In Surya Baksh Singh v. State of Uttar Pradesh on 23 Apr 2025

Judgment

1. This criminal appeal has been preferred assailing the judgement and order dated 09.12.1983 passed by Special Additional Sessions Judge, Bulandshahar in Sessions Trial No. 580 of 1980 convicting appellants Ram Dutt and Ratan Lal under Section 302 IPC read with section 34 IPC to undergo imprisonment for life, appellant Rajinder and Mahavir under section 302/34 IPC and are sentenced to undergo imprisonment for life. Appellant Rajinder is further convicted under section 324 IPC and is sentenced to undergo rigorous imprisonment for two years. All the sentences to run concurrently.

2. Out of the four appellants, the appeal in respect of appellant no. 1-Ratan Lal, appellant no. 2-Mahabir and appellant no. 4-Ram Dutt has already been abated and the appeal is surviving only in respect of appellant no. 3-Rajinder s/o Sri Gopi Chand Sharma. As per latest office report dated 25.3.2025 based on the report of Chief Judicial Magistrate, Bulandshahar dated 27.2.2025, appellant no. 3- Rajinder left his village about 30 years ago after selling all his 2 movable and immovable property and his whereabouts is not known.

3. It can safely be presumed that appellant no.3 Rajinder is absconding.

4. Insofar as the informant Satyapal Sharma is concerned, he has also left his village 14 years back and his whereabouts are also not known.

5. In Surya Baksh Singh vs. State of Uttar Pradesh, (2014) 14 SCC 222, the Hon’ble Apex Court has held that it is always not necessary to adjourn the matter in case both, the appellant or his counsel/lawyer are absent and that the Court can decide the appeal on merits after perusal of the record and the judgement of the trial Court. It has further been observed that if the case is decided on merits in the absence of the appellant, the higher court can remedy the situation. It has also been observed that appointment of Amicus Curiae is also on the discretion of the court. In paragraph 26 of the said judgement, it was held that it is always not essential for the High Court to an appoint Amicus Curiae, paragraphs 24 and 26 of the said judgement whereof are quoted as under: “24. It seems to us that it is necessary for the Appellate Court which is confronted with the absence of the convict as well as his Counsel, to immediately proceed against the persons who stood surety at the time when the convict was granted bail, as this may lead to his discovery and production in Court. If even this exercise fails to locate and bring forth the convict, the Appellate Court is empowered to dismiss the appeal. We fully and respectfully concur with the recent elucidation of the law, profound yet perspicuous, in K.S. Panduranga v. State of Karnataka, (2013) 3 SCC 721. After a comprehensive analysis of previous decisions our learned Brother had distilled the legal position into six propositions:

“19.1. that the High Court cannot dismiss an appeal for non- prosecution simpliciter without examining the merits;

19.2. that the Court is not bound to adjourn the matter if both the Appellant or his Counsel/lawyer are absent;

19.3. that the court may, as a matter of prudence or indulgence, adjourn the matter but it is not bound to do so; 3

19.4. that it can dispose of the appeal after perusing the record and judgment of the trial court.

19.5. that if the accused is in jail and cannot, on his own, come to court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the Appellant- accused if his lawyer is not present, and if the lawyer is absent and the court deems it appropriate to appoint a lawyer at the State expense to assist it, nothing in law would preclude the court from doing so; and

19.6. that if the case is decided on merits in the absence of the Appellant, the higher court can remedy the situation. 25…..

26. Reverting back to the facts of the present case a perusal of the impugned order makes it abundantly evident that the High Court has considered the case in all its complexities. The argument that the High Court was duty-bound to appoint an amicus curiae is not legally sound. Panduranga correctly considers Mohd. Sukur Ali v. State of Assam (1996) 4 SCC 729 as per incuriam, inasmuch as the latter mandates the appointment of an amicus curiae and is thus irreconcilable with Bani Singh vs. State of U.P. (1996) 4 SCC 720. In the case in hand the High Court has manifestly discussed the evidence that have been led, and finding it of probative value, has come to the conclusion that the conviction is above Appellate reproach correction and interference. In view of the analysis of the law the contention raised before us that it was essential for the High Court to have appointed an amicus curiae is wholly untenable. The High Court has duly undertaken the curial responsibility that fastens upon the Appellate Court, and cannot be faulted on the approach adopted by it. In this respect, we find no error.” (Emphasis supplied)

