SUPREME COURT OF INDIA

Before:- Dr. A.S. Anand, CJI, R.C. Lahoti and Ashok Bhan, JJ.

Criminal Appeal No. 434 of 1997 with Criminal Appeal No. 435 of 1997. D/d. 5.9.2001.

Lalloo & Anr. - Appellants

Versus

State of Uttar Pradesh - Respondent

Indian Penal Code, 1860, Sections 302, 149, 147 and 148 - Evidence Act, 1872, Section 3 - Murder - Appellants convicted under Section 302/149 Indian Penal Code and sentenced to imprisonment for life - Accused armed with lathis waylaying the bullock cart - Bullock cart stopped by pulling nose-string of bullocks by them and at their exhortation all others came out of fields with fire arms - Three of the inmates of bullock cart asked to get down - 4th inmate shot dead - Previous enmity admitted - No injury by blunt object like lathi - It is no body's case that accused knew that deceased would be returning by that route - Only evidence to connect them was exhortation - Held, that the accused have been falsely implicated - Evidence against them not reliable - Conviction set aside.

[Paras 9 and 10]

ORDER

Criminal Appeal No. 435 of 1997

This appeal, by special leave, calls in question conviction and sentence awarded to the appellants for offences under Section 302/149, 148 and 147 Indian Penal Code. Learned counsel for the appellants, faced with overwhelming evidence, including medical evidence, connecting the appellants with the crime, submitted that since these two appellants have already undergone the sentence imposed on them and have already been released, he does not wish to press this appeal. Under the circumstances, we dismiss this appeal as not pressed.

Criminal Appeal No. 434 of 1997

2. Ram Charan, Satya Pal, Lalloo S/o Baldeo, Kallu Singh, Dharampal Singh and Lallu Singh S/o Yadram Singh were sent up for trial for offences under Section 302/149, 147 and 148 Indian Penal Code. The trial Court convicted all the accused persons for an offence under Section 302/149 Indian Penal Code and sentenced them to undergo imprisonment for life. They were also convicted and sentenced for an offence under Section 147 Indian Penal Code to undergo six months RI. Dharmpal Singh, Lallu Singh S/o Yadram and Kallu Singh were also convicted for an offence under Section 148 Indian Penal Code and sentenced to undergo one year RI. All substantive sentence were, however, directed to run concurrently. Appeals filed by the appellants in the High Court also failed. Kallu Singh and Lallu Singh S/o Yadram preferred criminal appeal No. 435 of 1997 in this Court and that appeal stands dismissed by our order of today.

3. It transpires that accused Ram Charan and Dharampal Singh died during pendency of the appeal filed by them against their conviction and sentence in the High Court. Their appeals, consequently, abated.

4. This appeal by special leave has been filed by Lalloo S/o Baldeo and Satya Pal only.

5. According to the prosecution case, Vijay Pal Singh, P.W-2, along with deceased Har Swaroop, Abhey Singh, P.W.4 son of the deceased and one Som Pal were returning from village Basta, where they had gone to get an electric motor repaired on 18th August, 1979, when at about 11.00 a.m. they were waylaid by the appellants and Ram Charan near the Peepal tree. All of them were stated to be armed with lathis. On their exhortation (lalkara), Kallu Singh, Dharam Pal Singh and Lallu Singh S/o Yadram Singh, who were armed with single barrel guns and a country made a pistol respectively and were hiding in the sugar-cane field, came to the spot. The appellants had stopped the "buggi" (bullock cart) in which Har Swaroop deceased and other were travelling. Both appellants are alleged to have caught hold of the nose-strings of the bullocks to stop the buggi from moving and Ram Charan went and stood in front of the bullock cart. Their co-accused, namely, Kallu Singh, Dharam Pal Singh and Lalloo, on reaching the spot, asked inmates of the buggi, other than Har Swaroop, to alight from the buggi as they wanted to kill Har Swaroop who had escaped last time. Consequently, Vijay Pal Singh, Abhey Singh S/o Har Swaroop and Som Pal alighted from the Buggi. According to the prosecution case, while the appellants kept holding nose strings of the bullock, Kallu Singh, Dharam Pal Singh and Lalloo fired shots at Har Swaroop from their respective weapons as a result of which he died. The appellants then let go off the nose-strings and the bullocks took the cart towards the village. Vijay Pal Singh, Abhey Singh and Som Pal also went towards their house after all the accused had escaped. On reaching their house they found that bullock cart had already reached there. It was found that body of Har Swaroop was lying in the cart and he had already succumbed to the injuries. The body of Har Swaroop was taken out and later on Vijay Pal Singh, along with others, went to police station Chandpur in district Bijnor and lodged FIR at 1.15 p.m. Investigation was taken in hand and after conducting post-mortem examination on the body of Har Swaroop (deceased) at about 10.00 a.m. on 19th August, 1979, the body was handed over to the family of the deceased. On completion of investigation, charge-sheet was submitted against all the accused persons and they were tried and convicted, as noticed above.

