BALAK RAM ETC. versus THE STATE OF U.P.

THE STATE OF U.P. August 16, '1974

[H. R. KHANNA ANDY. V. CHANDRACHUD; JJ.]

App~al against acquittal-two views o{ the evider.ce uasonably pos.S:h{e-High Court, wh~th~r justified in interfering with th~ order of acquittal passed by the trial Court. · . . Criminal Trial-Material witn~sses, non-aamination of-Duty nj the · prosecution-Prdsecution not to rely on insufficient data for non"t!xamining oj material witness~s. . ·

Criminal Trial-Evidence of prosecution witnesses whose statements are recorded under sec. 164 Cr.P.C.~Appreciation ·of Jheir evidenc~urt to approach their evidence with caution. · Constitution of India, 1950, Artil:le ·13&-eoncurr~nt findin:s of fa~t­S!ipreme Court, when can re-appraise evidence.

Code of Criminal Procedure--section 314--Rejercnce for confirmation of the death sentence-Duty of the High Court-High Court to examine for itstl/ the entire evidence indepen4~ntly of Sessions Court.

Two. persons, Tribeni · Sahai and Radhey were shot de-ad in the town of Datagani. District Budaun. ' The four appellants were tried along with two . others by the learned Sessions Judge, Budaun, for various offences in connec-tion with the incident. Balak Ram was coqvicted under sec. 302 IPC and sentenced to death. He was also convicted and ~entenced under sec. 337 read with sec. 149 for causing i_njuries to Jhilmili and Ram Prakash and under sec. 148 IPC. The other five were acquitted of all the charges. Sentence of . death imposed on Balak Ram was confirmed by the High Court. But in the · appeal filed bv the State against the order of acquittal passed by the Sessions Court, the . High Court confirmed the acquittal of Kailash, but convicted Nathoo, Dr. R. P. Kohli· and Mohd •. Sayeed ·Khan and Banney Khan under ieetions 302 and 307 read with sec. 149. It further convicted Nathoo and ·Dr. Kohli under section 148 and Banney Khan under section-147 of the Penal Code.· The three accused have been sentenced by the High Court to imprison-ment for life for their participation in the murder of Tribeni S.a}lai and Radhey and concurrently to ten years' rigorous imprisonment for ··causin~ injuries to Jhilmili and Ram Prakash. Balak Ram. Nathc-o,. Dr. Kohli and Banney Khan . have filed four separate appeal$ by special leave of this Court.

The prosecution case was that at about 9-15 p.m. on May the 27 the six accused along with 15 or 20 of their followers went about canvassing for the candidates put up by the Congress (0). little later, they went southwards · through lane which leads to the house of the deceased Tribeni Sahai. He was · havin_g- an after-dinner stroll with Radhey and as he reached the inter-section of · cement road passing by his house and the line by which the processionists were 'proceeding, the appellants who were leading the processions startf'd raisiric:t . offensive slogans against him. Tribeni Sahai protested and wrangle ensued. · While hot word3 were being exchanged, Dr. Kohli, Banney Khan and Pearey Mian exhorted Balak Ram to fire. Balak Ram stepped out, stood on the raised ground to the east of the lane and fired shot at Tribeni Sahai with licensed pistol which he was carrying. Tribeni Sahai had sensed dan '!,er and was trying to escape but he was hit by bullet on the right scaPular recion.. Radhev who was few paces behind Tribeni Sahai· ran forward to protect him when Balak Ram, Nathoo and Dr. Kohli fired four or five shots. Radhey received pistol injury on the left back:. Jhilmili and Ram Prakash who live 2 -Ll92SupCI {75

nearby came running in protes( but they also received. injuries as a. result of the shots fired by Batak Ram, Nathoo and Dr. Kohh.. Nat~oo, ltke Balak Ram was carrying pistol while Dr. Ko~Ii was .armed Wlth licensed revolver. Jhil~ili received an injury on his left. th1gh w~lle Ram Prakash was found to have superficial burn on the right side of h•s abdomen.

According to the prosecution, Rajendra Kumar Misra gave information of the incident at 4-45 p.m. at the Police Station which js about two furloniS away. The Station House Officer. Yogendra Sharma, as.ked head constable to record the First Information Report. The S.H.O. signed the report and hurried to the scene of occurrence. The S.H.O. claims to have taken down the dying declarat io~ of Triben! Sahai. in the ~S!! diary which he had taken with him while leavmg the pohce statwn. This 1s the second of the thret dyin2 declarations. The first one is said to have been m~de to Dharaf!l Pal, the rival candidate of the appellant Balak Ram. The th•rd one was JO the Budaun Hospital before the Sub-Divisional Magistrate. These four appeal! have been filed by special leave of this Court.

It was contended (i) the- High Court had no sufficient reasons for inter-fering with the order of acquittal passed by the Sessions Court in favour of Nathoo. Dr. Kohli and Banney Khan and (ii) the High Court was not justified in upholding the conviction of Balak Ram and the $entence of death i_mposed on him by the Sessions Court.

Dismissing the appeal 0f Balak Ram and ailowing the other three appeals,

HELD.: (i) (f the High Court has set aside an order of acquittal the Supreme Court in an appeal under .Art. 136 will examine the evidence only if the High Court has failed to apply correctly the principles governing appeals .2gainst acquittal. The powers of the High Court are ll'S full and wide in :appeals against acquittal as in appeals against conviction, but, amongst other things, if two views of the evidence are reasonably possible the High Court ought not to interfere with the order of acquittal p~ssed by the trial court.

[762A-C]

Ram Ja~: a~i Ors. v. The State of U.P. (1974) 4 S.C.C. 201 relied on.

An examination of the various items of evidence on record discloses that the conclusion to which the learned Sessions· Judge came was reasonn bte ron-elusion to come to. It cannot be denied that two views of the evidence are reasonably possible in regard to the participation of Nathoo, Dr. Kohli and Banney Khan. The High Court, therefore. oul!:ht not to have interfered with the judgment of the Sessions Court in their favour. [770F-G]

(ii) In the F.I.R. Rajendra Kumar mentioned that Loki, Ganga Ram and Aryendra had seen the incident. Neither Ganga Ram nor Loki was examined by the prosecution and the learned public prosecutor stated that Loki had been won over by the defence. Such bold assertion, unsupported bv any data, is insufficient to absolve the pro-se:ution of its duty to examine witnesses whose evidence is necessary for unfdlding its case. [764F-H]

(iii) The Statements of three prosecution witnesses were recorded under 164 Cr.P.C. soon after the incident. The Investigating Officer said that lle got the statements recorded by way of precaution. That could be true and it would be wrong to find fault with him merely because he got the statements of these Witnesses recorded under sec. 164. Nor can the evidence of witne<;s be discarded ~or the mere reason that his statement was recorded under sec. 164. But the H1gh Court overlooked that tbe eviden~ of these witness must be app10ached with cauFon. Such witnes-ses feel tied to their previous statf'ments given on oath and have but theoretical freedom to depart from the earlier yersion. prosecution for periurv could be the price of that freedom. It Is open to the court to accept the evidence of witness whose statement was ~cor.ded un<ier ~ec. 164 but the salient rule oJ caution must alwavs be borne m ~md. That. IS a!l the more neces~arv when almost all the eye-witnesses are 5UbJected to th1s tymg-up process. [768B-E]