6. The aforesaid view has been followed by the Hon’ble Full Bench in Criminal Reference No.1 of 2024, In Re-Procedure To Be Followed In Hearing Of Criminal Appeals vs. State of U.P., decided on 22.01.2025, paragraph Nos. 151 and 152 whereof are quoted as under: “151. The crux of the aforesaid observations of the three celebrated judgments rendered by the Hon’ble Supreme Court in Bani Singh and others Vs. State of U.P. 11, Surya Baksh Singh Vs. State of Uttar Pradesh 12 and K.S. Panduranga Vs. State of Karnataka 13, thus, covers the entire length and breadth of Question No. 5 formulated by the Division Bench at Lucknow for consideration by this Bench and no fresh exercise, in our considered opinion, is required to be 4 undertaken by this Bench, including on one point which has been highlighted by the Division Bench at Lucknow i.e. whether the amicus curiae may be appointed even when the presence of the convict, appellant or accused-respondent may be secured and without his consent.

152. The aforesaid legal precedents would evidently canvass that the emphasis of the Apex Court has been on providing opportunity of being heard to the appellant who is willing to cooperate with the appellate court or his counsel and in this regard a process to cause his presence for the purpose of giving opportunity of being heard is required to be issued to him and when the court is satisfied that such appellant is deliberately avoiding his presence before the court, in such a situation, the court may dispose of the appeal in the manner approved by the Hon’ble Supreme Court in Bani Singh and others Vs. State of U.P. 11, Surya Baksh Singh Vs. State of Uttar Pradesh 12 and K.S. Panduranga Vs. State of Karnataka 13 (i.e. after perusing the record/evidence vis-a-vis judgment of the trial court with the assistance of prosecutor and Amicus, if appointed) and we do not have any reason to deviate from the settled proposition laid down by the Apex Court in the above mentioned cases, moreover, the appointment of amicus is only for the purpose to provide fair trail to the appellant and also for rendering the assistance to the Court.”

7. We, therefore, proceed to hear the appeal on merits with the help of learned A.G.A.

8. Prosecution story, in brief, is that the complainant was serving in Birla Mill and his family used to live at village Khalaur. His family members (accused persons Rajinder and Ram Dutta) used to maintain enmity with him. About 15 days before the occurrence which took place on 14.3.1979 at about 7.00 a.m., accused persons Rajinder and Ram Dutta had misbehaved with the wife of Satyapal Sharma. The wife of the informant sent a message about this incident through their daughter Rani at Delhi. The informant and his son Dinesh Chandra (deceased) had come to their village Khalaur on the occasion of Holi. The deceased Dinesh Chandra was also serving at Delhi in the same Mill where his father was working. On the date of occurrence, at about 7.00 a.m., when the deceased Dinesh Chander was sitting outside his house, he asked accused Rajinder as to why he was harassing his mother and his wife in his absence. Upon this, 5 accused Rajinder, Ram Dutta and Mahavir flashed out knives. Accused Ratan Lal caught hold of Dinesh Chander and accused Rajinder, Ram Dutta and Mahavir stabbed him with their knives. The informant, his wife, his sons Naresh Chandra and Suresh Chandra and other neighbours tried to save Dinesh Chandra from the knife blows. In this process, the wife of the informant Ram Kali also received knife blows at the hands of accused Rajinder. As a result of the knife blows, Dinesh Chandra breathed his last at the spot. This occurrence took place at about 7.00 a.m. The informant left the dead body of his son in the supervision of chowkidar Leela and went to the police station with chowkidar Mukat where he delivered the written report (Ext. Ka-l). On the basis of the aforesaid written report, First Information Report (Ext. Ka-3) was lodged. The police registered the case in general diary and after concluding the investigation, submitted a chargesheet against the accused persons under section 302 read with section 34 IPC. The accused persons denied charges levelled against them and pleaded not guilty and claimed trial.