6. With a view to connect appellants with the crime, the prosecution has examined as many as seven witnesses, including Vijay Pal Singh, P.W-2, Rurhey Singh, P.W-3 and Abhey Singh, P.W-4 were alleged to be the witnesses of occurrence. The appellants as well as other accused denied prosecution version and alleged false implication.

7. With the assistance of learned counsel for the parties, we have carefully scrutinised the evidence of the three eye-witnesses, P.W-2 Vijay Pal Singh, P.W-3 Rurhey Singh and P.W-4 Abhey Singh.

8. It transpires from the record that a year before this occurrence, Kallu Singh, Ram Charan, Satya Pal, Dharam Pal Singh and Lallu Singh S/o Yadram had attempted to commit murder of Har Swaroop and a case regarding that incident was pending against these accused persons. Thus, though there had been admittedly some previous enmity between the parties but since the date of this earlier occurrence, enmity became even more pronounced.

9. From the evidence of the eyewitnesses, there is no indication as to how the accused persons, including the two appellants herein, were lying in wait near the Peepal tree. It is nobody's case that the accused knew or had reason to know that deceased along with others had gone to village Basta to get his electric motor repaired and that without getting it repaired, the party would be returning by that route. That apart, it is an admitted case of the prosecution that the deceased died as a result of fire arm injuries as noticed by Dr. R.S. Sharma, P.W-1. Those injuries were attributed to Dharampal Singh (since dead). There was no injury caused by a blunt weapon like a lathi on the deceased. In the entire evidence led by the prosecution, there is no allegation that the appellants, apart from giving 'lalkara' also caused any injury to the deceased. To connect the appellants with the crime, it was stated by the eyewitnesses at the trial that the appellants had caught hold of the nose-strings of the bullocks - an assertion which finds no mention in the FIR lodged by P.W-2 and appears to be a definite improvement made to rope in the appellants. It appears wholly unnatural to us that the appellants would have been holding the nose-strings of bullocks while firing was going on from the side of their co-accused. The pistol with which Lallu Singh S/o Yadram Singh was armed, was a country made pistol and it would have been most risky for the appellants to be so close to the place where their co-accused were aiming the fire shots. Appellants would not have taken such a grave risk. It is alleged that they let go off the nose-strings only after Har Swaroop was shot dead by firing of three shots. Besides the conduct of the three eye-witnesses also appears to be rather unnatural. Abhey Singh is the son of the deceased yet he kept standing as a mute spectator and did not even raise an alarm. This conduct belies normal human conduct. In view of the previous enmity, which is an admitted case of the parties, the possibility that these appellants, to whom only lalkara is attributed in the FIR were falsely implicated, cannot be ruled out. Our careful analysis of the evidence on the record has created an impression on our minds that the eye-witnesses are not wholly reliable in-so-far as their evidence against these appellants is concerned. Their evidence does not inspire confidence and their conduct also gives us an impression that they were not telling the truth.

10. After giving our careful consideration to the material on the record, we are of the opinion that the prosecution has not been able to connect the two appellants with the crime beyond a reasonable doubt. Under these circumstances, this appeal succeeds and is allowed. The conviction and sentence of the appellants is set aside. The appellants are on bail. Their bail bonds shall stand discharged.

Appeal allowed.