Zabar Singh vs The 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: 6 December, 1956

Coram: Govinda Menon

In the matter titled Zabar Singh versus The State of Uttar Pradesh, decided on 6 December 1956, the Supreme Court of India delivered a judgment written by Justice Govinda Menon. The appellant, Zabar Singh, had been convicted under Section 302 read with Section 34 of the Indian Penal Code for participating in the murder of Sahib Singh, and he had been sentenced to life imprisonment. The Court granted special leave to appeal, and the appeal was subsequently placed before the Court for consideration. According to the findings of the learned Judges of the Allahabad High Court, the appellant was entitled to an acquittal, and the present judgment outlines the reasons for that conclusion. The appellant was tried by the Sessions Judge of Mainpuri with two co‑accused, identified as Lalman and Poti Ram, for allegedly shooting Sahib Singh on 22 May 1953 at the bus‑stand in the Kuraoli Town Area. The deceased was in the process of alighting from a motor‑bus at the bus‑stand when the alleged shooting took place. The prosecution alleged that, because of factional politics in the area, enemies of Sahib Singh had engaged the appellant and the two others to carry out the murder. The prosecution case rested on the testimony of six witnesses, of whom the High Court found four to be unreliable and consequently relied only on two witnesses. The first of these, the police informant identified as Chhotey Singh, had lodged the original police report and was regarded as the principal witness. The second, identified as Maiku Chowkidar, also appeared in the police report and was another material witness to the case.

It was alleged by Chhotey Singh that the appellant discharged the fatal bullet, while the co‑accused Lalman and Poti Ram were found holding lathis. This version of events appeared both in Singh’s testimony before the Court and in the First Information Report attached as Exhibit p.1. A dying declaration of the deceased, recorded at the hospital and marked as Exhibit ‘Q’, named three individuals present at the scene: the appellant, Uma Shanker and Chandrasen Jain. Consequently, the First Information Report and the testimony of Chhotey Singh identified Lalman and Poti Ram as the appellant’s associates. The dying declaration, however, attributed the actual shooting to Uma Shanker and merely placed the appellant at the bus‑stand. The learned Sessions Judge rejected the authenticity of the dying declaration and based his judgment primarily on the evidence of eye‑witnesses. In contrast, the High Court judges held that the dying declaration should be regarded as truthful, and they therefore disagreed with the Sessions Judge’s conclusion. Finding that only the testimony of Chhotey Singh implicated Lalman and Poti Ram, the High Court acquitted those two co‑accused. The High Court then modified the trial Court’s conviction of the appellant under the relevant statutory provisions.

The trial court had recorded a conviction under Section 302 read with Section 34 of the Indian Penal Code, but the appellate judges expressed doubt that the accused played the chief role in the murder. Consequently, the appellate judges were not inclined to rely on the testimony of witnesses Chhotey Singh and Maiku Chowkidar, who asserted that the accused fired the fatal shot. The High Court, in its findings, did not accept the oral testimony in its entirety, and it specifically refrained from acting upon the portion that attributed the shooting to the accused. Nevertheless, the dying declaration identified the accused as one of the persons present at the scene, although it named Uma Shanker as the individual who actually discharged the fatal bullet. Based on that identification, the High Court concluded that the accused had participated in the criminal act of the murder. The Supreme Court found it difficult to agree with that conclusion, noting that the prosecution had not alleged any associate of the accused other than Lalman and Poti Ram in the murder. No evidence was adduced to show that any unidentified or unknown persons acted together with the accused to commit the offence. The prosecution witnesses also failed to produce any material linking the accused to the weapon that discharged the fatal bullet. The High Court’s finding that the accused did not fire the fatal shot but only played a minor role left unanswered the critical question of who actually caused the injury. That injury was the direct cause of Sahib Singh’s death, and the High Court made no finding on that point. The absence of a definitive finding left a crucial gap in the evidentiary record and hindered the court’s assessment.

In the present special leave appeal, the Supreme Court noted that it is ordinarily bound by the factual findings of the High Court, particularly when those findings are favorable to the accused. Consequently, the request made by the State counsel, Mr. Mathur, to re‑examine the correctness of the High Court’s findings could not be granted. The learned judges of the High Court appeared not to have considered the factual situation created by their own conclusions. That omission left the Supreme Court with no alternative but to hold that the appellant was not guilty of the offence. Had the High Court found Lalman and Poti Ram guilty, the conviction recorded by the Sessions Judge could have been upheld. Alternatively, if the High Court had relied entirely on the evidence of Chhotey Singh and Maiku that the appellant fired the fatal shot, his conviction also could have been sustained. Nevertheless, the High Court made no determination as to who actually committed the murder of Sahib Singh in the case. The Supreme Court further explained that for Section 34 of the Indian Penal Code to be applicable, the common intention to commit the crime must be attributable to more than one individual. When an offence results from a joint act of several persons, each participant may be held liable, provided the requisite common intention is established. Such a requirement ensures that liability is not imposed on individuals who merely were present without sharing the criminal purpose. Because the necessary common intention and the identity of the actual shooter could not be proven, the conviction under Section 34 could not be sustained.

The trial court had recorded a conviction against the appellant on the basis that he was guilty of murder under Section 302 of the Indian Penal Code, and that the offence was alleged to have been committed in furtherance of a common intention under Section 34 of the same code. Nevertheless, the material presented before the court failed to produce any admissible proof of a prior agreement or concerted plan among the participants that could demonstrate a shared intention to commit the criminal act. In addition, the investigative record did not reveal the identity of any other persons who might have taken part in the assault, leaving the question of who the additional assailants were unanswered. In view of these circumstances, and particularly because the High Court had held that the appellant did not fire the fatal shot but only participated in a minor capacity, the prosecution’s case was severely weakened. Accordingly, because the prosecution was unable to establish either a pre‑existing conspiracy or the presence of co‑perpetrators, the legal foundation for upholding the conviction under the cited sections was absent. Consequently, the appellate authority set aside the lower court’s judgment, dismissed the charges and granted the relief sought by the appellant. The final order thus directed that the appellant be released and formally acquitted of all accusations concerning the death of Sahib Singh.