9. The prosecution, in support of its case, has examined PW-1 Satyapal Sharma, PW-2 Smt. Ram Kali, wife of Satyapal Sharma, PW-3 Dr. P.C. Agarwal, PW-4 Km. Krishna, sister of the deceased, PW-5 H.C. Omkar Singh, PW-6 Dr. R.C. Sharma, PW-7 Constable Bhim Singh, PW-8 Station Officer K.P. Singh. The accused have examined in their defence DW-1 Sri N. Joshi, DW-2 Sri Medhi Ram Sharma, DW-3 Dr. H.U.K. Zoberi.

10. The prosecution has also submitted documentary evidences i.e. Ex. Ka-1-written report, Ex. Ka-2 postmortem report, Ex. Ka-3 FIR, Ex. Ka-5 injury report of Ram Kali, Ex. Ka-11 site plan with index, Ex. Ka-12 recovery memo of blood stained and plain earth, Ex. Ka- 13 Ex. Ka-12 recovery memo of blood stained dhoti and blouse, Ex. Ka-14 report of chemical examiner. 6

11. While going through the trial court judgment, we found that the defence taken by the accused persons was that there was no motive for the accused persons to commit such offence and there is material discrepancy in the statements of the witnesses in respect of motive. At one place, it was alleged that there was a dispute in respect of cutting away sarso ka saag from the field of Rajinder and at other place, it is alleged that the ladies of the family of the informant side were beaten with lathis by accused Rajinder.

12. PW2 Ram Kali alleges that she was beaten by lathis and the other witnesses state that they were beaten by fists and kicks. We do not find any substance in the aforesaid defence in as much as the motive is not relevant in a case of direct ocular evidence. The incident had taken place at the house of the deceased and of PW1 Satyapal Sharma, father of the deceased, PW2 Ram Kali and Km. Krishna, sister of the deceased. Site plan was prepared which was duly proved by the Investigating Officer in his statement and it clearly proves the place of occurrence and there are three natural witnesses, namely, father, mother and real sister of the deceased out of which, PW2 Ram Kali is the injured eye witness who is mother of the deceased. As such, minor discrepancy in attributing the motive loses its importance. That apart, Ratan Lal, accused, in his examination under section 313 Cr.P.C. has clearly admitted enmity because of raising of walls, therefore, the enmity between both sides is not in dispute. Hence, we find that the court below has rightly observed that motive is not required to be proved beyond any reasonable doubt.

13. In the present case, there are enough circumstances and evidence on record proving the involvement of the accused persons by direct involvement.

14. Before proceeding further, it would be appropriate to refer to various relevant judgements of Hon’ble Apex Court as well as of this 7 Court.

15. In Krishna Mochi and others vs. State of Bihar, (2002) 6 SCC 81, the Hon’ble Apex Court laid emphasis on realistic approach to be adopted by the criminal courts while appreciating evidence in criminal trial, paragraph 32 whereof is quoted as under: "32. The court while appreciating the evidence should not lose sight of these realities of life and cannot afford to take an unrealistic approach by sitting in an ivory tower. I find that in recent times the tendency to acquit an accused easily is galloping fast. It is very easy to pass an order of acquittal on the basis of minor points raised in the case by a short judgment so as to achieve the yardstick of disposal. Some discrepancy is bound to be there in each and every case which should not weigh with the court so long it does not materially affect the prosecution case. In case discrepancies pointed out are in the realm of pebbles, the court should tread upon it, but if the same are boulders, the court should not make an attempt to jump over the same. These days when crime is looming large and humanity is suffering and the society is so much affected thereby, duties and responsibilities of the courts have become much more. Now the maxim "let hundred guilty persons be acquitted, but not a single innocent be convicted" is, in practice, changing the world over and courts have been compelled to accept that "society suffers by wrong convictions and it equally suffers by wrong acquittals". I find that this Court in recent times has conscientiously taken notice of these facts from time to time………" (Emphasis supplied)

16. In Masalti vs. State of U.P . , AIR 1965 SC 202, Hon’ble Apex Court in paragraph 14 observed as under: "14. But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. ... The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice." (Emphasis supplied)

17. In Darya Singh vs. State of Punjab, AIR 1965 SC 328, the Hon’ble Apex Court has also taken the view that related witness does not necessarily mean or is equivalent to an interested witness. A witness may be called interested only when he or she derives some benefit from the result of litigation; a decree in a civil case, or in 8 seeing a person punished in a criminal trial, paragraph 6 whereof is quoted as under: "6. On principle, however, it is difficult to accept the plea that if a witness is shown to be a relative of the deceased and it is also shown that he shared the hostility of the victim towards the assailant, his evidence can never be accepted unless it is corroborated on material particulars."