_..._ -

(iv) The powers of the Supreme Court under Article 136. o~ the Const_itution are wide but in criminal appeals the Supreme Court does not mterfere With the concurrent findings of fact save in exceptional circumstances. Normally tho High Court is- final court of appeal and the Supreme Court is ~JnlY Co~rt of special jurisdiction. This Court would not, therefore, re-appraise the eVId• ence unless, for example the forms of legal process are disregarded or princi-pies of natural justice are violated or substantia] and grave injustice has other• wise resulted. [761G-H]

Ramabhupala R~ddy and Ois. v. The State of A.ndhra Pradesh Al.R. 1971 SC 460 relied on. -

(v} Balak Ram examined two witnesses. D.W. 7 and D.W. 8 to establish his plea of alibi but the evidence was rightly rejected by. the trial court. It is in the least degr<:e likely that Baiak Ram who was contesting the election for Chairmanship of the Committee wocld be away from the hubbub of politics on the eve of elections. All the same. the High Court ought to have consi-dered that evidence for what it was worth. In reference for confirmation of the death sentence under sec. 374 Cr.P.C. the High Court must examine the entire evidence for itself, independent of the Sessions Court. [772G-HJ

Bhup~ndra Singh· v. Th~ State of Punjab fl968] 3 SCR 404 and Jumma11 and Or.r. v. Th~ Stat~ of Punjab AIR 1957 SC 469.

Criminal Appeal No. 72

CRIMINAL APPELLATE JURISDICTION: of 1973.

Appeal by Special Leave from the Judgment and Order dated the 22nd December 1972 of the Allahabad High Court in Crl. A. No. 895 of 1972 and Referred No. '82 of 1972 and · ·

Criminal Appeal Nos. 25, 34-35 of 1973.

Appeal from the Judgment and Order dated the 22nd December, 1972 of~ Allahabad High Court in Govt. Appeal No. 1448 of 1972.

Frank Anthony, K. C. Agarwala, M. L: Srivastava and E. C. Agarwala for the appellant in Crl. A. 72 and 35j73. D. P. Uniyal, N. K. Johri and 0. P. Rana for the respondent in Crl. A. 72j73, .

M. C. Bhandari, P. H. Parekh and Mrs. S. Bhandare for the appel-lant in Crl. A. No. 34 of ·1973 •.

0. P. Rana for the respondent in Crl. A. Nos. 25, 34-35[73.

s. K. Bisaria for the appellant in Crl. A. No. 25f13 ..

The Judgment of the Court was delivered by

CIIANDRACHUD, J. On May 27, 1971 two persons caJJed Tribeni Sahai and Radhey were shot dead in the tcwn of Dataganj, District Budaun. The four appellants: Balak Ram, Nathoo, Dr. R. P. Kohli and Mohd. Sayeed Khan @ Banney Khan were tried along with two · others· by the learned Sessions Judge, Budaun, for varicllls offences in connection with that incident. Balak Ram was convicted under sec· tion 302 of the Penal Code and was sentenced to death. He was also convicted and sentenced under section 337 read with section 149 for causin!! iniuries to Jhiimiii and Ram Prakash and under section 148, Penal Code. The learned judge acquitted the other1ive accused of aU

the charges. Out of 1 these five, we are not now concerned with Kailash whose acquittal is not under challenge and with Ahmed Sayeed Khan alias Pearey Miin who died during the pendency of the proceedings ;n the High Court of Allahabad. The High Court by its Judgment dated December 22, 1972 con-firmed the conviction of Balak Ram and the sentence of death imposed on him under section 302 as also his conviction under section 148. The High Court altered his conviction under section 337 read. with sectiqn 149 to one under section 307 read with section 149 of the Penal Code. -·In an appeal against the order of acquittal passed by the Sessions Court, the High Court confirmed the acquittal of Kailash, but convicted Nathoo, Dr. R. P. Kohli and Mohd. Sayeed Khan @ Banney Khan under section~ 302 and 307 read with section 149. It further con-victed Nathoo and Dr. Kohli under section 148 and Banney Khan under section 14 7 of the Penal Code. The three accused have been .sentenced by the High Court to imprisonment for life for their partici-pation in the murder of Tribeni Sahai and Radhey and concurrently to ten years' rigorous imprisonment for causing injuries tq Jhilmili and Ram Prakash. Balak Ram, Nathoo, Dr. Kohli and Banney Khan have filed four separate appeals by special leave of this Court.

The incident leading to the murder of Tribeni Sahai and Radhey arose, indisputably, out of political rivalry, the parties involved being the Congress (R), Congress (0) and the Bhartiya Jan Sangh. Tribeni Sahai was sitting Member of the U.P. Legislative Assembly, elected on the Congress (R) ticket while the other victim Radhey is said to have been his bodyguard. Balak Ram, Nathoo and Banney Khan be· longed to the Congress (0) while Dr. R. P. Kohli was the local Presi-dent of the Jan Sangh.

The elections to the Town Area Committee of Dataganj were &cheduled to be held on May 30, 1971. Balak Ram was contesting the election to the Chairmanship of the Committee as nominee cl Congress (0). Dharam Pal, the rival candidate for Chairmanship wai nominee of Congress (R). Nathoo and Banney Khan were con-testing the election for the membership of the Committee on the ticket of Congress (0). The Jan Sangh seems to have decided to support the candidature of Balak Ram and others who were put up by Congress ( 0) .

The election campaign launched by the rival political parties led to great acrimony. The District Magistrate c!f Badaun, therefore, pro-mulgated on May 24, 1971 an order under section 144 of the Code·of Criminal Procedure, prohibiting the assembly of more than five persons and carrying of arms in public. If defiance of this order, Balak Ram led procession c~ some 25 presons at about 6.30 p.m. on May 27, 1971. While passing by the house of the rival candidate Dharam Pal, the processionists raised various slogans whereuoon Dharam Pal formed procession of his own follcM'ers. The two processions stood facing each other at the crossing of road but the Station House Offi-cer Yogendra Sharma persuaded both the parties to disperse.

The case of the prosecution in regard to the main incident leading to the double murder may be stated thus: At about 9.15 p.m. on May 27 the six accused along with 15 oi 20 of their followers went about canvassmg tor the canoidares put up by the Congress (0). little lat:!r, they went southwards through lane which leads to the house of the deceased Tribeni Sahai. He was having an after-dinner stroll with Radhey and as he reached the inter-section of cement road passing by his house and the lane by which the processionists were proceeding, the appellants who were leading the processions started-raising offensive slc~gans against him. Tribeni Sahai protested and wrangle ensued. While hot words were being exchanged, Dr. Ko!:lli, Banney Khan and Pearey Mian exhorted Balak Ram to fire. llalak Ram stepped out, stood on the raised ground to the east of the lane and fired shot at Tribeni Sahai with licensed pistol which he was carrying. Tribeni Sabai had sensed danger and was trying to escape but he was hit by bullet on the right scapular region. Radhey \\'ho was few paces behind Tribeni Sahai ran forward to protect him when Balak Ram. Nathoo and Dr. Kohli fired four or five shots. Radhey received pistol injury on the left back. Jhilmili and Ram Prakash who live nearby came running in protest but the'y also received injuries as result of the shots fired by Balak Ram, Nathqo and Dr. Kohli . . Nathoo, like Balak Ram, was carrying pistol while Dr. Kohli was armed with licensed revolver. Jhilmili received an injury on his left thigh while Ram Prakash was found to have superficial burn on the right side of his abdomen.

