Ram Shankar Singh And Ors. vs State Of Uttar Pradesh

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 19 April 1955

Coram: Sinha, J.

In this case the Court noted that the petitioners, identified as Ram Shankar Singh and others, had filed an appeal by special leave challenging the judgment and order of a single judge of the Allahabad High Court. That High Court judgment had confirmed the earlier judgment of the Sessions Judge of Azamgarh insofar as the appellants were concerned. The Sessions Judge had convicted the appellants under Section 395 of the Indian Penal Code and sentenced each of them to rigorous imprisonment for a term of seven years. The trial before the learned Sessions Judge had involved six persons – the three present appellants together with three other individuals, one of whom was named Bhirgu Singh – for the offence of dacoity. The Sessions Judge had found all six accused guilty and imposed the same sentence on each. On appeal, the Allahabad High Court acquitted the three persons who were not the present appellants, but upheld both the conviction and the seven-year rigorous imprisonment sentence of the three appellants. Consequently the present appeal seeks to set aside the conviction and sentence that were affirmed by the High Court.

The Court described the occurrence of dacoity that formed the basis of the charge against the appellants and others as having taken place at the residence of a man named Kalapnath Singh, designated as PW-1, who the Court referred to as the complainant. The complainant transmitted a written report to the police station at Mohammadabad in the sub-district of Ghosi through the village chowkidar, identified as PW-8. That report was treated as the first information report (Exhibit P-6) and was dated 4-6-1951 at 3:15 a.m. The police station lay approximately four miles from the village of Dangauli, the location where the alleged occurrence was said to have happened. According to the report, between one and two a.m. the complainant, his brother-in-law (PW-2) and his servant Baljore (PW-4) were sleeping on separate cots in an open courtyard in front of the house when they were awakened by the intrusion of fourteen or fifteen persons who were armed with lathis and spears. Some of the dacoits beat the complainant, while others kept watch over the three persons mentioned, and a female inmate of the house, Mrs. Pyari (PW-11), who was the complainant’s sister-in-law, opened the entrance for them. The intruders entered the premises and removed boxes containing ornaments and clothing, and they also allegedly snatched ornaments from the neck of the complainant’s wife, Mrs. Saraswati (PW-12). An alarm raised by PW-11 attracted the arrival of several villagers, namely Surajbali Singh (PW-3), Balai Ahir (who was not examined), Chhotu Singh (PW-13), Ramchandra Tiwari (PW-6) and Jagdish Singh (PW-7). Some of the dacoits also beat PW-3 and PW-6. As additional villagers assembled, the dacoits made good their escape with the stolen property. It was further alleged that the dacoits used electric torches and the light of a lantern kept burning at the door to identify themselves, and that under that illumination the appellants, together with three other persons from the complainant’s village, were named as accused. The loot was said to be worth five hundred rupees. The three appellants belong to the

The three appellants belonged to the neighbouring village of Alipur. The Sub-Inspector, identified as PW 14, arrived at the place of occurrence at five in the morning. When he reached the spot, the complainant handed him a list of the stolen property, marked as Exhibit P-2. The Sub-Inspector then inspected the surrounding area and observed various items scattered about. He also discovered a lantern hanging at the door of the complainant’s house and took that lantern into police possession. About three furlongs to the west of the complainant’s house he found three boxes together with some torn pieces of cloth; he seized those objects and prepared recovery lists for them. He sent the injured persons – namely the complainant (PW 1), Suraj Ball Singh (PW 3) and Ramchandra Tiwari (PW 6) – to receive medical attention, noting that each of them had suffered simple injuries caused by a blunt weapon such as a lathi. He proceeded to interrogate the complainant and other eyewitnesses, specifically PW 2, PW 3, PW 4, PW 6, PW 7, PW 10, PW 11, PW 12 and PW 13, and recorded the statements of some of those witnesses under Section 164 of the Criminal Procedure Code. After completing his investigation, he submitted a charge-sheet. As a result, only the six persons named in the First Information Report were committed to trial after the requisite commitment proceedings were completed. The charge framed against those six accused read as follows: “That you, on or about the night of 3-4 June 1951 in village Dangauli, Police Station Mohammadabad, at about midnight, committed dacoity at the house of Kalapnath and thereby committed an offence punishable under Section 395 of the Indian Penal Code, cognizable by the Court of Session, Azamgarh. Accordingly, you are directed to stand trial on the said charge.” The defence, as disclosed in the accused persons’ examination under Section 342 of the Criminal Procedure Code and during the cross-examination of prosecution witnesses, asserted that they had been falsely implicated because of a pre-existing enmity between the complainant’s party – to which the prosecution witnesses belonged – and the accused Bhirghu Singh, who had previously been convicted and later acquitted by the High Court. The appellants from Alipur advanced an identical defence, contending that because they had assisted Bhirghu Singh in his dispute and litigation against the complainant’s party, they too were falsely implicated. It is noteworthy that although fourteen to sixteen persons were alleged to have taken part in the dacoity, only the six individuals named in the First Information Report were placed on trial. None of the other unidentified dacoits were prosecuted, apparently because no eyewitness could identify them during the investigation. The charge did not name any person other than the six accused as having participated in the occurrence. Apart from the complainant and the occupants of his house, the eyewitnesses identified were PW 2, PW 4, PW 11 and PW 12, as well as Surajbali (PW 3), Ramchander (PW 6), Jagdish (PW 7) and

The trial court reviewed the material evidence in a routine manner and, after considering the testimony of the eye-witnesses, concluded that “there does not appear to be any reason why the testimony of these witnesses should not be believed.” Relying on that conclusion, the court found no obstacle to convicting and sentencing each of the accused as previously indicated. This conclusion was reached despite the fact that the assessors, who ordinarily are not lenient in dacoity cases, were unanimous in their opinion that none of the accused persons was guilty. The assessors, as will become evident from the background of earlier litigation between the two parties in the village, naturally regarded the prosecution’s evidence on identification of the accused as unreliable.

On appeal, the learned judge observed that it was noteworthy that Bhirgu Singh, although a resident of the same village, was not alleged to have taken any step to conceal his identity, such as using a dhata or any other device. The judge described this circumstance as “unnatural and improbable,” explaining that ordinarily individuals do not venture to commit dacoities in their own village for fear of being identified. Even when they are involved in planning a dacoity in their own village, they typically hire persons from outside to avoid easy identification and keep themselves in the background. If they must be present at the scene, they generally take ample precautions to cover their faces. The judge found it difficult to believe that Bhirgu Singh, who was well known in the village and on bad terms with Kalapnath Singh, could have participated in a dacoity in his own village without taking any precaution to conceal his identity. The judge applied this observation only to the three accused who belonged to the complainant’s village and not to the three accused from the adjoining village of Alipur, who were also known as partisans of Bhirgu. The complainant, as well as some eye-witnesses, admitted that these appellants had been well known to them for the past six or seven years. For example, a veiled woman witness (PW 11) claimed to have known the first appellant, Ramshankar, before the incident. However, in cross-examination she admitted, “Prior to the dacoity I did not know any man of Alipur. After the dacoity nobody gave me the name of anyone of Alipur. During the dacoity nobody told me the name of anyone of Alipur.” The fact that these appellants were familiar to the eye-witnesses who testified against them becomes clear from the details that emerged during the cross-examination of the prosecution witnesses.