18. In Appabhai and another vs. State of Gujarat, AIR 1988 SC 696, the Hon’ble Apex Court in paragraph 11 observed as under: "11……...Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability if any, suggested by the accused. The Court, however, must bear in mind that witnesses to a serious crime may not react in a normal manner. Nor do they react uniformly. The horror stricken witnesses at a dastardly crime or an act of egregious nature may react differently. Their, course of conduct may not be of ordinary type in the normal circumstances. The Court, therefore, cannot reject their evidence merely because they have behaved or reacted in an unusual manner….." (Emphasis supplied)

19. Similar view has been taken in State of A.P. vs. S. Rayappa and others, (2006) 4 SCC 512 wherein it has been observed that it is now almost a fashion that public is reluctant to appear and depose before the court especially in criminal cases and the cases for that reason itself are dragged for years and years, paragraph 6 whereof is quoted as under: "6......by now, it is a well-established principle of law that testimony of a witness otherwise inspiring confidence cannot be discarded on the ground that he being a relation of the deceased 9 is an interested witness. A close relative who is a very natural witness cannot be termed as interested witness. The term interested postulates that the person concerned must have some direct interest in seeing the accused person being convicted somehow or the other either because of animosity or some other reasons." (Emphasis supplied)

20. In Pulicherla Nagaraju @ Nagaraja Reddy v. State of AP, (2006) 11 SCC 444, the Hon’ble Apex Court in paragraph 16 has held as under: "16. In this case, we find that the trial court had rejected the evidence of PW1 and PW2 merely because they were interested witnesses being the brother and father of the deceased. But it is well settled that evidence of a witness cannot be discarded merely on the ground that he is either partisan or interested or closely related to the deceased, if it is otherwise, found to be trustworthy and credible. It only requires scrutiny with more care and caution, so that neither the guilty escape nor the innocent wrongly convicted. If on such careful scrutiny, the evidence is found to be reliable and probable, it can be acted upon. If it is found to be improbable or suspicious, it ought to be rejected. Where the witness has a motive to falsely implicate the accused, his testimony should have corroboration in regard to material particulars before it is accepted." (Emphasis supplied)

21. In Satbir Singh and others vs. State of U.P., (2009) 13 SCC 790, the Hon’ble Apex Court in paragraph 26 held as under: "26. It is now a well-settled principle of law that only because the witnesses are not independent ones may not by itself be a ground to discard the prosecution case. If the prosecution case has been supported by the witnesses and no cogent reason has been shown to discredit their statements, a judgment of conviction can certainly be based thereupon ...... " (Emphasis supplied)

22. In Jayabalan vs. U.T. of Pondicherry, 2010 (68) ACC 308 (SC), the Hon’ble Apex Court in paragraph 21 held as under: "21. We are of the considered view that in cases where the court is called upon to deal with the evidence of the interested witnesses, the approach of the court, while appreciating the evidence of such witnesses must not be pedantic. The court must be cautious in appreciating and accepting the evidence 10 given by the interested witnesses but the court must not be suspicious of such evidence. The primary endeavour of the court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim." (Emphasis supplied)

23. In Dharnidhar vs. State of U.P., (2010) 7 SCC 759, the Hon’ble Apex Court held that there is no hard and fast rule that family members can never be true witnesses to the occurrence and that they will always depose falsely before the Court. It will always depend upon the facts and circumstances of a given case, paragraphs 12 and 13 whereof is quoted as under: “12. There is no hard and fast rule that family members can never be true witnesses to the occurrence and that they will always depose falsely before the Court. It will always depend upon the facts and circumstances of a given case. In the case of Jayabalan v. U.T. of Pondicherry [(2010)1 SCC 199], this Court had occasion to consider whether the evidence of interested witnesses can be relied upon. The Court took the view that a pedantic approach cannot be applied while dealing with the evidence of an interested witness. Such evidence cannot be ignored or thrown out solely because it comes from a person closely related to the victim. The Court held as under: " 23. We are of the considered view that in cases where the court is called upon to deal with the evidence of the interested witnesses, the approach of the court, while appreciating the evidence of such witnesses must not be pedantic. The court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the court must not be suspicious of such evidence. The primary endeavour of the court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim. ……..

