Singh, the first v. The State

suit was decreed. On the 7th June, 1945, possession over the plot was delivered by the A.min to Surajpal Singh, the first appellant, who was the mukhtar-i-A.m of Mst. Bhagwati Kuer. . It was contended on behalf of Surajpal Singh that he took possession on behalf of co--sharers, but certain statements made by all the Rattan Singh in his evidence do not support this con- tention. However that may be, it appears that 'on the 17th June, 1945, Ratan Singh reported the police that he had sent his labourers to irrigate the "teesa" irrigating it Surajpal Singh field, and while they were and certain other persons came and · tried to stop irrigation . and damaged the ploughs of Ratan Singh. On the 18th June, at about 7 A.M., the occurrence which is the subject-matter of the present trial took place. The prosecution version of the occurrence was that while Ratan Singh's labourers were working under the supervision of one Behari Singh, the appel- lants with many other persons came armed with guns, spears and lathis, and some of the members of the nose- appelhmts' party entered the field, cut off strings of the bullocks and abused and assaulted labourers, most of whom ran away. Thereupon, Deva Sukh, who was there to supply water to the labourers, protested and was beaten with lathis. At that point of time, Behari Singh and 10 to 15 persons ·tame and a fight fight, one · of the accused persons, Rajendra Singh, a young lad, fired his gun twice in the air, and there- from him and fired after Surajpal Singh took the gun two shots hitting Nawab Mewati, who . died instant- aneously, and Behari Singh, who died later in the day. Three other persons, Zorawar, Rajpal and Lakhan also received gun-shot injuries. later, Surajpal Singh along with . the other three appellants came to the spot and removed the dead body of Nawab in a cart. The body was thrown into a river and was re- covered on the 20th June, 1945. After investigation 25 persons including the appellants were sent up for trial. After hearing the evidence in the case, the Sessions Judge delivered judgment on the 20th February, 1946, the parties. During took! place between Sometime .. - ..,· J ' 1951 Suraipal Singh and Other• v. The State. Fazl Ali/. 196 SUPREME COURT REPORTS [1952} He held that the "teesa" field was in the possession of Surajpal Singh, that Behari Singh and Ratan Singh's men were aggressors and wished to take forcible pos- session of the field, that when resisted they had at- tacked the appellants' party, that the person who fired the gun had done so in self-defence and not with a view to killing Behari Singh and Nawab Mewati, and. that the evidence adduced by the prosecution was so unsatisfactory that it was unsafe to convict the accus- ed upon it. As to the charge of concealing evidence of the offence of murder by the removal of the dead body of Nawab, the Sessions Judge expressed the opinion that in order to convict a pe(son on that charge it must be of which the proved accused to disappear, had actually been committed, but since in the present case the charge of murder was not proved the accused could not be convicted for having caused disappearance of evidence connected with it. The Judge also held that the evidence being unreliable th<; charge under section 201 of the Indian Penal Code had not ·been established beyond reasonable doubt. that· the offence, the evidence is alleged to have caused - judgment on The High Court delievered the appeal of 8th May, 1947, allowing the State Government. Shortly stated, that conclusion arrived at by the High Court was that Ratan Singh had as much right to the possession of the field as Bhagwati Kuer, tl1at both parties· were trying to take exclusive possession of the field, that both parties were prepared enforce for all contingencies to vindicate rights, and hence of possession was the question wholly immaterial and no right of private defence could be successfully pleaded by the appellants. A persual of tlie two judgments before us that while the Sessions Judge took great pains to discuss all the important aspects of tlie case record his opinion on every material point, tlie learned Judges of the High Court have reversed his decision witliout displacing the very substantial reasons given by him in support of his conclusion. The difference in the treatment of the case by the two courts below S.C.R. SUPREME COURT REPORTS 197 is particularly noticeable in the man'ner m which they have dealt with the prosecution evidence. We that while the Sessions Judge took up the evidence of each witness and recorded his findil;,lg with regard his credibility after discussing the minutest details of the evidence, all that the learned Judges of the High Court have to say about the prosecution evidence as a whole i~ as follows :- "In Prag Dat's case their Lordships observed : 'As usual in cases of this kind the police have found ·difficult to secure independent testimony of what did take place; Those of the villagers who were present and looking on would probably by sympathy and bias be so attached to one or other of the disputing parties. that it would be hopeless reliable evidence from them.' to get disinterested 1951 Surajpal Singlt> and 0 ther.t v; The State~ Falll Ali f. it. But as This difficulty the police find in most riot cases and this case is not free in Prag Dat's four witnesses, viz., Deo case, m this case there are Sukh, Rori Singh, Ra1U Singh, and Ratan Singµ, who could be characterised as independent witnesses they support the case for the prosecution, in the main. In our the whole worthy of credence and sufficient to justify the con- viction of the respondents." judgment