Dua, - (1.) THE Judgment of the court was delivered by
(2.) THE State of THE U. P., the appellant in this appeal by special leave, assails the judgment of the Allahabad High court, dated 18/05/1970, acquitting on appeal the six respondents in this court who were convicted by the court of the first Temporary Civil and Sessions Judge, Pratapgarh on 1/09/1969, of various offences under the Indian Penal Code. THE accused Paras Nath Singh, Ramendra Pratap Singh, Hari Saran Singh and Lal Pratap Singh were sentenced to death under S. 302, read with S. 149, 1. P. G. THE accused Surendra Pratap Singh and Shiva Pratap Singh were also convicted under the said S. but sentenced to life imprisonment. Leniency was shown to them by the Trial court because Surendra Pratap Singh was stated to be a budding lawyer and Shiva Pratap Singh, being of tender age (15 or 16 years old), was considered to have apparently been misled by his relations. Excepting Surendra Pratap Singh and Hari Saran Singh, the remaining accused were also sentenced to rigorous imprisonment for one year each under S. 147, 1. P. C. THEy were further convicted under S. 148, 1. P. C. and sentenced to rigorous imprisonment for two years each. Accused Paras Nath Singh was in addition, sentenced to rigorous imprisonment for six months under Section 379, 1. P. G. The relevant facts necessary for our purpose may now be stated. The six respondents (hereinafter called the accused) were charged with the murder of Suresh Singh on 9/07/1968, and with the theft of his gun and cartridges along with the container. The deceased and the accused are all Thakurs by caste residing" in village Isanpur. Accused Surendra Pratap Singh and Ramendra Pratap Singh are brothers residing in a house adjoining that of the deceased, being thus his next door neighbours. Shiva Pratap Singh and Lal Pratap Singh are cousins and the other accused persons are said to be their associates. There was long-standing enmity between the deceased on the one hand and Ramendra Pratap Singh and his family members on the other. About six or seven months prior to the present occurrence, Ramendra Pratap Singh is laid to have tried to fire at the deceased on Diwali day, and a case under S. 307, 1. P. G. arising out of the said incident was pending at the time of the murder of the deceased. About five or six days prior to the murder Ramendra Pratap Singh, Surendra Pratap Singh and one Vijai Bahadur Singh are stated to have beaten the 649 deceased inside his house giving rise to another case under S. 107/117, Cr. P. G. which was also pending at the time of the murder in question. This enmity is stated to be the motive for the murder of the deceased. Now turning to the occurrence in question on 9/07/1968, Suresh Singh deceased had gone to Pratapgarh on cycle for some work carrying with him his gun and cartridges. On his way back from Pratapgarh the same evening at about sunset when he reached Rakhaha Bazar and was on the Rakhaha BazarRandhai kachha road, all the accused persons emerged from the nearby nala. They surrounded their victim Suresh Singh, shouting that he should be killed because he posed to, be a great leader. The accused who were armed with lathis, spears and farsha, assaulted the deceased with their respective weapons. Smt. Sheela Devi, P. W. I, daughter of the deceased and Sachendra Pratap Singh, (P. W. 2) son of the deceased also happened to be returning to their village from Rakhaha Bazar where they had gone to purchase parwal (a vegetable) for their mother who was not well. On hearing the alarm they . went towards the nala where they saw the accused assaulting their father with lathis, spears and farsha. Several other persons, including Shiva Pratap Singh, Mahabir Singh, Ranmast Singh and Jagdish Bahadur Singh were also attracted by the alarm to the place of occurrence. The deceased fell down on receipt of injuries and the accused ran away carrying with them the gun and container of cartridges along with its contents belonging to the deceased. The cycle and a jhola belonging to the deceased and lying on the spot was sent home by Sheela Devi (P. W. 1) through one Mahabir. Sheela Devi also sent for her mother (Smt. Sundari Devi) through the same man. The mother arrived soon thereafter and Suresh Singh was taken on an ekka to Diwan Mau