Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1160 OF 2005

Rajesh Singh & Ors. … Appellants

Versus

State of U.P.     … Respondent

J U D G M E N T

V.S. SIRPURKAR, J.

1. The judgment passed by the High Court allowing the appeal against  

acquittal  and convicting the appellant for the offence under Section 302  

read with Section 34, IPC is in challenge in this appeal.

2. The three appellants, Rajesh Singh (accused No.1), Najai Srivastav  

(accused No.2) and Mohan Singh (accused No.3) came to be tried by the  

trial Court on the allegation that they had committed murder of a young boy  

Deepak  on  11.4.1993  in  the  evening  at  about  5  O’Clock.    Deceased  

Deepak was the son of Virendra Kumar (PW-1). Virendra Kumar (PW-1)  

was  a  lawyer’s  clerk.   When  he  and  his  brother  S.K.  Srivastav,  an  

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advocate, were going for having ‘paan’ at the paan shop near Pico centre  

belonging  to  accused  No.1,  Rajesh,  they  saw  that  the  three  accused  

persons were beating Deepak.  Deepak was made to take the posture like  

a cock (murga) and two bricks were kept on his back.  Rajesh was hitting  

him with those bricks and the hands and feet of the boy had been tied and  

accused Najai was hitting him with a can.  When Virendra Kumar (PW-1)  

asked as to why his son was being beaten, it was told that Deepak had  

stolen  some  money.   Virendra  Kumar  (PW-1)  requested  the  accused  

persons  to  let  the  child  go  as  they  had  already  beaten  him  severely.  

However, Rajesh refused to leave him and threatened that if he does not  

go he would also be assaulted.  This incident was seen by some others  

also.  On this Virendra Kumar (PW-1) said that he would inform the police  

but  waited.   All  the  three  accused  persons  dragged  Deepak  to  house  

No.128/21,  C-Block,  Kidwai  Nagar,  Kanpur  which  was  the  house  of  

accused No.3, Mohan Singh.  They confined him inside and shut the door.  

Virendra Kumar (PW-1) and others kept on shouting from outside.  After  

about half an hour, the three accused persons ran away.  When Virendra  

Kumar (PW-1) and others went inside they saw that the boy was hung with  

a hook in the ceiling.  His feet were dangling at the height of 4-5 feet from  

the floor and he was dead.  Virendra Kumar (PW-1) then informed the  

police by lodging an FIR.  

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3. The investigation was taken up by Chandra Shekhar Yadav (PW-4).  

He reached the spot, did the necessary formalities and sent the body for  

autopsy.  As many as five ante-mortem injuries were found on the dead  

body during the post-mortem which was conducted by Dr. Jugal Kishore  

Sharma  (PW-3).   These  injuries  were  in  the  nature  of  large  abraded  

contusions.  On internal examination his hyoid bone was found fractured.  

As per the opinion expressed, the boy died due to asphyxia as a result of  

throttling.  After the investigation, charge sheet was filed.  The prosecution  

examined  Virendra  Kumar  (PW-1),  Shyam  Ji  Pandey  (PW-2)  as  eye-

witnesses while Dr. Jugal Kishre Sharma who had conducted autopsy on  

the dead body of deceased was examined as PW-3.  In addition to this,  

police witnesses were also examined.  The accused abjured the guilt.  The  

trial Court, however, acquitted the accused persons dis-believing the eye  

witnesses and held that their presence was doubtful.  He also held that the  

conduct of  Virendra Kumar (PW-1) was unnatural.   The trial  Court also  

observed  that  the  prosecution  had  failed  to  examine  S.K.  Srivastav  

advocate, another eye witness.   

4. The State filed an appeal against this judgment and the High Court  

allowed the appeal convicting the three accused persons of the offence  

under Section 302 read with Section 34, IPC.  That is how the appeal has  

come before us.

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5. It was vehemently argued by Shri Sanjay Jain, learned counsel for  

the  appellants  that  this  was  a  case  where  the  medical  evidence  was  

contradictory with the evidence of eye witnesses.  He also pointed out that  

the  trial  Court  had  given  sound  reasons  and  the  High  Court  had  not  

exercised the caution while upsetting the finding of acquittal handed out by  

the trial Court.  The learned counsel also urged that it not was found that  

the judgment of the trial Court was perverse and the inferences were not  

possible at all.  The appellate Court could not have upset the judgment and  

convicted the accused persons.  We were also taken through the evidence  

of  the  witnesses  which  was  severely  criticized  by the  learned counsel.  

Lastly, the learned counsel claimed that all the accused persons could not  

be held guilty, particularly, when it was not certain as to which accused  

had caused the murder by throttling deceased Deepak.   

6. As regards this, the learned Senior Counsel appearing on behalf of  

the State supported the judgment passed by the High Court and pointed  

out that this was the most foul murder and the reasoning given by the trial  

Court was extremely perverse.  Shri R.K. Dash, learned Senior Counsel  

pointed out by reference to the judgment of the trial  Court that the trial  

Court was extremely casual in appreciating the evidence and had rejected  

the important evidence of the eye witnesses for no reasons.

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7. On this backdrop, it is to be seen whether the appellate Court was  

right in convicting the accused persons.  There can be no dispute about  

the principles which are now more or less settled while dealing with the  

judgment of acquittal.  There can be no dispute with the proposition argued  

by Shri  Jain that unless the reasoning by the trial  Court is found to be  

perverse, the acquittal cannot be upset.  There can also be no dispute of  

the  other  proposition  argued  by  Shri  Jain  that  where  two  views  are  

possible even then the judgment of acquittal should not be upset in the  

sense that the Court while dealing with the judgment of acquittal must see  

as to whether the trial Court has taken a possible view.  

8. It is a well settled position now and we reiterate the same that while  

upsetting  the judgment  of  acquittal,  the  appellate  Court  must  show the  

perversity  in  the  judgment  of  the  trial  Court  and  the  appellate  Court’s  

judgment must show that the Court was alive to the fact that it was dealing  

with the judgment of acquittal and further the appellate Court also must  

record the finding that the view taken by the trial Court was not possible in  

law at all.

9. Testing the judgment from these angles, it has to be said that the  

appellate Court’s judgment very clearly records a finding that the acquittal  

recorded by the trial Court was based on flimsy grounds and was wholly  

unjustified.   The  High  Court  has  also  considered  the  benefit  of  doubt  

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awarded by the trial Court and has observed that it should not become a  

fetish.  The High Court has also given very good reasons to set aside the  

findings arrived at by the trial Court.

10. The first such finding by the trial Court was that the FIR was ante-

timed on the ground that as per the evidence of Chandra Shekhar Yadav  

(PW-4), the investigating officer, the dead body of deceased Deepak was  

dispatched from the spot after being sealed at 9 p.m. for the police lines.  

However, in the record of the police lines, it was shown to have received at  

10 a.m. on 12.4.1993.  The FIR was also criticized by the trial Court and  

the  defence  counsel  here  on  the  ground  that  there  was  no  evidence  

offered by the prosecution to suggest that the special report of the crime  

was sent to the higher authorities.   The High Court has found that this  

criticism was not justified.  The High Court has given the reasoning that the  

FIR was lodged by the witness Virendra Kumar (PW-1) on 11.4.93 itself at  

6.40  p.m.   Thus,  if  the  incident  happened  at  about  5  O’Clock  in  the  

evening, the recording of the FIR at 6.40 p.m. in a police station which was  

8 Kms. away from the spot  of  occurrence could not  be said to be late  

reporting.  The High Court has also relied upon the evidence of Chandra  

Shekhar Yadav (PW-4) that the FIR had been lodged in the police station  

when  he was  not  present  there  and he was  informed about  it  only  on  

wireless and, therefore, he happened to reach the spot directly with ASI  

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and started the investigation of the case and was busy there in drawing of  

Panchnama etc. right up to 11 p.m. and merely because the copy of FIR  

was received in the office of the circular officer on 13.4.1993, it should not  

lead to the conclusion that the FIR was ante-timed.  The High Court has  

also found that if the dead body reached the police lines late at mid night  

and if it was shown in the record that it was received at 10 a.m. on 12.4.93,  

there was nothing significantly doubtful.  We have also gone through the  

record as well as the evidence of the investigating officer Chandra Shekhar  

Yadav (PW-4) and though the timing is slightly irregular, that alone would  

not be sufficient to reach a conclusion that the FIR was ante-timed.  After  

all nothing was going to be gained by the prosecution by ante-timing the  

FIR.  Had the FIR been ante-timed, the Panchnama could not have been  

commenced at 7.30 p.m.  We do not find any significant cross examination  

of the Panchas and the police officers, particularly, on the aspect of timing  

thereof.  We do not find this circumstance to be of such a nature so as to  

throw the whole prosecution story which was proved by two eye witnesses,  

one of them being the father of the boy.

11. The  learned  counsel  severely  criticized  the  evidence  of  Virendra  

Kumar (PW-1) on the ground that the behaviour of Virendra Kumar (PW-1)  

was extremely unnatural and that his presence on the spot was extremely  

doubtful.   We have seen the evidence of  Virendra  Kumar (PW-1)  very  

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closely.   We have  also  seen  the  reasons  given  by  the  trial  Court  for  

rejecting his evidence.  According to this witness, he and his brother S.K.  

Srivastav had gone near Rajesh Pico Centre to have  paan.   That pico  

centre  was  in  the  house  of  128/22,  C-Block,  Kidwai  Nagar,  Kanpur.  

According to this witness, he saw crowd in front of the Rajesh Pico centre  

and saw that three accused beating his 11 year old son.  He was made to  

take posture of a cock (murga) and he was being hit by accused Najai with  

a can.  While Rajesh was pressing bricks and Mohan was slapping his son  

which  he did  twice.   On being asked,  the accused Rajesh replied that  

Deepak had stolen his  money and even after  requests by the witness,  

Deepak was not being released and, therefore,  Virendra Kumar (PW-1)  

made hue and cry that the would inform the police.  This incident was seen  

by Brij Bhan Singh, Shyam Ji Pandey and Dinesh Kumar also. However, in  

their presence, the accused persons dragged Deepak inside the nearby  

house  at  128/22,  C-Block,  Kidwai  Nagar,  Kanpur  and shut  the  outside  

door.  It was after about half an hour that the accused persons opened the  

door and the three accused persons fled away towards a square known as  

Chalis Dookan Chauraha.   When the witnesses entered the room, they  

found Deepak was hanging with the rope and was dead.  His legs were  

dangling at 4-5 feet above the floor.  It  was on this basis that the First  

Information Report was given in their hand writing after it was prepared.  

The trial Court then noted the topography of the area as also the houses of  

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the witnesses.   Thereafter,  the trial  Court observed that there were 3-4  

paan shops including one Pandit  Ji’s  Paan shop.   The trial  Court  also  

noted that the witness did not have  paan at Pandit Ji’s  Paan shop and  

proceeded towards the paan shop which was near the shop of the accused  

Rajesh.  The trial Court also noted that there were about 100-150 persons  

gathered when the door was shut by the accused persons and that when  

the accused persons escaped by opening the door nobody tried to catch  

them.  He also noted that this witness had taken the name of Shyam Ji  

Pandey to be present in the crowd.  While considering the evidence of this  

witness, who was an eye witness and father of the unfortunate boy, the  

trial Court held that Virendra Kumar (PW-1) and Dinesh Kumar who were  

the clerks of the advocate as also SK Srivastav the brother of Virendra  

Kumar (PW-1) and Shyam Ji Pandey who himself was an advocate were  

residents of different places.  The trial Court then observed:

“the presence of many advocates and clerks is natural  in  the  court  but  the  presence  of  these  four  at  the  spot  of  occurrence on a holiday does not seem more probable.”   

The trial Court then further observed:

“the betel shop of Pandit Ji is situated near the house of  witness  Virendra  Kumar  (PW-1)  before  Pico  centre  but  witness did not eat the betel on the aforesaid shop but came  to  eat  betel  near  Pico  centre  where  the  incident  was  happening.  These circumstances make the presence of this  witness  on  the  spot  of  occurrence  at  the  time  of  incident  doubtful and this witness appears to be a chance witness.”