13. Similar view was taken by this Court in Ram Bharosey v. State of U.P. [AIR 2010 SC 917], where the Court stated the dictum of law that a close relative of the deceased does not, per se, become an interested witness. An interested witness is one who is interested in securing the conviction of a person out of vengeance or enmity or due to disputes and deposes before the Court only with that intention and not to further the cause of justice. The law relating to appreciation of evidence 11 of an interested witness is well settled, according to which, the version of an interested witness cannot be thrown over- board, but has to be examined carefully before accepting the same.

14. In the light of the above judgments, it is clear that the statements of the alleged interested witnesses can be safely relied upon by the Court in support of the prosecution's story. But this needs to be done with care and to ensure that the administration of criminal justice is not undermined by the persons, who are closely related to the deceased. When their statements find corroboration by other witnesses, expert evidence and the circumstances of the case clearly depict completion of the chain of evidence pointing out to the guilt of the accused, then we see no reason why the statement of so called `interested witnesses' cannot be relied upon by the Court.” (Emphasis supplied)

24. In a very recent judgement rendered by Hon’ble Apex Court in Baban Shankar Daphal and others vs. The State of Maharashtra, 2025 SCC Online SC 137 in respect of testimony of witness which should not be discarded merely because of relation with victim, the Hon’ble Apex Court has, in paragraphs 27 and 28, held as under: “27. One of the contentions of the learned counsel for the appellants is that the eyewitnesses to the incident were all closely related to the deceased and for prudence the prosecution ought to have examined some other independent eyewitness as well who were present at the time of the unfortunate incident. This was also the view taken by the Trial Court, but the High Court has correctly rejected such an approach and held that merely because there were some more independent witnesses also, who had reached the place of incident, the evidence of the relatives cannot be disbelieved. The law nowhere states that the evidence of the interested witness should be discarded altogether. The law only warrants that their evidence should be scrutinized with care and caution. It has been held by this Court in the catena of judgments that merely if a witness is a relative, their testimony cannot be discarded on that ground alone.

28. In criminal cases, the credibility of witnesses, particularly those who are close relatives of the victim, is often scrutinized. However, being a relative does not automatically render a witness "interested" or biased. The term "interested" refers to witnesses who have a personal stake in the outcome, such as a desire for revenge or to falsely implicate the accused due to enmity 12 or personal gain. A "related" witness, on the other hand, is someone who may be naturally present at the scene of the crime, and their testimony should not be dismissed simply because of their relationship to the victim. Courts must assess the reliability, consistency, and coherence of their statements rather than labelling them as untrustworthy. (Emphasis supplied)

25. In a recent judgement rendered by Hon’ble Apex Court in Shahaja @ Shahajan Ismail Mohd. vs. State of Maharashtra, (2023) 12 SCC 558 has observed that the appreciation of ocular evidence is a hard task and has summed up the judicially evolved principles for appreciation of ocular evidence in a criminal case, paragraphs 29 and 30 whereof is quoted as under: “29. The appreciation of ocular evidence is a hard task. There is no fixed or straight-jacket formula for appreciation of the ocular evidence. The judicially evolved principles for appreciation of ocular evidence in a criminal case can be enumerated as under:

29.1 While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief.

29.2. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.

29.3 When eye-witness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence.

29.4. Minor discrepancies on trivial matters not touching the 13 core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.

29.5. Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.

29.6. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.

29.7. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.

29.8. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.

29.9. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.

29.10. In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.

29.11. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.

29.12. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub- conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being 14 disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him.

29.13. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness.