BIR SINGH Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) This is an appeal under the Enlargement of Supreme Court Jurisdiction Act read with S. 378 of the Cri. P.C., 1973. Although it was not necessary yet the appellants appear to have moved the High Court of Allahabad for a certificate which was granted by the said Court as an appeal as of right lay to this Court under the aforesaid provisions.

(2.) The appellants were tried before the Court of the Second Additional Sessions Judge, Unnao for charges under Ss. 302/34, 307/34, 302 and 307. The trial court after considering the evidence led before it came to the conclusion that the prosecution has failed to prove the case against the appellants beyond reasonable doubt and accordingly acquitted the appellants of all the charges framed against them. There after the State of Uttar Pradesh went up in appeal before the High Court against the order of acquittal passed by the Additional Sessions Judge. The High Court however has taken a different view and reversed the order of acquittal passed by the trial Court and held that the prosecution case was amply proved against the appellants and convicted the appellant Bir Singh under Section 302 and sentenced him to imprisonment for life. He was also convicted under Sec. 307 read with S. 34 and sentenced to 7 years rigorous imprisonment. The appellant Ram Dularey Singh was convicted under S. 307 and sentenced to 7 years rigorous imprisonment and also under S. 302 read with Sec. 34 and sentenced to imprisonment for life. The third appellant Hukum Singh was convicted under Section 302/34 and sentenced to life imprisonment and also under S. 307 read with S. 34 to 7 years rigorous imprisonment. The appellants have filed the present appeal against the aforesaid order of conviction and sentences passed by the High Court.

(3.) The facts of the present case lie within a very narrow compass and the occurrence appears to be a result of a chronic dispute between two factions in the village. The complainant and the witnesses examined by the prosecution to prove its case bear serious animus against the appellants and were interested. This fact is not disputed by the prosecution. The High Court was of the opinion that even if the evidence of the witnesses be considered with great amount of caution there was no good reason to reject the evidence on their intrinsic merits. The learned Sessions Judge however was of the view that as the prosecution has examined only inimical witnesses and failed to examine two independent witnesses who were named in the F.I.R. as eye-witnesses and who also seemed to have, according to the evidence of the prosecution witnesses, seen the occurrence, their non-examination was sufficient to demolish the entire edifice of the case. One of the important aspects which the High Court appears to have overlooked was whether the finding of the Sessions Judge, that in the absence of available independent evidence an adverse inference against the prosecution should be drawn was justified. Assuming that the High Court on appraisement of the evidence may not have chosen to draw the adverse inference could it be said that if the trial Judge was not satisfied with the interested and inimical evidence and drew an adverse inference against the prosecution for non-examination of witnesses who were available and yet not produced the view he took was wholly an unreasonable view in the facts and circumstances of the case. In our opinion, if in the present state of the evidence the Sessions Judge refused to accept the prosecution case in the absence of the evidence of Bhikari and Shambhu, who according to the prosecution itself had seen the entire occurrence it could not be said that the view taken by the Sessions Judge was either manifestly wrong, perverse or unreasonable. It would however appear that there were other circumstances which were relied upon by the learned Sessions Judge for discrediting the prosecution case which seem to have been brushed aside by the High Court mostly on conjectural grounds.