# '~-·· ·· _,-- . 588 """-. / STATE OF U. P v. HARI PRASAD & OTHERS

- **Citation:** [1974] 2 S.C.R. 588
- **Court:** Supreme Court of India
- **Decided:** 1973-12-06
- **Case number:** Criminal Appeal No. 215 of 1970
- **Bench:** M. H. Beg, Y.V. Crandrachud
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/588-state-of-u-p-v-hari-prasad-others-6145
- **Pages:** 6

## Headnote

·p.nal Codt-Murtla-Motlu for
murder.
There w;re disputes over land b:!ween the complain:mt and the p~rty or the
accused, all of wh~m were connected mter st . The deceased was a traditional pri .. t
ltlth of the .::>mphrnant as well as of the accused. All the accused were on fnendJY
terr•• ffitn the dec:ased. ~n the day or_thc occur_rcnce the deceased pri~t :~~~d
his mWt:r lf~re ;tay_,ng wr_th th9 compl~mant as hts_guests
The compla1aant311d
S(lm: m::nOI:rs of ht~ famtiY W!Ce sle~p,ng on one stde o r the terrace of his hoU>e
tloe pdest and few others were sleeping on another side, while the complairunr~
s:rvant and som: _others wore sleeping yet on another portion of the ternceortht
("
s~m• blu~e. W:ule one group or live accused committ<>d the murder of the scr·
v1nt of th: c>1l~ltinant, the ~:e:>nd S'?UP of fivo murdered the priest and caused
;njury to hi~ m'ther. The witnesses cl3!m:d that they identified the accused in the
1 is ill or the L3ntcrn which was alleged to be hanging by n pole four or live feet high.
The s "'~ ions Judse held thnt the 10 accused formed unlawful assembly for the
purpO~ of committing the murder of the complninont but by mistnke committed
the murder of the prtcst and the servant. Five or the accused belonging to the
0.
vill•ge ,.·ere •entenccd to death while the others were sentenced to imprisonment
for hfe.
The High Court acquiued oil the nccus.d.
Dismissing ihe app~al of the State 10 this Court
HELD : (I) The High Court w:u right in the view thot the occurrence tookpllre
u11.der darkness and that in the ab.l¢1lce of ony light none or the prosecution Wit·
neu:scould havcid<ntilied the culpr it~ and that the existence of the lantern was open
w Ct11VC doubt. If tflc lantern was burning justnenr the pl~cc where the priest
"'u sleeping it is difficult to hold that the murder was committed through on error
mistaking him to be the complainant. The accused had no moth·e to as.•ault the
priest an <I eauoe injury to his mother whid"t tended to show thnt they had not partt·
cipatcd in his murder. (593F; 592D und D )
(2) If the various eYe witnesses were able to Identify the occuscd in the light or
the laJitern the accused could have been able to identtfY the victim. (592E)
CRtMtNAL A r PtLLATE
Jurusmcrto~ ;
Criminal Appeal No.
215 of 1970.
Appeal by ~pedal leave from the judgmer.l and order dated
the 12th May, 1970 of the Allahabad High Court Luck now D~nch at
Lucknow in Criminal Appeal Nos. 35 and 36 of 1970.
0. P. Ra11a, for the appellant.
.A. K. GupJa, for the respondents.

## Text

'~-··
··
_,--
. 588
"""-. /
STATE OF U. P.
v
HARI PRASAD & OTHERS
December 6, 1973
[M. H. BEG AND Y.V. CRANDRACHUD, JJ.]
·p.nal Codt-Murtla-Motlu for
murder.
There w;re disputes over land b:!ween the complain:mt and the p~rty or the
accused, all of wh~m were connected mter st . The deceased was a traditional pri .. t
ltlth of the .::>mphrnant as well as of the accused. All the accused were on fnendJY
terr•• ffitn the dec:ased. ~n the day or_thc occur_rcnce the deceased pri~t :~~~d
his mWt:r lf~re ;tay_,ng wr_th th9 compl~mant as hts_guests
The compla1aant311d
S(lm: m::nOI:rs of ht~ famtiY W!Ce sle~p,ng on one stde o r the terrace of his hoU>e
tloe pdest and few others were sleeping on another side, while the complairunr~
s:rvant and som: _others wore sleeping yet on another portion of the ternceortht
("
s~m• blu~e. W:ule one group or live accused committ<>d the murder of the scr·
v1nt of th: c>1l~ltinant, the ~:e:>nd S'?UP of fivo murdered the priest and caused
;njury to hi~ m'ther. The witnesses cl3!m:d that they identified the accused in the
1 is ill or the L3ntcrn which was alleged to be hanging by n pole four or live feet high.