The Court observed that the Thakurs of the village where the dacoity occurred are all descended from a common ancestor, and consequently those Thakur witnesses who formed the majority of the prosecution’s identification witnesses are naturally related through the male line. The principal accused from that village, identified as Bhirgu, also belonged to this agnatic group. Bhirgu and Lalta were brothers, and it was stated that Lalta had been adopted by Harbans Singh, who had no biological son. The other male relatives of Harbans—namely Surajbali (identified as P.W. 3), Jagdish (identified as P.W. 7) and Chhotu (identified as P.W. 13)—were reported to be the first persons who responded to the alarm raised by an inmate during the dacoity. These relatives were not prepared to accept the legal consequences of Harbans’s adoption of Lalta, particularly the rule that Harbans’s property should pass to Lalta as his heir. This disagreement produced a direct clash between the party of Lalta’s brother Bhirgu and the party to which the complainant belonged, namely the witnesses P.W. 3, P.W. 7 and P.W. 13. The clash gave rise to a criminal assault case in which Bhirgu acted as the complainant, alleging injuries to his head, while the aforementioned witnesses were named as the accused. In his statement recorded under Section 342 of the Criminal Procedure Code, Bhirgu admitted the following facts: “Harbans had no issue. He adopted my brother Lalta Singh. He had a field. After adoption Chhotu, Surajbali, Jagdish and others wanted to take possession of that field. A mar-pit took place in respect of that field between myself and other members of my family on the one hand and Chhotu, Surajbali and Jagdish on the other. Galpu Singh also took part in that mar-pit on behalf of Chhotu, etc. I received injuries at my head during that mar-pit. My hand bone was also fractured. Kalpu also received injuries at his head during that mar-pit and suffered many other injuries. I lodged a complaint under Section 323 of the Indian Penal Code but I left out Kalpu because he had received many injuries. This happened two months prior to the dacoity. Because of this and because of other litigations I have been falsely implicated.”

The Court further noted that this defence had also been presented before the Committing Magistrate, and that the prosecution witnesses—including the complainant and the witnesses identified as P.W. 3, P.W. 6, P.W. 7 and P.W. 13—had been interrogated in detail at that stage and had admitted the existence of the earlier litigations. However, at trial those same witnesses either claimed a lapse of memory or deliberately denied having made those earlier statements. For instance, when P.W. 1 was cross-examined, he was asked whether he had previously stated before the Committing Magistrate, “After adoption a litigation took place between Bhirgu Singh and Surajbali, Chhotu and Jagdish?” He responded, “I do not remember.” In a similar manner, Surajbali, who is P.W. 3, was questioned about his prior statement before the Committing Magistrate that he had said, “I had litigation with Bhirgu Singh. In that case Chhotu’s brother Ram Adhar and Rikhdeo, the father of Jagdish, were also with me. A criminal case had also been fought out.” Surajbali answered, “I do not remember.” The Court recorded these refusals to recall earlier admissions as part of the evidentiary record.

The witness was confronted vigorously during cross-examination after he had earlier denied, in the same examination, that he ever had any litigation with Bhirgu concerning the property of Harbans Singh. In addition, P.W. 7 underwent a severe cross-examination in which questions regarding personal enmity and his previous statements before the Committing Magistrate were raised. Despite being asked to recall those earlier statements, he again denied having made such a statement at that time. Although he denied any knowledge that Harbans had adopted Lalta, he subsequently admitted that a case had been fought between Harbans and Bhirgu on one side and his father, the brother of P.W. Chhotu, and Surajbali on the other side. He also confessed that, with respect to Harbans’s land, a criminal proceeding under Section 145 of the Criminal Procedure Code had been instituted involving the same parties. That criminal proceeding began before the dacoity took place and was concluded only after the incident in question. Initially, the witness seemed reluctant to acknowledge that a criminal prosecution concerning those very lands existed, but he eventually affirmed that Bhirgu had indeed filed a criminal case in which the witness himself was named as an accused, specifically for the occurrence that resulted in the complainant sustaining a head injury. Moreover, the witness affirmed that members of the families of Surajbali and Chhotu, as well as Ram Adhar – the brother of Chhotu – had also been named as accused persons in that criminal prosecution. Consequently, there existed ample evidence on record, as also found by the High Court, indicating that a dispute over Harbans’s property had arisen between the party led by Bhirgu, the brother of Lalta who had been adopted by Harbans, on one side, and the prominent prosecution witnesses on the other. The dispute initially commenced before the Tahsildar, apparently on a revenue matter, and was later followed by a criminal prosecution of those witnesses for assault, brought by Bhirgu. Subsequently, proceedings under Section 145 of the Criminal Procedure Code were instituted by the magistrate to maintain peace between the two contending sides, and those proceedings too were terminated after the incident under consideration. Regarding Ramshankar, the first appellant, there was an additional suggestion of enmity between him and Rambaz Singh, who was identified as the maternal uncle’s son of P.W. 2. The witness denied any such enmity, but P.W. 4, Ramchander, admitted that such hostility existed. It was suggested during cross-examination of the complainant that Ramshankar and the other accused individuals possessed a higher social standing than the complainant, an assertion the complainant firmly rejected. He also denied that Ramshankar owned a brick-built house, held zamindari status, or cultivated three plough-lands. However, P.W. 4, in his cross-examination, conceded that Ramshankar indeed possessed a brick house, exercised some zamindari authority, and cultivated three plough-lands, and further acknowledged that both Bhirgu and Ramshankar were men of higher status than the complainant. This admission proved to be the most damaging revelation for the prosecution’s case.

According to the testimony of the prosecution witness, the appellants had consistently assisted Bhorgu in obtaining possession of the disputed fields. The witness referred to Bhorgu’s efforts on behalf of his brother in the conflict with the prosecution witnesses. The Court observed that the High Court was justified in dismissing the evidence of the prosecution witnesses because those witnesses were not truthful and appeared to be strongly biased against the accused. The Court noted that the case against the three accused from the same village did not collapse merely due to a lack of identification evidence; rather, the substantial body of evidence was compromised by unreliable testimony. However, the Court found that the High Court erred in separating the case of those three accused from the case of the appellants, who lived in the neighbouring village of Alipur. The Court held that the High Court had not given adequate weight to the cross-examination of the prosecution witnesses, which demonstrated that all six accused were members of the party opposing the complainant and had motive to use a fabricated dacoity case to implicate their enemies. In the Court’s view, there was no valid basis for treating the appellants differently from the other accused who had been acquitted by the High Court. While the Court ordinarily refrains from interfering with factual findings of lower courts, a clear question of law arose from the High Court’s conclusions, warranting further examination.

The charge that had been framed against the six persons on trial specified that those six individuals, and not any additional unknown persons, had committed dacoity. After the High Court’s findings led to the acquittal of three of the six jointly tried individuals, only the three appellants remained as parties potentially liable for the alleged crime. The Court explained that a retrial could be ordered on a properly framed charge that would give the accused sufficient notice that more than five persons might have been involved in the alleged offence. The trial court had been unable to discuss this issue because of the way it interpreted the evidence. Since the trial court had convicted all six persons under Section 395 of the Indian Penal Code, no legal question regarding the charge could arise at that stage. The High Court likewise had not raised this issue, apparently because all the appellants were considered to share the same fate and a common argument was advanced. The Court concluded that, having determined that three of the six convicted persons were not guilty, the High Court should have examined whether satisfactory evidence existed to establish the guilt of the three remaining appellants on the charge as framed.

In this case the Court observed that the three remaining accused could have been found guilty under Section 395 of the Indian Penal Code on the basis of the charge that had been framed against them. Nevertheless, even if the evidence did not suffice for a conviction under that provision, the Court noted that the same persons might still have been culpable for the lesser offence of robbery, which is punishable under Section 392 of the Indian Penal Code, provided that the prosecution could demonstrate that each of them had taken part in a theft and had employed violence in the course of that theft. The Court emphasized that, in order to sustain such a conviction, the factual conduct of each individual in connection with the alleged incident needed to be examined separately. The Court found that this individualized assessment had not been carried out. Moreover, the Court observed that the material presented by the prosecution failed to attribute a specific role to each accused person, and that the absence of such detailed evidence would ordinarily require the conduct of a fresh trial. In response to this deficiency, counsel for the appellants submitted, a submission that was not disputed by counsel for the prosecution, that the appellants had already spent slightly less than three years in custody, a term that could be considered sufficient punishment under Section 392 of the Indian Penal Code. The Court held that these circumstances indicated that the matter was not suitable for ordering a retrial on a revised charge. The Court added that, had the evidence against the appellants been open to serious criticism, it would have ordered a retrial without hesitation; however, having examined the present facts, the Court concluded that a retrial would not serve the interests of justice. Consequently, the Court allowed the appeal, set aside the convictions, and directed that the appellants be released immediately. Justice S.R. Das concurred with this conclusion, stating his agreement with the reasoning and indicating that his own decision rested wholly on the second point raised by his colleague. Justice Bhagwati expressed his agreement and added that there was nothing further he could contribute to the judgment.