TMI Blog1974 (8) TMI 133X X X X Extracts X X X X X X X X Extracts X X X X ..... ilash whose acquittal is not under challenge and with Ahmed Sayeed Khan alias Pearey Mian who died during the pendency of the proceedings in the High Court of Allahabad. 2. The High Court by its Judgment dated December 22, 1972 confirmed 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 Section 149 to one under Section 307 read with Section 149 of the Penal Code. 3. 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 Sections 302 and 307 read with Section 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 imprisonment for life for their participation in the murder of Tribeni Sahai and Radhey and concurrently to ten years' rigorous imprisonment for causing injuries to Jhilmili and Ram Prakash. Balak Ram, Nathoo, Dr. Kohli and Banney Khan have filed four sep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted raising offensive slogans against him. Tribeni Sahai protested and a wrangle ensued. While hot words 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 a shot at Tribeni Sahai with a licensed pistol which he was carrying. Tribeni Sahai had sensed danger and was trying to escape but he was hit by a bullet on the right scapular region. Radhey who was a few paces behind Tribeni Sahai ran forward to protect him when Balak Ram, Nathoo and Dr. Kohli fired four or five shots. Radhey received a pistol injury on the left back. Jhilmili and Ram Prakash who live nearby came running in protest but they also received injuries as a result of the shots fired by Balak Ram, Nathco and Dr. Kohli. Nathoo, like Balak Ram, was carrying a pistol while Dr. Kohli was armed with a licensed revolver. Jhilmili received an injury on his left thigh while Ram Prakash was found to have a superficial burn on the right side of his abdomen. 8. According to the prosecution, Rajendra Kumar Misra gave information of the incident at 9.45 p.m. at the police station which is about two furlongs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11. In the meanwhile, Yogendra Sharma had commenced the investigation. He went to the house of Tribeni Sahai and informed the Superintendent 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 a bullet head from the scene of occurrence. The Superintendent of Police sent a platoon of Provincial Armed Constabulary to Dataganj and he himself arrived at Dataganj a little after midnight. 12. Dr. Kohli's house is alleged to have been searched at night but he could 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 be was proceeding 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 from inside the Niwar of a cot. The Investigating Officer opened the chamber of the revolver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y were friends or relatives of Tribeni Sahai or because of the pressure exerted on them by the police at the instance, partly, of Tribeni Sahai's brother Radhey Shyam, who was the Deputy Inspector General of Police and a Member of the Vigilance Commission, U.P. 20. Balak Ram pleaded alibi saying that he was at Lucknow from May 25. He led evidence in support of his plea of alibi, Nathoo admitted that he was related to Balak Ram but contended that he was contesting the election to the membership of the Town Area Committee as an independent candidate. He also pleaded alibi saying that he had gone to Chandausi on the morning of 27th and returned to Dataganj on 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 or that his revolver was handed over by his wife. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ying 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 not 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 received by Jhilmili and Ram Prakash but he convicted him under Section 337 read with Section 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. 24. 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 Information Report at the Dataganj police station is a close relative of the deceased Tribeni Sahai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Article 136 are wide but in criminal appeals this Court does not interfere with the concurrent findings of fact save in exceptional circumstances. In Ramabhupala Reddy and Ors. v. The State of Andhra Pradesh 1971 CriLJ 422 it was observed that it was best to bear in mind that normally the High Court is a final court of appeal and the Supreme Court is only a Court of special jurisdiction. This Court would not therefore re-appraise the evidence unless, for example, the forms of legal process are disregarded or principles of natural justice are violated or substantial and grave injustice has otherwise resulted. In dealing with the appeal filed by Balak Ram we shall have to keep this position in mind. 27. In so far as Nathoo, Dr. Kohli and Banney Khan are concerned the question for 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. 1974 CriLJ 479 this Court held after a 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 Committee seats. Nathoo, apparently an independent candidate, was in fact a dummy candidate put up by Congress (O) in order 10 provide for the possible disloyalty of its official candidate. Nathoo is Balak Ram's brother-in-law. 30. Of Banney Khan it is said that since 1937, candidates put up by him for Chirmanship of the Town Area Committee had won consistently, no matter which party they belonged to or which party the rival candidates belonged 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 fell out on the eve of the 1971 elections. 31. Political differences evidently polluted the social life of the Dataganj citizens. They carried those differences into their private lives and their social relationship was marked by a series of quarrels and court cases. A civil suit was filed in 1965 by Banney Khan and his brother Pearey Mian against Tribeni Sahai and others for a permanent injunction restraining them from realising Tehbazari due ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the scene of offence but to be present 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 contended, by the defence, they were members of the procession and were injured accidentally when the precisionists opened fire or whether, as contended by the prosecution, they received injuries when as disinterested by-standers they rushed to protect Tribeni Sahai. 34. It is surprising that the First Information Report lodged by Rajendra Kumar Misra does not refer to the presence of either Jhilmili or Ram Prakash. Rajendra Kumar claims to have seen the incident from a 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 a t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Jhilmili's son-in-law Sia Ram and another relative Ved Prakash were contesting the election for the membership of the Committee as candidates of Congress (O). 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 (O). He had voted for Sia Ram and Ved Prakash but said that he did not know what symbols were allotted to them. 38. Jhilmili is a secretive witness for, though his son got employment 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 denied that he had opened a bank account two months after the incident with an initial deposit of ₹ 1000/- and stated falsely that the account was opened prior to the incident with a deposit of ₹ 600. He stated that he had deposited a sum of ₹ 50 only in that account after the incident but, a true copy of his bank account shows that he had deposited a sum of ₹ 500 in November, 1971. Jhilmili was asked whether he knew that Dr. Kohli was associated with the Jan Sangh and his an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Vigilance Commission. The trial court observed 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. 43. In the first place, the omission to make a 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 Rajendra Kumar is highly unnatural. After the precisionists 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 the whole incident but, on his own showing, as a mute, silent spectator. He raised no alarm, he did not go near any of the injured persons and made a 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his father-in-law since March, 1970 as alleged by him. After leaving Dharam Pal's house he admittedly 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 documents to show that 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. 47. 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 a more convenient place, he could not have seen the incident. He explained this by saying that there used to be a dog on the western roof to keep watch and the eastern roof had no regular staircase making it difficult for the dog to get on there. When his statement was recorded by the Sub-Divisional Magistrate under Section 164 of the Criminal Procedure Code Arvendra stated that Pearey Mian. Banney Khan. Dr. Kohli, Balak Ram; Kailash and Nathoo were also in the procession. His case then was that there were others also in the procession. In fact, he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 51. 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 immediately after the shooting outrage, neither Jhilmili nor Ram Prakash who were admittedly present at the scene of occurrence all through say anything about that dying declaration. Even Aryendra who is Dharam Pal's sister's son did not say that Tribeni Sanai made a dying declaration to Dharam Pal. Surprisingly, though the investigation was otherwise prompt, the statement of Dharam Pal was recorded by the investigating Officer on June 2, 1971 which was six days after the incident had taken place. 52. The second dying declaration is alleged to have been made to the Investigating Officer. Investigating Officers are keenly interested in the fruition of their efforts and thou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n whether, in the circumstances of the case, it is safe to act on the uncorroborated dying declaration of Tribeni Sahai. The evidence of Dr. R. C. Bansal who was the Medical Officer of the District Hospital, Budaun, shows that Tribeni Sahai was in a critical condition when he reached the hospital. Before the dying declaration was recorded, an attempt was made to give him saline but even after making incisions on the hands and a leg, the attempt did not succeed. Dr. Bansal has stated that Tribeni Sahai was in severe pain , that he was under a great shock , that there was profuse bleeding from the injury, that his respiration was poor, that his pulse was feeble and thready and that the blood pressure was not recordable . Dr. Bansal explained that by shock he meant a state of profound depression of the vital processes of the body resulting from injury. It taxes one's ordinary experience of human affairs to accept that Tribeni Sahai, thus tormented, was in a fit mental and physical condition to make a volitional statement after he had reached the Budaun hospital. 55. Quite apart from this consideration, the dying declaration can have hardly any evidential value becaus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecorded at the Budaun hospital. What is more, his name which was first written towards the end of that dying declaration was subsequently scored off. Mr. Sada Ram, the Sub-Divisional Magistrate, says that he scored off Nathoo's name from the dying declaration because Tribeni Sahai did not say anything when Nathoo's name was read out that was fair of Mr. Sada Ram but when Nathoo scores one more point. 61. The old Banney Khan is an old hand at politics. He was Vice-Chairman of the Town Area Committee since 1937 and even Dharam Pal has admitted that Banney Khan was a king-maker. He was 79 years old on the date of the incident and the only evidence against him consists of that artificial assertion that he, Dr. Kohli and Pearey Mian exhorted Balak Ram with one voice to shoot at Tribeni Sahai. Banney Khan's implication could reasonably be traced to the personal enmity between him and Tribeni Sahai. 62. In the result the order of conviction and sentence passed by the High Court against Nathoo, Dr. R. P. Kohli and Mohammad Sayeed Khan alias Banney Khan is set aside and their appeals are allowed. Banney Khan is on bail and he need not surrender to his bail. Nathoo and Dr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unable to see a reason strong enough to justify a reversal of the concurrent view taken by the two courts. The normal rule that this Court does not reappraise evidence in such cases must apply. 67. Stated briefly, Mr. Anthony's contention is that the bullet (Ex. 25) which was recovered from the scene of offence must 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 been fired 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 Tribeni Sahai's body. 68. Mr. Anthony spent considerable time in showing that the striations on the bullet (Ex. 27) which was extracted from Radhey's body are of a different pattern from the striations on the test bullets fired from Balak Ram's pistol. The evidence of the expert has been closely considered by the High Court and we consider their finding ..... X X X X Extracts X X X X X X X X Extracts X X X X
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