The s "'~ ions Judse held thnt the 10 accused formed unlawful assembly for the
purpO~ of committing the murder of the complninont but by mistnke committed
the murder of the prtcst and the servant. Five or the accused belonging to the
0.
vill•ge ,.·ere •entenccd to death while the others were sentenced to imprisonment
for hfe.
The High Court acquiued oil the nccus.d.
Dismissing ihe app~al of the State 10 this Court
HELD : (I) The High Court w:u right in the view thot the occurrence tookpllre
u11.der darkness and that in the ab.l¢1lce of ony light none or the prosecution Wit·
neu:scould havcid<ntilied the culpr it~ and that the existence of the lantern was open
w Ct11VC doubt. If tflc lantern was burning justnenr the pl~cc where the priest
"'u sleeping it is difficult to hold that the murder was committed through on error
mistaking him to be the complainant. The accused had no moth·e to as.•ault the
priest an <I eauoe injury to his mother whid"t tended to show thnt they had not partt·
cipatcd in his murder. (593F; 592D und D )
(2) If the various eYe witnesses were able to Identify the occuscd in the light or
the laJitern the accused could have been able to identtfY the victim. (592E)
CRtMtNAL A r PtLLATE
Jurusmcrto~ ;
Criminal Appeal No.
215 of 1970.
Appeal by ~pedal leave from the judgmer.l and order dated
the 12th May, 1970 of the Allahabad High Court Luck now D~nch at
Lucknow in Criminal Appeal Nos. 35 and 36 of 1970.
0. P. Ra11a, for the appellant.
.A. K. GupJa, for the respondents.
The Judgment oF the Court was delivered by
•
CltANDRACHUD! J.-As criminal cases go, this is an interesting ca~
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11_1 the 6Cn~e that •t ofTen for solution a riddle of muny facets. ;..n
omce many unswers rcawnably come to mind, the accused would .11Pf'(:f
to he enmlcd to the benefit of that P<:rplcxity. The monsoon nrght rt
Au~u~t 27, 1968 was dark, so dark indeed that the Sessions c~u
wb1ch sentenced li\"e of the accu~ed to death and the r(maining fi\e 10
IL
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U.P. STATE V. HAR! PRASAD (Chandrachud, J.)
589
~ A
life" imprisonment made a finding that "it is an admitted case that without light it was not possible to identify the assailants". Witnesses
usually place torches in the hands of dacoits and though the motive
of the crime in this case was not burglary, a faint attempt was made
by some of the witnesses to show that, on occasions, a few of the accused
had flashed their torches at strategic stages. But that part of the case
is clearly unworthy of belief. And so, the main question in this appeal
B
is whether a lantern was burning at the scene of offence, lantern hanging by a pole four or five feet high. Witnesses claim that they identified
the accused in the light of that lantern.
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The case is riddled with these mysteries : Why did the accused
murd,:r Vishwanath Panda, their traditional family priest with whom
th~~ were 0;1 friendly terms and who, with his mother Birja, had come
on the 27th evecing to stay with the complainant Kanahaiya BtJX
Singh as a &uest? The amwcr made by the prosecution is that it is a
sorry case of mistaken identity; the accused wanted to murder the
complainant but mistook Vishwanath for him, both being of the ~;ame
colour,
size and age. Why did the accused assault Bilja whose
hu5baad first, and after his death her son was their priest? The explana.tiOt\ offered is that the accused wanted to terrorise her lest she raised
an atarm. If the common itttention of the accused was to commit
the mruder of Kanahaiya Bux Singh why did they allow him to escape
und~r their very noses Z They were ten strollg. It is suggested that on
s<!dng the assault on Vishwanath, Kanahaiya Bux Singh e5caped into
the nearby Chhappar, along with his brother Kishan Pal Singh and
hii sister Chandrawali. They covered themselves with old clothes ·
lying in the Chhappar, but kept an opening for the eyes so as to be
able to see the incident from the beginning to the fall of the curtain.