testimony is on to read In view of the summary treatment of the evidence evidence the High Court, we had adduced in the case with great care, and what we find is that the four witnesses, whose evidence h~s been the persons the High Court; are just accepted by against whom very senous criticism was offered by the Sessions Judge. Of these witnesses, Ratan Singh not being an eye-witness may be ruled- out. As to the remaining witnesses, we are on the whole inclined to · agree with the view expresed by the Sessions Judge. According to the Sessions . Judge, the manner in \Vhich Deva Sukh was brought into the picture and the cir- strong cumstances attendant on his evidence, furnish reasons for rejecting has been held is that the whole case of the prosecution the prosecution version. What · 2'6 ' - - 1951 Surajpal Singh and Others v. The State. Fazl Ali /. 198 SUPREME COURT REPORTS [19521 injuries in the course of that Deva Sukh had received the alleged occurrence was inj~rics "were made up so as to create evidence of pnvate defence" to be be utilized by the prosecution to meet the charge of having caused injuries to the members of the appellants' party. It has accused had least four persons on the injuries. Mahindarpal had received received injuries, and his condition .was serious than 16 some time. Karan s;ngh had 12 injuries, one of which was grievous. Hari Singh ·had injuries including a grievous injury, and Nikka Singh also was injured, his injury having been noticed by the investi- gating sub-inspector. side of received 7 established that any of Tn the prosecution evidence, it was stated that many of the accused persons were armed with lathis and had used them, and it would be strange if it was not pro- their side had any the persons on injuries attributable to lathis. It has been established that the four injured persons of Ratan Singh's party, viz., Rajpal Singh, Lakhan Singh, Behari Singh Zorawar _Singh, had only gun-shot wounds. A seriou• question which arises in this case is at what stage the gun was used, and whether it was used in self-defence after the . members of the appellants' party were as- saulted with lathis or it was used before they were as- saulted. to admit The prosecution witnesses had first a gun was fired twice in the air dnd then actual "firing took place. This version of firing lends support to the defence story that the gun was fired in self-defence when Ratan Singh's men attacked members of the accused's party. The Sessions Judge has expressed defence case Deva Sukh having been assaulted with a lathi in the first instance so as aggressors, that Behari Singh and his men had used lathis in order to defend themselves. cases of the parties and to get at the that in order introduced it being the prosecution case true picture, to make the appellants' party In order to resolve to meet the story the prosecution the conflict the view .... ,_ ,( 1 ! S.C.R. •SUPREME COURT REPORTS 199

#1951. about Surajpal Singh and O,thers The vState. I \ evidence the question the name of the occurrence and Sessions Judge went very minutely as to whether there was trustworth} Deva Sukh having received any injury at all in occurrence. It seems to us ~h\lt there is .a formidable the- conclusion ulti- array of -circumstances to support mately reached by the Sessions Judge. It appears that in the fir~t information report there is no reference to Deva Sukh or to the. injuries said to have been received by him. The Sessions Judge has pointed out that there was a considerable interval of· time between the occur- rence and the lodging of the -first infoonation report, and therefore . it is surprising that the most important incident of most important witness was omitted the report. Again, no reference was made to Deva Sukh. or to his injuries in the dying declaration of Behari Singh which was recorded by one Dr. Shankar Deo, and also in that of Lakhan Singh. The Sessions Judge . has further pointed out prosecution witnesses, Chokha, Prempal, Cheta and Gangola Singh, who were examined by the investigating officer on the 18th June, did not also -refer to Deva Sukh. The investigating sub-inspector was informed of . the injuries on Deva Sukh and hi~ presence at the time of the occurrence for the first time on the 19th June, 1945, and Deva Suk.h's explanation for not appe, aring before him·· at the earliest opportunity was that he was frightened and had concealed himself in his house for about two days and had directed his relations not to inform the police of his presence. He also stated that' on his arrival in his house after the occurrence he did not inform his relations of what had happened. Some of these matters might have been overlooked if there had been convincing evidence about his having actually received injuries, but ws are' satisfied evi- dence as is before us is extremely unsatisfactory and suspicious and we entertain grave doubts as to whether Deva Sukh received any injuries at all. Dr. Shanker Deo, who examined Deva Sukh, a Kauiraganj, which is not far from village Shahgarh. Sub-Assistant pract1smg Surgeon retired Faz! Ali 1. I I • • 1951 Surajpal Singh and Others v. The State. Faz/ Ali /. 200 SUPREME COURT REPORTS [1952] and one of two bruises across He admits that he had known Ratan Singh since his childhood, and when he was a child he used to be taught at the house of Ratan Singh by a teacher em- ployed by Ratan Singh' s uncle. He has stated Deva Sukh had the back of middle of the left forearm, them was grievous since the left ulna was fractured. He further says that at the time of examination he did charge fees from Deva Sukh, that he was brought to him that when three days after the other injured persons, the latter group of persons came to him none of them told him that there was one more injured person to be examined, and that Deva Sukh was brought to him by Ratan Singh's unsatisfactory features in the evidence of this doctor relating to other matters which need not be referred to, but what somewhat remarkable is that though there is a Dis- trict Board Hospital at Jalali about four miles · from Kauirganj, Deva Sukh did not obtain an injury certi- ficate from the doctor in charge of that hospital. Deva Sukh says that he did go to that hospital to have his injuries attended to, but there is no evidence to corro- borate this. These facts as well as a number of other facts relied upon by the Sessions support his theory, and once it is held that the pro- secution has to rely on fabricated evidence, it throws doubts on the entire case. Judge do go servant. There From the record, it appears that Surajpal Singh was the person who had been taking an active interest in admittedly spending the ejectment suit, and he was money. Ratan Singh says that he had also paid money to Surajpal Singh towards the expenditure, but this is not probable because he and Surajpal ·had been on bad is the person to terms. whom, the Amin gave possession of the land, but in spite of this fact, Ratan Singh's men started opera- tions on the land ignoring Bhagwati Kuer, which Ratan Singh had no right to do; even assuming that If Behari Singh and the the land was joint property. other men sent by Ratan Singh were trying to take exclusive possession of started It is admitted that Surajpal land and had S.C.R. SUPREME COURT REPORTS 201 6perations thereon, Surajpal Singh had every protest, and if his men were beaten first, of which there are strong indications in the case, he was entitled to repel the attack in exercise of the right of private defence. That Ratan Singh had made ample pre- clear. is quite through Behari Singh parations Admittedly, there were a number of. per.sons with lathis present at the scene on his behalf including outsiders like Nawab Mewati, who is said to have been a well-known fighter, Zorawar and others. 1951 Surajpal Singh . and Others v. The State. Fazl Ali f. ... -· As regards ~he remaining two witnesses, to whom the High Court has made reference, viz., Rori Singh and Pransukh, it seems to us that the "High Couri: has overlooked the comments made by the Sessions Judge their evidence, some of which are of consider- able force. What has tltat they ~ere, not were not · independent witnesses mentioned in the first information report as witnesses to the occurrence, and they were examined by the sub- 21st June, . 1945. inspector as After reading the two judgments, we see no reason why the opinion of the Sessions Judge regarding these witnesses should not receive the weight which should normally be attached to that of the ,trial court. the 20th and impressed us late as 1s It is well-established that in an appeal under sec- tlte High tion 417 of the Criminal Procedure Codel the evidence upon Court has full power to review which tlte order of acquittal was founded, but equally well-settled that the presumption of innocence of the accused is hlrther reinforced by his acquittal by the trial court, and the findings of the trial court which had the advantage of seeing the witn~sses and hearing their evidence can be reversed only for very substantia.1 and compelling reasons. On the whole, we are inclined to hold that Sessions Judge had taken a reasonable view of facts of the case, and in our opinion there were no good reasons for reversing that view. The assessors with whose aid the trial was held, were unanimously of the opinion that the accused were not guilty, and ' 202 SUPREME CQURT REPORTS [19521 1951 Sur11ipal Singh and Others v. The State. Faz/ Ali /. though 25 persons were placed on evidence, the State Government preferred an only against 5 of them on the sole ground that acquittal was against the weight of evidence on record. trial on identical appeal In the result, we allow the viction and sentences of them of all the charges. appeal, set aside the con- and acquit appellants Appeal allowed. Agent for the appellant: P. K. Chatterjee the respondent: I. N. Shroff Agent for Bose. for P. K. .. 1951 D•v:. 14. BIJJOY CHAID POTRA v. THE STATE [SAIYID FAZL Au and VrvIAN BosE JJ.] Criminal Procedure Code (Act V of 1898), ss. 237, 342-lndian Penal Code (XLV of 1860), ss. 307, 326-Charge undei· '· 307- Conviction under s. 326-Legalt"ty-Failure to examine accused fully -When vitiates trial-Necessity of prejudice to accused. the verdict, The appellant who inflicted serious injuries on another was charged under s. 307 of the Indian Penal Code but the jury returned a verdict of guilty against him under s. 326 of the Penal Code, and the Sessions Judge, accepting convicted It was contended that the conviction was hiin under s. 326. inasmuch as the offence under s. 326 was not a minor illegal offence with reference to the offence under s. 307. Held, that as it was open to the Sessions Judge, on the facts of the case, to charge the appellant alternatively under ss. 307 and 326 of the Code the case was covered by s. 237 of the Criminal Procedure Code, and the co)lviction under s. 326 of the Penal Code was pro. per, even though there was no charge under the section. Begu v. King Emperor (52 I.A. 191) applied. In order that a conviction may be set aside for non-compliance with the provisions of s. 342 of the Criminal Procedure Code, it is not sufficient fur the accused merely to show that he was not fully examined as required by the section, but he must also show that such examination has materially ·prejudiced him. ~