from where he was taken in a taxi to the District Hospital, Pratapgarh. Suresh Singh appears to have expired on his way to the hospital near village Pipari. The doctor on examining Suresh Singh informed Sheela Devi that her father had already died and advised her to lodge a report at the Police Station, Kotwali. She wrote out a report of the occurrence (Ex. Ka-1) at the hospital and along with the dead body, went to Kotwali police station where she handed over the written report the same night at about 11.30 p.m. on the basis of which Ex. Ka-I 8, the formal F. 1. R. was prepared. A case under S. 302/147/148/149, 1. P. G., was thereupon registered and all the relevant papers sent to the police station Kandhai. As a result of the investigation, it was considered necessary also to frame a charge against the accused persons under S. 379, read with S. 149, 1. P. G., for the theft of the gun and the cartridges along with their containers belonging to the deceased. The foregoing is the prosecution version. At the trial the only eye-witnesses deposing to the actual occurrence were Smt. Sheela Devi (P. W. 1), the daughter and Sachendra Pratap Singh (P. W. 2), the son of the deceased. P. W. I was about 19 years old when she gave evidence at the trial in July, 1969 and P. W. 2 about 13 or 14 years old. The other persons mentioned in the F.I.R. by P. W. I were not produced as witnesses on the ground that they were not prepared to depose in favour of the prosecution at the trial. P. W.I and P. W. 2 have unfolded the prosecution case deposing to the incident as witnessed by them. According to P. W. I, she and her younger brother who had gone to Rakhaha Bazar in the afternoon for buying parwal, while returning to their home, heard the alarm as they reached the kachcha road. They went towards the side from which the noise came and saw that their father was being beaten by Laiji, Chotey Lal, Sadhy and Nankoo with lathis, Hari Saran Singh with ballam and Munna who is also called Sheo Pratap Singh, with farsha. They took her father down into the nala 650 shouting, "kill the sala, he was playing the part of netagirivery much". After the accused had run away, P. W. 1 went near her father who, though badly injured, was still in a position to speak. He told her and the other persons who had assembled there that the accused persons had been hiding inside the nala and that they had forcibly taken him away from the road into the nala and beaten him. She sent her father's cycle and jhola home through Mahabir Singh also requesting him to send her mother to the place of occurrence. Her mother came there and after arranging for an ekka, Suresh Singh was taken to Diwan Mau from where Suresh Singh was taken to the hospital in a taxi. On the way Suresh Singh expired near Pipari. After the doctor had certified death of Suresh Singh, P. W. I was advised by the doctor to make a report in the Sadar police station. She wrote out a report in the hospital and along with the dead body of the deceased, she went to the police station and lodged the report in the Kotwali. Paras Nath, accused, according to P. W. 1, had taken away with him the gun and the cartridge-belt belonging to the deceased. She had herself to go to the Kotwali to lodge the report because there was no other adult male member left in their house. According to her, Sarvashri Ram Pratap Singh, Krishnapal Singh, Ramesh Prasad Singh and Ruddar Pratap Singh, Vakils, live in the neighbourhood of her village. These persons being under the influence of the lawyers, she could not say if they would be willing to give evidence in support of the prosecution. She was cross-examined at great length by four different lawyers defending the accused persons. Sachendra Pratap Singh, (P. W. 2), a boy who did not appear to the court to be more than 12 or 13 years of age, was first questioned by the Trial court by asking him unexpected but intelligent questions to which he gave rational and sensible answers which impressed the court and the court came to the conclusion that the boy understood the importance of justice and of taking oath and was fully conscious of the desirability of speaking the truth when on oath. P. W. 2 fully corroborated P. W. I on all material points. He too was cross-examined at great length by all the defence counsel.
(3.) IT appears that after the examination of P. Ws. 1 and 2 the prosecuting counsel applied to the Trial court staling that Mahabir Singh, Shiva Pratap Singh, Ranmast Singh and Jagdish Bahadur Singh were present in court but as the prosecuting counsel had reason to believe that they would not speak the truth, they were not being produced as witnesses by the prosecution. IT was suggested that they could be examined by the court under Section 540, Cr. P. G. if considered, proper or the accused persons could examine them in their defence, if they so liked. On this application the counsel for the accused persons recorded a note opposing the suggestion and describing the allegation against the witnesses as baseless. S. 540, Gr. P. G., according to the defence counsel was inapplicable and he also declined to examine these witnesses in defence. The said witnesses were in these circumstances discharged by the Trial court on 9/07/1969. The Trial court in a very detailed and exhaustive judgment dealing with every aspect in a very lucid manner, came to the conclusion that P. W. 1 and P. W. 2 were both truthful witneses and their sincerity and honesty in speaking the truth could not be doubted. After staling the principle governing the evidentiary value of the testimony of a child witness, the Trial court made the following observations about the quality and value of the evidence of P. W. 2: "He has been cross-examined at a very great length and that too by four sets of defence lawyers of repute. It is amazing to find that despite their lengthy and cumbersome cross-examination the witness 651 has not been impaired. Had he not been an eye-witness of the occurrence and had he been examined after tutoring he could not have remained firm even for a single moment. The' said witness was tried to be beguiled, tempted and also brow-beaten but to my utter surprise he maintained his mental composure throughout and did not yield anywhere during the cross-examination. Even on the most minute details the witness did not confuse and gave convincing replica to them. From the beginning to the end of the incident he has successfully acquitted himself and not a single thing could be pointed out in his statement which could be used 'as a weapon against him. The manner and the method which the P. Ws. have exhibited in the witness box have left an everlasting impression in my mind about their sincerity and truthfulness. As a Judge of fact I am definitely of the opinion that unless truthful and honest the P. Ws. 1 and 2 would have collapsed under the weight of this trying and tiring cross-examination." The testimony of P. W.2 according to the Trial court was fully supported and corroborated by his sister, P. W. 1, who has unfolded the prosecution version about the occurrence in question. The Trial court also upheld the justification for not producing the other witnesses in court. This is what the Trial court has said in this connection: "The nature and number of injuries found on the person of the deceased and that too in a broad day light goes to show that the deceased was beaten mercilessly. The site of the scene of the occurrence and the injured must have been awe striking and appalling. To all those who might have seen the occurrence it must have left an indelible impression that the accused meant business and there was nothing which could deter them from accomplishing their target. This plychoanalysis of the situation too has to be kept in mind before giving a finding about the respective versions of the parties. Several documents have been filed in the case by the prosecution to show that cases under S. 307, 323/452, Indian penal code and under 'Sections 107/117, Cr. P. C., were pending at the time of occurrence between the deceased on the one hand and the accused Ramendra and his family on the other. In these circumstances there was nothing surprising if even onlookers did not dare to come forward. Further I am constrained to observe that had the accused been on bail even the offsprings of the deceased, i. e., P. Ws. 1 and 2 could not have come in the witness box to depose about facts relating to the murder of their father and in that case the fact of even the death of the deceased would have been enveloped in darkness. Whatever reason may be there to it there is no denying the fact that witnesses in the case have kept back and have avoided coming forward. In this connection I may recall the statements of P. Ws. 1, 2 and 4. Out of so many public witnesses named in the charge-sheet only P. Ws. 1 and 2 could figure as eye-witnesses of the occurrence. Had they not been the family members of the deceased even they would not have come. P. W. Inder Singh has stated that the witnesses have been pressurised not to come. I am very much impressed by the statements of P. Ws. 1, 2 and 4 on this score. Thus in the case of the present nature no one could like to invite trouble for him by coming in the witness box. There is not the least doubt that either because of fear or because of other influences witnesses have not liked to involve themselves in the matter. Thus considering the evidence and the circumstances of the case I feel that the explanation offered by the prosecution regarding the absence of other P. Ws. in the witness box 652 has got to be accepted. Exs. Ka-14 and Ka-16 also lend assurance to this finding." ;