her son, readily believed that what was guessed was true. That explains why Birja persuaded hereself to say that Kanahaiyn. Bux Singh, Chandrawali and Kishnn Pal Sio,gh were sleeping on the roof though, as indicated above, the greater probability is that they were sleeping on the ground floor. It is important ip this connection that the First Informatiotl Report is important ip this connection that the First Informatiotl Report important ip this connection that the First Informatiotl Report ip this connection that the First Informatiotl Report this connection that the First Informatiotl Report

It is important ip this connection that the First Informatiotl Report is important ip this connection that the First Informatiotl Report important ip this connection that the First Informatiotl Report ip this connection that the First Informatiotl Report this connection that the First Informatiotl Report contains statement that Birju Pasi, Ganeshi Pasi and several other~ had responded to the alarm raised by the members of the complaina-nt's family. In the Sessions Court the complainant stated that immedia-tely after the occurrence, Birju and Ganeshi came to his house and that he had narrated to them what. had happened. None of these persons has been examined by the prosecution and no reason was shown as to why they were not examined.Learned counsel for the State argued that it was open to us to examine the evidence apart from the question whether Vishwanat~ was assaulted through mistaken identity. We are unable to accept this argum~nt. The very foundation· of the prosecmion case is that the accused had motive to commit the murder of the complainant, that they mistook Vishwanath for the 'complainant and that Vishwn-nath was murdered as result of this unfortunate mistake. It is not open to the prosecution to ask the court to discard the \'ery substratum of their care and to construct new theory founded on hypothesis presented for the first time before us.

We are therefore in agreement with the view taken by the High Court that the occurrence took place under cover of darkness and that in the absence of auy light, none oj the prosecution \vitnesses could have identified the culprits. We therefore confirm the order of acquittal under which the accused have been given the benefit of doubt and dismiss this appeal. The bail bonds shall be cancelled and if any of the accused are in jail they shall be set at liberty.

Appeal dismissed.