Why was the complainant's sen· ant Ram Go pal murdered 'l No ex·
pbnation is forthcomin:. And if the complainant and his family
w~re the real tarcet, how could the complainant's brother Bhagwan
Bux Singh, his rl\Other Ram Dulari and her sister Raja Munni escap.! with no more than simple, superficial injuries? This is not to
sa,. that even if the witnesses are tn1thful, the prosecution must fail
foi· the reason that the motive ef the crime is difficult to find. For
the matter of that, it is never incumbent on t!¥ prosecution to prove
tlte motive for the crime. And often times, a motive is indicated
to heighten the probability that the offence was committed by the
person who was impelled by that motive. But, if the crime is alleged
to have been committed for a particular motive, it is relevant to irtquire
whether the pattern of the crime fits in with. the alleged motive. If
the motive, here, wu directed against Kanahaiya Bux Singh and his·
family, how strange it is tltat Kanahaiya Bux Singh his sister Chandra wah
:md his brother Kishan Pal Singh should have been allowed to escape
unscathed when they were withi11 the easy reach of the accused; and
how strange again that Bhagwan Bux, Ram Dulari and Raja Munnr
should
escape as if through a passing household scramble. The
accused. according to the prosecution, pooled their stren&th to murder
a fue~Kanahaiya Bux Singh-but murdered through mistake a friend
-Vi~.nvanath Panda-and for no apparent reason, an innocent scr-
\\\11t. Ram Gopal.
t:-G02SCfi74
590
SUPREME COURT R!POUS
[19741 2 s.c.~.
The incident leading to this appeal took place at about II · 30 p.m.
on August, 27, 1968 in the village of Kunwarpur, district Lucknow.
Kunwarpur is a tiny village consisting of but ten houses. The complainant, Thakur Kanahaiya Bux Singh, lived with his family in one
hollie, while three houses were in the occupation of five out of the
ten accused: Badlu, Manobar, Chhotey Lal, Jagannath and Dhaniram.
The remaining five belonged to neighbouring villages.
There were disputes between the complainant and one Bindra
Abir over a plot of land, which led. to proceedings under sections 107
and 117, Criminal Procedure Code. One of the accused, Manohar,
is Bindra's son, two of them are Bindra's brothers, two are his cousins
while three are his brothers-in-law. In one way or another, all the
:.ccused are connected inter se.
The complainant lived in a spacious house and had a fairly large
family. On the 27th evening, Vishwanath Panda and his mothet'
Birja arrived at the complaintant's house on one of their routine visits
to the 'jijmans'. Vishwanath's father was a family priest of the complainant and after his death, Vishwanath took up that mantle. Bilja
used to acco·mpany Vishwanath on his visits to the patrons. Jt is
of significant rdevance that Viskwanath's father and thereafter he
himself were also family priests of the accused belonging to K unwarpur.
The terrace over the colllplainant's house is divided into separ<Hc
portions .which are described in th~se pro~eedings as ~o many roofs.
On the n1ght of the 27th the cornplaulant, IllS brother K1shan Pal Singh
and his sister Chandr<l\v:,li were sleeping on the roof situated in the
north-western corner of the house. Vishwanath Panda, his mother
Birja, Ram Dualri th~ mother of the complainant, and her sister
R:~ja
Munni were sleeping on the roof situated in the north-cast corner.
on the south-west were sleeping Bhagwan Bux. a twelve-year old
broth-er of the complainant and Rnm Gopal. a servant.