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12. It  is  on the basis  of  this  that  the trial  Court  has dis-believed the  

evidence of Virendra Kumar (PW-1).   We do not find any other reason  

having been given to dis-believe his evidence.  That we are surprised by  

this finding would be an understatement.  There was nothing unnatural for  

the witness to choose his Paan shop and merely because he did not go to  

the nearest Paan shop, no fault could be found with the witness.  Further, it  

has come in the evidence that the residence of Virendra Kumar (PW-1) is  

hardly 300-350 steps away from the Pico centre where the incident was  

happening, therefore, to call this witness a chance witness is a perversity.  

The High Court has noted this perversity and has adversely commented on  

the finding reached by the trial Court.  The other reason given by the trial  

Court was that one Shyam Ji Pandey was present at the time of writing the  

FIR and his name was bound to have been mentioned in the FIR, but it did  

not  mention  the  name  of  Shyam  Ji  Pandey  and,  therefore,  Shyam  Ji  

Pandey also  appeared to  be a  chance witness.   As regards Shyam Ji  

Pandey, the Sessions Judge said that his claim that he saw the incident  

when he was going to fetch ice near the Pico centre was obviously false  

and the trial Court has mentioned “according to this witness, normally he  

drinks fresh water of hand pipe.  The incident is of 11th April at 5 p.m.  At  

that time it is not hot worth drinking cold water especially when the witness   

used to drink hand pipe water daily.”

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13. Again, this reason for rejecting the evidence of Shyam Ji Pandey, to  

say the least, is perverse.  There is no law saying that merely because one  

is used to drink water from hand pipe, he should not purchase ice.  The  

High Court has found this reasoning in respect of Shyam Ji Pandey to be  

perverse.  Again the Sessions Judge found that Shyam Ji Pandey who  

was present was not mentioned in the FIR.  It was bound to be realized  

that Virendra Kumar (PW-1), the author of the FIR had seen his own son  

being  killed  by  three  bullies  of  the  locality.   It  has  also  come  in  the  

evidence that accused No.1, Rajesh was already facing a murder case and  

was on bail.  Under these circumstances, to expect each and every detail  

including the names of the witnesses, would be totally unnatural when both  

these witnesses faced their cross examination extremely well.  There was  

nothing brought in their cross examination which could falsify their claim of  

having seen the ghastly incident.  

14. It is true that the others like the brother of Virendra Kumar (PW-1)  

did  not  step  into  the  witness  box  but  that  by  itself  will  not  make  the  

evidence  of  two  witnesses  suspect  in  any  manner.   The  witness  was  

candid enough to say that he did not have any enmity with accused Mohan  

and he had heard that he was being tried under Section 302, Indian Penal  

Code.   He  was  also  candid  enough  to  say  that  accused  Mohan  and  

accused Najai had not raised any accusation against deceased Deepak  

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that he had stolen their belongings.  It has come in his cross examination  

that when he was requesting the accused persons to spare his son, Brij  

Bhan Singh, Shyam Ji Pandey and Dinesh reached there on hearing the  

shouts  thereby  the  presence  of  Shyam  Ji  Pandey  was  thoroughly  

established by him in his cross examination itself. In his cross examination,  

he  gave  a  graphic  description  of  what  each  accused  was  doing  while  

beating Deepak.  The tenor of his evidence was natural and even after  

closely examining the evidence we also feel like the High Court that the  

Sessions Judge was in error in rejecting the evidence on flimsy grounds.  

Same is  true  of  the  evidence of  Shyam Ji  Pandey and excepting  that  

Shyam Ji Pandey was not expected to purchase ice and for that purpose  

come  out  on  the  spot,  nothing  has  been  found  inconsistent  with  the  

evidence  of  Virendra  Kumar  (PW-1).   Shyam  Ji  Pandey  is  a  literate  

witness.  He is MA LLB and had practiced law for two years.   He also  

claimed that he knew and recognized the three accused persons.  He had  

given a correct and graphic picture of what happened.  Much of his cross  

examination  was  on  the  fringes  without  confronting  him  with  any  

inconsistencies.   It  was really  a matter  of  importance that  there are no  

prevarications or inter se contradictions in the evidence of these witnesses.  

He has also given the correct picture of what each accused was doing.  

After seeing the whole evidence, we are convinced that the approach of  

the  Sessions  Judge,  while  appreciating  the  evidence of  these  two eye  

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witnesses was extremely perverse.  The trial  Court has also found fault  

with the fact that none of the witnesses tried to stop the accused persons  

when they fled.  That is hardly any reason to dis-believe the prosecution  

case.  One of the accused persons was already facing a murder case.  

The witness Virendra Kumar (PW-1) has also spoken about that.  It should  

be seen that the accused were viewed as bullies and, therefore, nobody  

might have tried to apprehend them.

15. Further the trial  Court has found fault  with  the fact that the other  

witnesses like Shiv Kumar was not examined.  That would be hardly a  

circumstance in favour  of  the defence,  particularly,  when the two other  

witnesses  were  offered.   It  is  not  the  quantity  but  the  quality  of  the  

evidence which matters.

16. The Sessions Judge did not take into consideration the evidence of  

the  doctor  who  wholeheartedly  supported  the  prosecution  case.   It  is  

obvious from the post-mortem report that there were ante-mortem injuries.  

There were 10 abraded contusions on both sides of neck in front and just  

below chin.  The injuries described were also serious injuries for an 11  

year old child.  His hyoid bone was also found fractured.   Therefore, the  

fact  that  Deepak’s  death  was  homicidal  death  was  obvious.   He  had  

suffered  the  contusion  on  the  back  of  left  side  below  scapula  and  

contusion on back of legs below knee etc. which were in perfect unison  

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with the evidence of the two eye witnesses.  The High Court has taken  

note of the medical evidence in a correct manner.  At least the injuries of  

the deceased read with the evidence by the eye witnesses should have put  

the trial Court on guard.  We must say that the trial Court had acquitted the  

accused persons in a very casual manner.

17. The most important circumstance in this case is the finding of the  

dead body in the house of one of the accused persons.  Surely, the dead  

body  could  not  have  walked  inside  the  house  of  the  accused  person.  

There  was  absolutely  no  explanation  from the  accused  persons,  more  

particularly, accused Rajesh as to how the body was found in a hanging  

position  in  the  house  of  one  of  the  accused.   All  the  witnesses  are  

unanimous on the point that all the three accused persons went inside the  

house  dragging  Deepak  with  them.   This  important  circumstance  was  

completely lost sight of by the trial Court.  That also can be said to be a  

perversity on the part of the trial Court.

18. As regards the argument of learned counsel for the defence that it  

was  not  certain  as  to  which  accused  actually  caused the  murder  and,  

therefore,  all  the  three  accused  persons  were  bound  to  be  given  the  

benefit  of  doubt,  it  has  to  be  said  that  the  argument  is  without  any  

substance.  It is clear that all the three accused persons had taken part in  

the beating of deceased Deepak and all the accused persons dragged him  

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in the room and closed the door.  Therefore, it  was up to the accused  

persons to explain as to how Deepak died.  It is very clear that all the three  

accused persons had acted with common intention of causing the death  

and, therefore, all the three accused persons would be guilty with the aid of  

Section 34, IPC.  The High Court has rightly held them guilty.

19. In short,  after  examining the evidence closely,  we are of  the firm  

opinion that the acquittal in this case was completely out of the question.  

The reasoning given by the trial Court was wholly unacceptable and can  

safely be called perverse.  The High Court having noted these defects in  

the judgment of the trial Court and the casual approach of the trial Court  

was justified in reversing the acquittal.  In our opinion, the appeal has no  

merits and must be dismissed.  It is accordingly dismissed.

………………………………..J.

[V.S. SIRPURKAR]

…………………………………J.

[T.S. THAKUR]

New Delhi;

March 28, 2011.

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Digital Proforma

1.       Case No. : Criminal Appeal No.1160 of 2005

2. Cause title : Rajesh Singh  & Ors. Vs. State of U.P.

3. Judgment heard by : Hon’ble Mr. Justice V.S. Sirpurkar Hon’ble Mr. Justice T.S. Thakur

4. Judgment reserved by : Hon’ble Mr. Justice V.S. Sirpurkar

5. Date of C.A.V. : 15.3.2011

6. Date of pronouncement of Judgment : 28.3.2011

7. Nature of Judgment : Reportable

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