According to the prosecuticp, Rajendra Kumar Misra gave infor-E mation o'f the incident at 9.45 p.m. at the police station which is about two furlongs away. Rajendra Kumar Misra is the brother-in-law of Radhey Shyam Sharma who is the brother of the deceased Tribeni Sahai. Radhey Shyam was, at the material time, the Deputy Inspector General ctf Police and was stationed at Lucknow. The Station House Officer, Y ogendra Sharma, asked head constable to reoord the First Information Report. The S.H.O. signed the report and hurried to the scene of occurrence. Rajendra Kumar stayed behind at the police station in order t~ obtain copy of the First Information Report.

Dharam Pal, who was the rival candidate of the appellant Balak Ram for the Chairmanship of the Town Area Committee, went to the scene of occurrence on hearing the pistol-fire. Tribeni Sahai is alleged to have tdd him that Balak Ram had fired shot at the instigation of Banncy Khan, .Pearey Mian and Dr. Kohli. In short while, the motor cars of Dharam Pal and Rajendra Kumar Misra arrived at the place where Tribeni Sahai and Radhey were lying injured. Tribeni Sahai was put in the car c& Rajendra Kumar Misra and was acoompanied by h;s wife and daughter. Radhey was put in the other car but before the two cars left on their way to Budaun, Yogendra Sharma the S.H.O. arrived at the scene. tie dispersed the crowd which had surrom1ded the two cars. He tried to interrogate Radhey but failed to get any res-ponse. as Radhey was unconscious. He then went to the ether car and the allegation is that he was told by Tribeni Sahai that Balak Ram bad

fired shot at the instigation of Banney Khan, Pearey Mian and Dr. Kohli. The Station House Officer claims to have taken down the dy· ing declaration in the case diary which he had taken with him while leaving the police static111.

The tow cars reached the Civil Hospital at Budaun at 11.30 p.m. Tbe District Magistrate and the Civil Surgeon who bad in the mc:ln-while received information about the incident were waiting for the cars at the hospital. Radhey, on being taken out of the car, was declared dead while Trii)Cni Sahai was taken to the Emergency Ward. As his condition was fc!Und to be precarious the Sub-Diviskmal Magistrate, Sada Ram, was sent for in order to .record the dying declaration. On his arrival, Sada Ram recorded Tribeni Sahai's dying declaration, the third in the series. Tribeni Sahai was thereafter taken to the Mission Hospital at Barielly but he: succumbed to his injury at 8.30 p.m. on the 23.

In the meanwhile, Yogendra Sharma had commenced the investiga-tion. He went to the house of Tribeni Sahai and informed the Super-intendent of Police, Budaun, on trunk telephone about the occurrence. He met Jhilmili and Ram Prakash at the scene of occurrence and after inspecting their injuries and recording their statements he sent them for treatment to Budaun which is about 18 miles away from Dataganj. He took charge of five empty cartridges and bullet head from the sc·ene of occurrence. The Superintendent of Police sent platoon of Provincial Armed Constabulary to Dataganj and he himself arrived at Dataganj little after midnight.

Dr. Kohli's house is alleged to have been searched at night but he cc1uid not be found nor was any incriminating article discovered. At about 2.30 a.m. the same night, the Investigating Officer is alleged to have arrested Dr. Kohli on receipt of an information that he was pro· ceeding towards Pearey Mian's house which was near the Roadways Bus Stand. Dr. Kohli was taken to his house and it is alleged that his wife produced his licensed revolver frcro inside the Niwar of cot. The Investigating Officer opened the chamber crt: the revolver and found that it was loaded with three live cartridges and was emanating the smell of freshly fired bullet. Banney Khan was arrested at 5 a.m. on the 28th Balak Ram's house was searched but he could not be found.

On the night between the 27th and 28th May, eleven persons were arrested by the Investigating Officer apart from Dr. Kohli, Janney Khan and Kailash. Those persons wen; arrested on information given by one Abdul Rruhman that they were_ involved in conspiracy to commit the murder of Tribeni Sahai. Balak Ram, N athctJ and Pearey Mian surrendered respectively on 29th May, 7th June and 11th June. On 1st June Balak Ram's father surrendered in the court of the Judicial Magistrate licensed automatic Pistol belonging to Balak Ram.

The post-mortem examination on Radhey was performed by Dr. A. S. Gupta on 28th May. He found circular lacerated wound

Y' x 311 0'' cavity deep on the posterior axillary line on the left side of the axillary pit and confusion on the right side of the chest. Dr. Gupta recovered bullet from Radhey's body.

The post-mortem on the dead body of Tribeni Sahai was performed by Dr. S. Mitra qn 29th May. He found on the dead body gun shot wound lC x 1C chest cavity deep below the right scapular region.

The injuries of Jhilmili and Ram Prakash were examined by Dr. R. C. Bansal of the District Hospital, Budaun on 28th May. He found on the person of Jhilmili fire-arm wound of entry on the 1eft thigh and wound of exit on the same thigh. On the person of Ram Prakash was found superficial burn 1" _x 1" on the right side of the abdomen.

The licensed revolver of Dr. Kohli, the autclmatic pistol of Balak Rilm, the bullet which was recovered from the dead body of Radhey and the five empty cartridges as well as the bullet head recovered from the scene of occurrence were sent by the Investigating Offic..;r for ballistic tests to the Scientific Section C.I.D., Lucknow. The ballistic expert, Shyam Narain, opined that the bullet recovered from Radhey's body was fired from Balak Ram's pistol but that the bullet seized from the scene of occurrence was fired frcm some other weapon.

The defence of the appellants, broadly, was that they were falsely implicated on account of political rivalry. They contended that the witntsses had given false evidence against them either because they were friends or relatives of Tribeni Sahai or because of the pressure exerted on them by the police at the instance, partly, of Tribcni Sahai's brother Radhey Shyam, who was the Deputy Inspector General of Police and Member of the Vigilance Commission, U.P.

Balak Ram pleaded alibi saying that he was at Lucknow from May 25. He led evidence in support qf his plea of alibi, Nathoo ad-mitted that he was related to Balak Ram but contended that he was contesting the election to the membership of the Town Area Com-mittee as an independent candidate. He also pleaded alibi saying that he had gone to Chandausi on the morning of 27th and returned to Dataganj CIIl May 29. He stated that he wanted to surrender earlier but being informed that Radhey Shyam, D.I.G., had issued orders for shooting the accused, if found, he could not surrender till June 7. Dr. Kohli admitted that he was the President of the local unit of the Jan Sangh, but denied that there was any personal enmity between him and Tribeni Sahai. He denied that he was arrested at about 3.30 a.m. on the 28th May or in the circumstances alleged by the Investigating Officer Clf that his revolver was handed over by his- wife. He con-tended that while he was clc~ing his clinic at about 10.30 p.m. on the 27th he was taken by constable to the police station on the pretext that he was wanted by the Station House Officer. While he was in detention at the police station, the Station House Officer went to his house and obtained his revolver from his wife. According to Dr. Kohli, Dharma Pal, Raiendra Kumar Misra and two lawyers, Nawat Kishore and Sultain Ahmed came to the police station and had long

meeting with the Investigating Officer at about 3 p.m. on the 28th. Thos·~ under arrest were thereafter sent to Budaun. ·

The tW;) broth~rs Banney Khan and Pearcy Mian admitted that civil litigation was pending between them and Tribeni Sahai on the date of occurrence. Banney Khan admitted that he was candidate for election to the membership of the Town Area Committee as nominee of Congress (0). He stated that he was the Vice-Chairman of the Town Area Committee since 1937 and claimed that cverv can-didate he had supp::nted during the past many years for the Chair-manship of the Committee had been successful. He alleged that he was implicated at the instance of Dharam Pal who was contesting the Chairmanship on the ticket of Congress (R). Like Dr. Kohli he also contended that he was sent to Budaun at about 3.30 p.m. on the 28th.

Each of the appellants denied knowledge of the order passed by the District Magistrate under section 144, Criminal Procedure Code and each one denied his presence in the procession which was taken out at about 6.30 p.m. on the 27th. Their presence in the later procession and their participation in the incident under inquiry was of course denied by them.

The learned Sessi•ans Judge, Budaun, came to the cc,:tclusion that none of the eye-witnesses including the injured Jhilmili and Ram Prakash could be relied upon unless independent corroboration was availab!e to their testimony. The learned Judge took the same view about the dying declarations alleged to have been made by Tribeni S.ahai. Except for Balak Ram, the other accused were acquitted by the J~arned Judge as independent corroboration was not available to the evidence of the witnesses in regard to the part played by those accused. In so far as Balak Ram is concerned, the learned Judge con-victed him fer. the murder of Tribeni Sahai and Radhey on the view that the evidence of the eye-witnesses and the dying declarations of Tribeni Sahai were corroborated by the opinion of the Ballistic Expert, Shyam Narain, who stated that the bullet recovered from the dead body 'of Radhey was fired from Balak Ram's pistoL The learned Judge further held that it was nc1t clear as to who else were members of the unlawful assembly responsible for the murders of Tribeni Sahai and Radhey but since it was clear that there was in fact an unlawful assembly, Balak Ram was liable to be convicted under section 148, Penal Code. The learned Judge acquitted Balak Ram of the charge under section 307 read with section 149 in regard to the injuries re-ceived by Jhilmili and Ram Prakash but he convicted him under sec-tion 337 read with sec6on 149 on the ground that his reckless act in firing from his pistol had endangered human life and had caused hurt to Jhilmili and Ram Prakash.

Apart from the injured Jhilmili (P.W. 1) and Ram Prakash (P.W. 11 ), the prosecution examined Rajendra Kumar Misra (P.W. 13) and Aryendra Nath (P.W. 19) as eye-witnesses ·to the occurrence. Rajendra Kumar Misra who lodged the First lnformaticlll Report at the Dataganj police station is close relative of the deceased Tribeni

BALAK RAM V, U.P. STATE (Chandrachud, J.) 761 Sahai and. was. at the relevant time the President of the local unit of Congress (R). The High Court therefore felt that he could not be regarded as an "entirely independent witness'. But his evidence was accepted by the High Court for the reason that it was "corroborat~d by the first information report lodged by him promptly". The prompt lodgment of the F.I.R. was in turn held to be corroborated by the evi-dence of Head Constable Jai Prakash (P.W. 2) and the Investigating Officer Yogendra Sharma (P.W. 24). The High CCiurt accepted the • evidence of Jhilmili and Ram Prakash who, according to it, were in· dependent witnesses. The two witnesses were said to corroborate each-other individually and together they were held to corroborate the evidence of Rajendra Kumar Misra. Aryendra Nath is the sister's son of Dharam Pal who, on the ticket of Congress (R) was contesting the election to the Chairmanship of the Town Area Committee. The High Court therefore held that he could not be considered as an independent witness but his evidence was accepted as it was in "full accord" with that of Jhilmili and Ram Prakash. Finally, the High Court accepted the three dying declarations of Tribeni Sahai as true and voluntary observing that they provided full corroboration to the testimony of Jhilmili, Ram Prakash and Aryendra Nath. In the result the High Court accepted the prosecution case in its entirety except in regard to Kailash and convicted Balak Ram, Nathoo, Dr. Kohli and Banney Khan as mentioned earlier. Broadly, the two questions which arise for consideration are whether the High Court was justified in upholding the convicticn of Balak Ram and the sentence of death imposed on him by the Sessions Court and secondly whether the High Court had good and sufficient reasons for mter'fering with the order of acquittal passed by the Sessions Court in favour of Nathoo, Dr. Kohli and Banney Khan. Our approach to these two questio0ns has to be basically different be-cause whereas in regard to Balak Ram there is concurrent finding of fact that he was responsible for committing the murders of Tribeni Sahai and Radhey and for causing injuries to Jhilmili and Ram Prakash, in regard to the other three appellants the two courts have differed, the High Court h~ving interfered with the order of acquittal passed by the trial court in their favour. The powers of the Supreme Court under Article 136 are wide but in criminal app~a1s this Court does not interfere with the concurrent findings of fact save in exceptional circumstances. Jn Ramabhupa{a Reddy and Ors. v. The State of Andhra Pradesh,(!) it was observed that it was best to bear in mind that normally the High Court is final court of appeal and the Supreme Court is only Court cf special jurisdiction. This Court would not therefore re-appraise the evidence unless, for example, the forms of legal process are {iisregard-ed or principles of natural justice are violated or substantial and grave injustice has otherwise resulted. In dealinQ: with the appeal ·filed by Balak Ram we shall have to keep this position in mind.In so far as Nathoo, Dr. Kohli and Banney Khan arc concerned the question {or consideration is whether the High Court was justified in interfering with the order of acquittal passed in their favour by the Sessions Court. In Ram Jag and Ors. v. The State of U.P.(1) this ·court heltl after review of previous authorities that if the High Court has set aside an order of acquittal the Supreme Court in an appeal under Article 136 will examine the evidence only if the High Court has failed to apply correctly the principles governing appeals against acquittal. It was held in that case that the powers of the High OJurt are as full and wide in appeals against acquittal as in appeal against conviction but, amongst things, if two views of the evidence are reasonably possible the High Court ought to interfere with the order of acquittal passed by the trial court.

It would be convenient to deal first with the appeals filed by Nathoo, Dr. Kohli and Banney Khan who have the benefit of an ori:Ier of acquittal passed in their favour by the Sessions Court. For proper understanding of the case it is necessary to have glimpse c~ the political canvass of Dataganj. The deceased Tribeni Sahai, Dharam Pal who was corrtesting the election to the Chairmanship of the Town Area Committee, the 79 year old Banney Khan and Dr. Kohli who was the President of the· Jan Sangh unit were keyfigers in the Dataganj politics. The story of their doings is the not un-familiar tale of floor-crossing and internal splits. In the Assembly election of 1967 an independent candidate-incidentally, retired District Juldge-won on the support of other political parties though some of these parties had put up their own candidates. The Con-gress (R) candidate supported by Tribeni Sahai lost that election and the Judge won. In the election to the Town Area Comm1ttee held in the same year. Tribeni Sahai supported Jan Sangh candi-date as against Dharam Pal who was put up by the Congress. Dr. Kohli, though an ardent Jan Sanghite, supported Dhram Pal. In the 1969 mid-term poll Tribeni Sahai won as Congress candidate, this tlme with the help of Dharam Pal. The Judge, Harish Chandra Singh, who as Bhartiya Kranti Dal candidate had the support of Dr. Kohli, Banney Khan and others lost the election.

Coming nearer the date of occurrence, the Town Area Committee elections were to be held in Datagani on May 30, 1971. Dharam Pal, Congress (R) candidate for the Chairmanship of the Com-mittee had the support of Tribeni Sahai while Bnlak Ram, now under death sentence, who was Congress (0) candidate for Chairman-ship had the suponrt of other parties. Dr. Kohli and BannPv Kh'ln were partisans of Balak Ram. Banney Khan was himself Congress (0) candidate for the membership of the Committee. The Congress (R) and Congress (0) had each fielded 10 candidates for the 10 Committee scats. Nathoo, apparently an independent candi(Jate, was in fact dummy candidate put uP bv CoMress (0) in order to pro-vid·~ for the possible disloyalty of its official candidate. Nathoo is Balak Ram's brother-in-law.

(I) [1974] 4 s.c.c. 201.

.......

'"Of Bannev Khan it is said that since 1937, candidates put up by him for Chirmanship of the Town Area Committee had won consis-tently, no matter which party they belonged to or which party the rival candidates beloni!:ed to. In 1948 Banney Khan had supported Tribeni Sahai for Chairmanship and the latter won. Banney Khan was himself the Vice-Chairman of the Committee since 1937. Dharam Pal who was the Chairman of the Committee since 1953 had the unwavering support of Banney Khan through all these years . They feU· out on the eve of the 1971 elections. · Political differences evidently polluted the social life of the Data-ganj citizens. They carried those differences into their private lives and their social relationship was marked by series of quarrels and court cases. civil suit was filed in 1965 by Banney Khan and his brother P'earey Mian against Tribeni Sahai and others for perma-nent injunction restraining them room realising Tehbazari dues from the market. This six year old suit was, not surprisingly, pending on the date of the occurrence. criminal case was then filed against Banney Khan and Pearey Mian under section 307, Penal Code, for murderous assault on one Suleman whose brother Mohammad Sultan Vakil was an active follower of Tribeni Sahai. The case against Banney Khan was later withdrawn and Pearey Mian was acquitted. In 1967-68 Tribeni Sahai had filed case under section 120-B, Penal Code, charging Dharam Pal, Pearey Main and others for conspiracy tu murder him. In those days Dharam Pal belonged to rival party. In 1970 Tribeni Sahai had filed similar case against Pearey Main and others accusing them of conspiracy to murder him. On August 3, 1970 Pearcy Mian had lodged report against Tribeni Sahai and his bodyguard Radhey under section 394, Penal Code. It is obvious that point to gain on the political plane was enough excuse for all these gentlemen, to involve one another into grave charges like mur-der and dacoity. Dharam Pal who was strongly supported by Tribeni Sahai in the 1971 elections for the Chairmanship of the Town Area Committee has admitted in his evidence that in earlier days Tribeni Sahai used to harass him with false cases. In trial against two persons called Tullan and Beni untler section 394 of the Penal Code, Dharam Pal had rleoosed as defence witness that Tribeni Sahai had falsely implicated those persons as they were his supporters. Beni, in fact, was in Dharam Pal's emolovment as driver. It seems that the two accused were initially convicted but were acquitted in appeal. ¥ost of the cases described above seem to have been politi-cally m.ohvated .. The fact that such serious charges lacked true foundation was melevant to the way of life which these gentlemen had adopted.

It is ~~t suprising, though it is to be regretted; that in the din of th~se pohttcal .a!ld personal feuds the witnesses had heavy com-mitment ~o factitious loyalties. When key witnesses deny the obvious pretend 1gnoranc~ ~f fa~ts .within their sPecial knowledge and giv~ free play to their Imagmatlon on crucial matters, pursuit of truth

.becomes wild goose chase. An the befoggeld trial Judge has then .to discharge the unenviable duty of seeing and hearing such witnesses.

Take Jhilmili and Ram Prakash. The fire-arm injuries on their .person establish their presence at the scene of offence but to be pre-.sent is only to have an opportunity to witness. Presence does not .ensure truthfulness nor is it any insurance against the common human failing to involve the innocent along with the guilty. The presence .of Jhilmili and Ram Prakash may indeed discredit them if they were components of the procession which marched towards Tribeni Sahai's house. The question which requires examination is whether, as con-tended by the defence, they were members of the procession and were injured accidentally when the processionists opened fire or whether, as contended by the prosecution, they received injuries when as dis-interested by-standers they rushed to protect Tribeni Sahai.

It is surprising that the First Information Report lodged by Raien!dra Kumar Misra does not refer to the presence of either Jhil-mili or Ram Prakash. Rajendra Kumar ciaims to have seen the incident from close angle and he has mentioned in the Report the names of persons who had seen the occurrence Jhilmili and Ram Prakash were admittedly injured in the firing incident and witnesses have uniformly stated that there ·was enough light at the scene of occurrence. Jhilmili had received through and through bullet injury OD. the · thigh while Ram Prakash had received .a tire-arm burn on his abdomen. The question is not of the routine variety and one. cannot brush aside the failure of the first informant to refer to the two witnesses by saying that he may not have noticetl their presence. The point of the matter is whether, having seen them, he dropped them deliberately as they were on the side of the accused.

Rajendra Kumar Misra is himself relative of Tribeni Sahai, be-ing the brother-in-law of Radhey Shyam Sharma, the brother of Tri-beni Sahai. In the F. I. R. Rajendra Kumar mentioned that Loki, Ganga Ram and Aryendra had seen the incident. Ganga Ram was Bataidar of Tribeni Sahai and sometimes he used to live with Tri-beni Sahai. Arvendra is the sister's son of Dharam Pal who as Congress (R) candidate was contesting the election for the Chair-manship of the Committee with the active support of Tribeni Sahai. Neither Ganga Ram nor Loki was examined by the prosecution and the learned public prosecutor stated that Loki had been won over '?Y the. defence. Such bald assertion, unsupported by any data, is msuffictent to absolve the prosecution from its duty to examine wit-nesses whose evitience is necessary for upholding its case.

large number of persons had gathered at the scene of offence a?d. the Tnves_tigating Officer, Yogendra Sharma, himself 'arrived Wtthm short ttme. Arrangements were made to take Tribeni Sahai

and Radhey to Budaun in two cars but no notice whatsoever was. taken of the presence of Jhilmili and Ram Prakash or of the injuries received by them though they were ,crying in pain. Yogendra Shanna says that he asked constable to take them to the police station with instructions that they should be taken to the hospital thereafter. As matter of normal routine, they should have been taken to Budaun along with Tribeni Sahai and Radhey especially when the two cars of Dharam Pal and Rajendra Kumar were so readily available. U that was thought unnecessary steps should have been at least taken to send them to the local dispensary. Instead, they were first sent to the police station, then to the dispensary, back to the police Station, and ultimately to Budaun hospital. During the trial in the Sessions Court, Jhilmili's sons, Chotey and Chironji, were sitting in the group interested in the accuse~. Besides, Jhilmili's son-in-law Sia Ram and another relative Ved Prakash were contesting the election for the membership of the Committee as candi-dates of Congress ( 0). Jhilmili stated that he did not know which party Sia Ram and Ved Prakash belonged to. In fact, he pretended ignorance of any such political parties as Congress (R) and Congress. (0). He had voted for Sia Ram and Ved Prakash but said that he did not know what symbols were allotted . to them.

Jhilmili is secreti'lle witness for, though his son got employ-ment in the Provincial Armed Constabulary after the incident, he denied all knowledge about it and added that he was not even aware that the son was posted at Kanpur. He also denield that he had opened bank account two months after the incident with an initial deposit of Rs. 1000/- and stated falsely that the account was opened prior to the incident with deposit of Rs. 600. He stated that he had deposited sum of Rs. 50 only in that account after the incident but, true copy of his bank account shows that he had deposited sum of Rs. 500 in November, 1971. Jhilmili was asked whether he knew that Dr. Kohli was associated with the Jan Sangh and his answer was that since he had not heard the name 'Jan Sangh', he could not speak of the association.

. The manner in which Jhilmili claims to have received injuries is. difficult to accept. He says that he rushed to the rescue of Tribeni Sahai after Balak Ram had fired shot. The procession consisted at least of six persons anrl an open exhortation is alleged to have been given bv Dr. Kohli and othe.rs that Balak Ram should fire. It is im-possible that Jhilmili could have jumped into the firing range.

large part of the criticism in regard to Jhilmili's evidence holds good in regard to Ram Prakash also. Tribeni Sahai had filed pro-secution against Ram Prakash's father and others for conspiracy to murder him. Tribeni Sahai had also instituted case under section 107, Criminal Procedure Code, against Ram Prakash's father and others. Ram Prakash surprisin!!lv denied knowledge as to whether the first mentioned case was J?Cnding or not. He admitted that he was standing at the scene of offence for quite some time after the·

incident and that he did not tell any one including his mother that his injuries should be attended to. He saw Yogendra Sharma arrive but did not complain to him about the injury which he had received. Ram Prakash, like Jhilmili, made fanciful assertion that Dr. Kohli, Banney Khan and Pearey Mian shouted together in one voice asking Balak Ram to open fire. Realising the infirmity of that asser-tion, Ram Prakash made funny embellishment : "Banney Khan had initially started asking Balak Ram earlier than others. Banney Khan accused had shouted the word Balak Ram before other accused started saying. Then the sentences were completed by all of them. All the three accused had said the same thing i.e. 'Balak Ram Maro Goli' ",

The learned Sessions Judge was right for some of these reasons in holding that the evidence of Jhilmili and Ram Prakash could not be accepted without independent corroboration. The High Court tre-ated them as independent witnesses and held that they had corrobo-t'ated each other.

In fact. the High Court went step further and held that these two witnesses corroborated Rajendra Kumar Misra also. Rajendra Kuma::: is the brother-in-law of Tribeni Sahai's . brother Radhey Shyam Sharma who at the relevant time was stationed at Lucknow as Deputy Inspector General of Police and as Member of the Vigi-lance Commission. The trial court observal rightly that the witness .could not be disbelieved merely because he was related to Tribeni Sahai. But it gave various reasons for not accepting his evidence at its face value.

In the fir~t place, the omission to make reference to the presence of Jhilmili and Ram Prakash in the F. I. R. was not an oversight on the part of Rajendra Kumar. The omission was deliberate because it was not then known whether they would support the prosecution case. Jhilmili has stated in his evidence that he had seen Rajendra Kumar coming from the western side at the time of the incident. Apart from this, the conduct of Rajen'dra Kumar is highly unnatural. After the processionists dispersed and ran away he did not even try to find out what injuries Tribeni Sahai and Radhey had received and whether they required medical attention. He claims to have seen 1he whole incident but, on his own showing, as mute, silent specta-tor. He raisd:l no alarm, he did not ,go near any of the injured per-sons and made straight dash for the police station. There are also serious discrepancies as regards the spot from which he claims to have seen the incident. He sa;ys that he saw one incident from three or four paces east of the north-western corner of Aryendra's house. The particular spot is said to be about 18 paces from the scene of occurrence. According to Jhilmili, Ranjendra Kumar had come only as far as the house of one Dr. Suresh. Paragraph 5 of the Notes of Inspection made by the learned Sessions Judge shows that person standing in front of Dr. Suresh 's house could not re-l::ognise persons standing at the scene of occurrence. At the time the incident started, Rajendra Kumar claims to have been sitting at

his Baithak. But neither in the F. I. R. nor in his police statement did he mention where exactly he was at the time when the commotion started. In the F. I. R. he alleged that Pearey Mian, Banney Khan and Kailash were also among the assailants but he admitted in the Sessions Court that these persons had not participated in the actual assault. It is significant that the witness had not mentioned Banney Khan's name before the Investigating Officer at all in connection with this incident and was unable to ,give any satisfactory explanation of this omission.

We do not propose to dissect the question whether the F. I. R. was lodged immediately as claimed by Rajendra Kumar or whether it was biged on the next day as contended by the defence. The better view would, however, seem to be that it was lodged soon after the incident though perhaps not as immediately after the incident as Rajendra Kumar claims. The Sessions Judge has expressed his finding with welcome restraint in saying that the case of the defence that the F. I. R. was not filed at the time at which it purports to have been filed cannot be said to be "wholly unfounded."

That leaves for consideration the evidence of Aryendra who also claims to be an eye-witness. He is the sister's son of Dharam Pal who was contesting the election for the Chairmanship of the Com-mittee. Dharam Pal has admitted in his evidence that he had brought up Aryendra and that he was living with him for about 17 or 18 yel!n; after the death of his father. Aryendra is said to have shifted· to the house of his father-in-law because his mother-in-law was all alone in the house. That house occupies vantage position being quite near the scene of occurrence.

In the first place, there is no reliable evidence to show that Aryendra was living in the house of his father-in law since MaN;b, 1970 as alleged by him. After leaving Dharam Pal's house he admit· tedly shifted to the house of one Umrao Lal Halwai but he says that he lived in the house of that man for two or three months only. The learned Sessions Judge has referred to the voters' lists and other docu· ments to show thaf it was doubtful whether Aryendra had left the Halwai's house and was living in the house of his father-in-law at the material time.Aryendra claims to have been sleeping on the eastern roof of his father-in-law's house. It was common ground that if he were sleeping on the western side, which was more convenient place. he could not have seen the incident. He explained this bv saying that there used to be do~ on the western roof to keen watch and the eastern roof had nfl regulal"' staircase making it difficult for the dog to ~ret on th~re. When his statement was recorded bv the Sub-Divisional Macistrate under section 164 of the Criminal Procedure Code Arvendr~. ~wed th~t Pearev Mian. Bannev Khan. Dr. Kohli, B~lak Ram. K~Ph~ft ::tnd Nathoo were "also" in the procession. His case then wa~ tl,at th~re were others also jn the orocession. In fact, he had state~ then that 8 or 10 persons had stood near the door of

the house of one Uma Shanker, statement which he falsely denied to have made. It is not without relevance that as many as 11 others were arrested on the night of the incident for conspiracy to murder Tribeni Sahai. Finally, Aryendra has also like the other eye~witnesses given the incredible versio~ that Banney Khan, Kohli and Pearey Miar1 exhorted Balak Ram in one voice to open fire.

It cannot be overlooked that the statements of Jhilmili, Ram Prakash and Aryendra were recorded under section 164, Criminal Procedur·~ Code, in June 1971, soon after the incident. The Investi~ gating Officer says that he got the statements recorded by way of precaution. That could be true and it would be_ wrong to find fault with the Investigating Officer merely because he got the statements .l of these witnesses recorded under section 164. Nor can the evidence · ,J of witness be discarded for the mere reason that his statement was recorded under section 164. But the High Court overlooked that the -~ ~ evidence of witnesses whose statements are'recorded under section 164 must be approached with caution. Such witnesses feel tied to their previous statements given on oath and have but theoretical freedom to depart from the earlier version. prosecution for perjury could t} be the price of that freedom. It is, of course, open to the Court to · accept the evidence- of witness whose statement was recorded under -section 164, but the salient rule of caution must always be borne in mind. That is. all the more necessary when almost all the eye~ witnesses are subjected to this tying~up process. E'ven Aryendra, the sister's son of Dhatam Pal, was not thought to be above suspicion.

.l ,J • -~ ~ t} 1 1

We have indicated broadly some of the more serious infirmities in the evidence of the eye-witnesses in order to show that the Sessions Court was justified in taking the view that it was unsafe to act on their evidence without corroboration. Ignoring the impact of these infirmities, the High Court erroneously treated the witnesses as inde~ pendent and held that they had corroborated one· another. None of the four eye~witnesses was true enough to afford corroboration to the evidence of others. Corroboration in such cases must be forthcoming from an independent source.

The prosecution relied very strongly on the three dying declara~ · tions alleged to have been made by Tribeni Sahai. The first of these was made to Dharam Pal, the second to the Investigating Officer Yogendra Sharma and the third was made in the Budaun hospital before the Sub~Divisional Magistrate. It is necessary to examine closely the circumstances attendant upon these dying declarations.

Not much reliance was placed before us on the first two dying declarations and rightly so. In regard to the oral dying declaration alleged to have been made by Tribeni Sahai to Dharam Pal immediate-ly after the shooting outrage, neither Jhilmili nor Ram Prakash who were admittedly present at the scene of occurrence all through say

BALAK RAM V. U.P, srATE (Chondrach rr , J .) 769 thing about that dying declaration. Even Ary f. ~~uram pal's sister's son did not say that Tribeni Sah e~ rad who . is ec!aration to Dharam Pal. Swprisingly, though th~ ~a ~ d~mg ~·as other~~ prompt, the statement of Dharam Pal was ~~~~~u~ the tnvesugatmg OJticer on June 2, 197! which was six day ftcr tlJY incident had taken place. · s l The second dying declaration is alleged to have been made to I the rnvcst_igating. Ofti.cer. Inwstigating Oflicers arc keenly interested in the Crull ion of theJr efforts. and th~ugh we do not suggest that any assumption can be made aga1nst thel.l' veracity, it is not prudent to I base the conviction on dying declaration made· to an Investigating Olliccr. Yogendra Shar!Da says that while Tribeni Sahai was lying in cnr at the scene of offence he made statement implicating the accused. Yogendra Sharma produced true copy of an entry in his · case diary stating that even as he was still in the car, he recorded the dring declaration in the case diary which he was carrying with him. It is diflicult to appreciate why, if there was time enough to reduce the dying declaration into writing, Yogendra Sharma did not obtain Tribcni Sahai's singature or at least the signatures of any of the large numb::r of persons who had surrounded the car. Rule 115 of the U. P. Police Regulations expressly enjoins the Investigating 9fficer to record dying declaration, if at all, in the presence of two r¢s-p<:ctablc witnesses and after obtaining the signature or mark o! !he declarant at the foot of the declaration. Besides, if the Investigating Officer was in such haste that he did not even think it propcs to wnit at the police station until the various columns on the first page of th.c . I . R. were duly filled in, it is rather difficult to believe that s~m~d by such u pressing sense of emergency. he would t~e the case ~Jary with him on the ofT chance that dying dcclnratJon may be 1n the ofling.

The dying declaration (Ex-Ka-47) made by Tribeni S~ai nt the [1]!.udaun hospital was recorded by the Sub-Division:U Mng~stratL' Mf~ S~da Ram at 11 .50 p.m. Learned counsd appcar~ng .for the ap~st l.tnts submitted that thb dying' d~claration is fabncatJon a~d ~ t~crcforc b:: discarded We :ire not indined to go that f~r. . . ~~r~·unlstunc~:s surroundi.ll" the ·d.,..in!! ~.kclaration, though uh~unspmtnhge, ijrc IDi[llcrarchy ][. ]~lr'II . Ot . ~trong as .t 1 tc Sub-Divisional enough to "' · · ju~tify MJ£1-th.: -· .sv11:w tra • t c, t I the mt [0 1 ]Civ1l . " meers • Surgeon fnlas sc Jgh document "" ~ tn the int II:[ .. MagiStrate hatched consp~tacy to brtllo t controvert al!~ •. ~~tstcncc. The Civil services have no platfo~; the~cfore, ncces· ~arg. liOns, howsocwr or ave.> anJ unfounded. It [1 ]and character · v that 1 to • • tltcir career • ough larQcs calculated to 1mpa1r ' We arc not Prep~ ~d>t to b~ accepted except on th~ cl~arcs~. b~f~1(ion. 'rc to hold that the dying dcclaratton [15 ]a '[1 ]•

II AIL . whether. in the ctr• curnsta [1 ]e same, one mu~t face the qucstto~ uncorroborated dying Uq;lara~·ces of the case. it is safe to a.ct on t ~f Dr. R. C. Ban>al l.... 192 ll.·ho s Was ton the Medical Officer of Tribeni Suhai. of The the Distnct ev1de~cc Ho~. p it·• ' 1J nud<llln, shows ur>.Cins

that Tribeni Sahai was in critical condition when be reached the hospital. &:fore the dying declaration was recorded, an attempt was made to give him saline but even after making incisions on the hands and ~ the attempt did not succeed. Dr. Bansal has stated that Tribeni Sahai was in "severe pain", that he was unqer ''great shock", that there was "-profuse bleeding" from the injury, that his respiration wzs-poor, that his pulse was "feeble and thready'' and that the ''blood pressure was not recordable". Dr. Bansal explained that by "shock"' he meant "~ state of profound depression of the vital processes of the body resulting from injury." It taxes one't ordinary experience of human a.ffairs to accept that Triheni Sahai, th113 tormented,. was in _a fit mental and physical condition to make ~ volitional 512!ement after he had reached the Budaun hospital. .

Quite apan from this consideratio~ the dyillg declaration can haTe hardly any ro:ieatial value because Tribeni Sahai was in the tn.idit of friends and admirers rimt since the· time of the incident until the dying declaraticn was recoided. Dharam Pal was in his constant com-· pany and it is not unlikely th~t names of political opponents like Balak Ram, Ik.. Kohli and Banney Khan were freely bandid about. The dying decbration could then .be naturally influenced by the opinioo and inferences of close friends like Dharam Pal,

If ·Tribeni Sahai were to go on record as person of unquestioned rectitude it ~ perhaps, have been possible to approach the dyine declaration futle differently. But the long lists of cases which he had filed against the political oppo~ts shows th,at he hc,td llO com-punction in pointing an accusing finger at inn~nt persons. Dharam Pal himself was victim of such machinations and even he conceded that Tribeni Sahai. used to barass him by making false charges whea he was . in the opposite camp.

Therefore, we find-it impossible to accept the cc·nclusion of the High Court that : "AD the three dying declarations of Sri ' Tribeni · Sahai orovide full corroboration to the testimony of the two injured ey~ witnesses ard Aryendra that it was Balak Ram,- wh'o was. res-pon<;ibie for the fatal iniory to Sri Tribeni Sahai and that he fired instkated by Dr-. Kohli, Pearey Mian and Banney Khan.

The aforesai:f discussion of the various items of evidence must at least vield tl!e result that the conclusion to which the Jeamed Sessions Judge came was reasonable conClusion to come to. It can-not be denied thrt two views of the evidence are reasonably possil>Ie in re~rard to the participation of Nathoo, Dr. Kohli and Banney Khan. The High Court, therefore. ought not to have interfered with the judgment of the &s.sions Court in their favour.

revolver ~ recovered from the house of Dr. Kohli at the tillle of his arrest on the nillht of the incident and it is said that the rev.,Tver emitted foul smell. If anything, the -evidenee of the balli~tic exoert Sh'-am Narain (P. W. 14) shows that no11e of the five emoties recovered from the scene of offence could ha,·e been ,fired

from Dr. Kohli's revolver. The expert was also unable to give definite opinion that the bullet, Ex. 25, which was recovered from drain near the scene of offeDC;! was fired from Dr: Kohli's revolver.

In regard to ;Natlloo, he is not named in the dying decJarati<lD recorded at the Budaun hospit31. What is more, his name whicl; wt:s n first written towards the end of that dying dfclaration was su~Jie­quently scored off. Mr. Sada Ram, the Sub-Divisional Magistnk, says that he scored off Nathoo·s name from the dying declaration because Tribeni Sahai did not s:J.Y anything when NathoO:S name was read out that was .fair of Mr. Slda Ram but when Nathoo scores one more point. •

The old Banney Khan is an old hand at politics. He was Vice-Chairman of the Town Area Committee since 1937 and e~ Dharam Pal has admitted that Banney Khan was king-maker. He was 79 years old on the date of de incident and the only evidence against him consists of that artificial 2SSertion that he, Dr. Kohli and Pearcy Mian exhorted Balak Ram Vlifu one voice to shoot at Tribeni Sahai. Banney Khan's. implication could reasonably be traced to the p_ersoria1 enmity between him and Tn'beni Sahai.

In the result the order of conviction and sentenCe passed hy the ·High Court against Nathoo, Dr. R. P. Kohli and .Moham.m.ad Sayeed Khan alim Banney Khan -is set aside and their appeals are allowed. Banney Khan is on bail and be n~ not surrender !0 his bail. Nathoo and Dr. Kohli shall be released fGrthwith. ·,

'fhilt leaVeS U5 for COflSidaatiOU the appeal filed by Balak Ram who has been found guilty by the Sessions Coort as wen as the High Court. Mr. Frank AnCJooy made an impa.ssioned pea for his l!C<luittal but we are unable to· accept the submission of the learned • counsel. -

It is urged that Loki and Ganga Ram whose names were mentio.-ed in the-F. I. R. were not eDmined and therefore an adwrse inf~­ence ~ould be drawn against the prosecution; that the releVllftt columns in the Inquest Report were deliberatdv left blank so as tl'l . facilitate manipulation of aidence. that the F.lR was ante-dated; that the site plan was delibe-rately drawn in va.,oue and general manner; that there was no i..mmediate motive fur the otfen~ and that the High Court had failed to coosider the evidence of the. defence • witnesses at all which it was its duty to consider in reference und~ section 374, Criminal Procedore Code.

The more important of the!.! points stand answered by what we have already said while d.iscussmg the appeals of-the other accused. But. it is necessary to add th:n in tJ."e first obce. the othc- accused "had the benefit of an order of ~t'...:.l l)assed in tho:rr favour bv the tri:U Cl)urt and secondly we b:n""e onlv endeaV'Otlred '-O ~·e that-i;IDce the view taken by the trml court was -reasonable VlCW to take.

U 97 5] 1 S.C.R.

the High Court ought not to have interfered with the judgment of acquittal.

In regard to Balak Ram, there is concurrent finding that · the shot fired·by him caused the death of Radhe; and we see·no reason for taking different view. The evidence in regard to ~e part· played by ·him is natural and consistent aJ;ld is co~oborated J:ly the · opinion of the BaUistic Expert. Such corroborahon was lacking as against others. The evidence of the Ballistic Expert shows that the bullet (Ex. 27) which was extracted from Radhey's body was fired from the pistol (Ex. 5) belonging to Balak Ram. Mr. Anthony made se·vere attack on the evidence of the expert and in order to show infirmities in that evidence he read out to us various passages trnm "The Identification of Firearms and Forensic Ballistics" by Major , Gerald Burrard; J. S. Hatcher's "Text Book of Firearms Investig~-. tion. Identification and Evidence" (5th Ed. 1946)'' and Modt's ··Medical jurisprudence and Toxicology." We have considered these submissions but are unable to see reason strong enough to justify reversal of the concurrent view taken by the two courts. The normal rule that this Court does not reappraise ~vidence in such cases must apply. ·

Stated. briefly, ~r. Anthony"s contention is that the bullet (Ex. 25) · which was recovered from the scene of offence nlUSt have been the one which after hitting Tribeni Sahai made an· exit wound not since that bullet. according to the ballistic expert, could not have beenfired from Balak Ram's pistol (Ex. 5), he cannot be held guilty for causing the death of Tribeni Sahai. Mr. Anthony says that the evidence of the eye witnesses stands falsified by the evidence of the expert. The difficulty in accepting this contention is that there is no warrant for saying that the bullet Ex. 25 must be the one which passed. through Tri~eni Sahai~s body. · Mr. Anthony spent considerable time in showing that. the striations on the bullet (Ex. 27) which was extracted from Radhey's body are of different pattern from the striations on the test. bullets · fiied from Balak Ram's. pistol. The evidence of the expert bas been.· closely Considered . by the High Court and_ we· consider their finding on this aspect as open to no exception. -·-.

BalakR3'm-;x~miried tw~ witnesses, Shiv Govind Singh (D.W.7) and Udainarain Singh (D. W. 8) to establish his plea of alibi but that evidence was. rightly· rejected by the trial court It is in the ·least degree likely that Balak Ram who was contesting the el~tic;m for . Otainnanship of the Committee would be away from· lhe hubbub of politic· on the eve of elections. All the same, the High _Court ought to have consideo..red that evidence for what it was worth. In re~ ference for confirmation of the death sentence under sec. 374, Criminal Procedure Code, the High Court must examine the entire evidence fo( itself, iridependently of the Sessions Court. (See Bhupendra Singh v. ·The State of Pllniab.(t), and !amman and Ors. v. The (I) (1968]3 S.C.R. 404.

State of Punjab([1]). Fortunately, the failure of the High Court to examine the defence evidence has led to no miscarriage of justic~.

Balak Ram': conviction must, therefore, stand. On the question of sentence, there is no reason for interference. Balak Ram ·was carrying pistol and he fired from that pistol without any provoca-tion either from Tribeni Sahai or from Radhey. Neither of them was armed, not even with walking stick, and all that Tribeni Sahai did was to ask the processionists to desist from shouting ·vulgar slogans. Politics may or may not be a· clean g1me but no court can suffer with equ:mimity such flagrant defiance of law by m~mbers of political parti-:s, whatever their colour or creed. They must know that it will not pay to carry pistols in processions for being used as weapons of offeace against political rivals.. Accordingly, we confirm the order of conviction and the various sentences including the sentenre of death imposed on 1Balak Ram and dismiss his appeal.

Appeal dismissed.