The case of the pr~ecution i~ that at about I I ·30 P. 111. on Au1!mt
27, the ten accused climbed to the roof of the <Omplainanf~ house bv
pl~tcing a laddl!r .on the south-eastem side. The accused divided lh <' n ~·
selves into two groups: five of them, namely Badlu, Manohar. Chhotev
Lal, Pntti La! and hira La! went to' the place where Vishw:math
Pa·; da. Birja, Ram Dulari and Raja Munni were sleeping. This group
committed the murder of Vishwanath and caused injuries to the three
Jadie,. The other group comprising Dhani Ram, Jagannath, Daya
Shanker, .Mohan Lal and Hari Prasad went to the place where Ram
Gopal and Bhagwan
Bux Singh were sleeping. This group committed. the murder ?f Ram G?pal a~d caused inj~ries to Bhagwan
Bux Smgh, Kanaha1ya Bux Smgh, hts brother K1shan Pal Singh
and his .sister Chandrawali who were sleeping on the north-western
part of the roof escaped ~tealthily to a Chappar and concealed themselvei behind the old clothes lying therein. It is alleged tl1at a lantern
was burning near the place where Vishwanath was sleeping and-" the
accuied were identifi.-cl in the li2ht of that lantern by Kanahaiya Bux
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U.P, STATE. v. HAIU PRASAD (Chandrachud, 1.)
591
Singh, Chandrawali, Kishan Pal Singh, Birja, Raja Munni, Bhagwan
Bux Singh and Ram Dulari. These,
respectively, are prosecution
witnesses I to 5, 7 and 8.
Vishwanath received two formidable incised injuries on his head
and a long linear cut on his chest. On the person of Ram Gopal
were found 17 incised injuries, a linear cut and a contusion. Birja
received 3 incised injuries, a laceratea· wound and an abrasion. Almost
all of these were skin-deep. Ram Dulari had three incised injuries
on her person, one being muscle-deep and the other bone-deep. Raja
Munni received a muscle-deep incised injury behind her right ear.
Bhagwan Bux Singh had one incised injury on his person.
The complainant lodged the First Information Report at the
Jtaunja police station through the son of a Chaukidar at about 9 ·1 S
a.m. on the 28th. The names of all the accused are mentioned therein
together with the weapons wielded by them on the previous night.
·
The learned Sessions Judge
accepted the evidence of the eye·
wituesses and held that all of the ten accused had formed an unlawful
assembly with the common object of committing the murder of ·
Kanahaiya Bux Singh
and of causing hurt to the other members of
his family, that they committed the murder of Vishwanath Panda,
mistaking him for Kanahaiya Bux Singh and that they also committed the murder of Ram Gopal. The five accused belonging to
Kunwarpur were sentenced by the learned Judge to death while the
other five were sentenced to imprisonment for life. Varying sente.nces
were also
imposed
on the accused for the comparatively mirior
offences.
In appeals Nos. 35 and 36 of 1970 filed by the accused,
the High Court of Allahabad (Luc~now Bench) has set aside the order
of conviction and sentence and has acquitted all the accused
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State of Uttar Pradesh has filed this appeal by special leave against
that judgment. One of the accused, Putti Lal, died during the
pendency of this appeal.
The judgment of the High Court is perhaps open to the charge
that,
unconventionally, it has taken into consideration the broad
features of the case without discussing separately the evidence of each
one of the eye-witnesses. The juc1gment would have been of greater
assistance to us if the High Court had referred to the main points in
the evidence of the important witnesses, but in view of the rather
peculiar facts of the case we are not prepared to say that the method
adopted by the High Court has caused failure of justice.
The fate of the entire case depends on the question whether a
lantern was burning near the place where Vishwanath Panda was
sleeping. It is in the light of that lantern that the several witnesses
are alleged to have identified the respondent. Having considered the
evidence of the various witnesses we are of the view that the High
Court was right in coming to the conclusion that the existence of the
lantern is open to grave doubt.
The respondent had no motive whatsoever for committing the
murder of Vishwanath or for causing injuries to his mother Birja.
592
SUPREME COURT REPORTS
[1974] 2 s.c.R.
Vishwanath's father, . and after his death Vishwanath himself, was
the priest. of the group of accused who committed his murder. It
is said that Vishwanath was murdered through an error as the accused
who assaulted him mistook him for the complainant, Kanahaiya Dux
Singh. If the lantern was burning just near the place where Vishwanath was sleeping, it is difficult to appreciate how such a mistake could
have been committed. It is urged that Vishwanath and the complainant were of the same age and complexion and since Vishwanaths' face was away from the lantern, the accused must have mistaken
him for the complainant. Assuming for the sake of argument that
such a mistake was initially committed, there is no reason why the
fi\'e accused should continue to assault Vishwanath after they had
discovered their mistake. Birja has stated in her evidence that she
woke up immediately after the first blow was given to Vishwanath and
she :tsked the accused imploringly as to why they were beating their
own Panda. Birja says that thereafter the five accused not only continued to assault Vishwanath but they also assualted her, knocking
out her teeth in the process. This, is our opinion, dearly shows that
Vishwanath was not assaulted through an error or an oversight. The·
accused evidently had no motive to assault him which tends to show
that they had not participated in the murder of Vishwanath.
We also find it difficult to believe that though a lantern was
burning just near the place where Vishwanath was sleeping, the accused were unable to identify him. They knew Vishwanath intimately and it is highly unlikely that they would commit a mistake
of such a grave nature. Indeed, if the various eye-witnesses were
able to identify the accused in the light of the lantern, the accused
should have been able to identify Vishwanath.
The case of the prosecution is that the real target of the accused
was the complainant Kanahaiya Bux Singh. If that be so it seems to
us surprising that though he was sleeping on one of the roofs, none
of the accused should have made any effort to follow him into
Chappar or to trace him in any other part of the house after Vishwanath and Ram Gopal were done to death. Kanahaiya Bux Singh
his brother Kishan Pal Singh and his sister Chandrawali have told
a story which strikes us as highly imaginative. All the three claim
that they
walked into the Chappar, covered themselves with old
clothes, kept their eyes uncovered and saw the entire incident through
small slits. If at all the complainant and the other two persons were
sleeping on the roof they must have run away to a safe distance. But
the greater probability is that this group was sleeping on the ground
floor of the house and not on the roof at all. Kanahaiya Bux Sin!h's
wife,
his daughter and Chandrawali's children were admittedly
sleeping on the ground floor. That eliminates the possibility that
the
incident was witnessed by Kanahaiya Bux Singh, Chandrawali
and Kishan Pal Singh.
Learned counsel for the State has placed great reliance
on
e,·idellce of Vishwanath's mother Birja. He contends that Birja is
an independent witness, that she has no motive for implicating the
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U.P. STATE V. HARI PRASAD (Chandrachud, /.)
593
accused falsely and that her evide;1ce in regard to the identification
must be accepte~ as true. Birja undoubtedly is an independent witness
but if there was no lantern on the roof, she could not have possibly
identified the accused. The judgement of the learned Sessions Judge
contains a statement that it was an admitted pqsition that if there
was no lantern burning, it was not possible to identify the E'.ssai!ants.
It seems that on the next morning, the large crowed of neighbours .
which gathered at the scene of offence ventured into the ust1al specula·
tive guesses and Birja, having lost her son, readily believed that what
was guessed was true. That explains why Birja persuaded hereself
to say that Kanahaiyn. Bux Singh, Chandrawali and Kishnn Pal Sio,gh
were sleeping on the roof though, as indicated above, the greater
probability is that they were sleeping on the ground floor.
It is important ip this connection that the First Informatiotl Report
contains a statement that Birju Pasi, Ganeshi Pasi and several other~
had responded to the alarm raised by the members of the complainant's family. In the Sessions Court the complainant stated that immediately after the occurrence, Birju and Ganeshi came to his house and
that he had narrated to them what. had happened. None of these
persons has been examined by the prosecution and no reason was
shown as to why they were not examined.
Learned counsel for the State argued that it was open to us to
examine the evidence apart from the question whether Vishwanat~
was assaulted through mistaken identity. We are unable to accept
this
argum~nt. The very foundation· of the prosecmion case is that
the accused had a motive to commit the murder of the complainant,
that they mistook Vishwanath for the 'complainant and that Vishwnnath was murdered as a result of this unfortunate mistake. It is
not open to the prosecution to ask the court to discard the \'ery
substratum of their care and to construct a new theory founded on
a hypothesis presented for the first time before us.
We are therefore in agreement with the view taken by the High
Court that the occurrence took place under cover of darkness and
that in the absence of auy light, none oj the prosecution \vitnesses
could have identified the culprits.
We therefore confirm the order
of acquittal under which the accused have been given the benefit of
doubt and dismiss this appeal. The bail bonds shall be cancelled and
if any of the accused are in jail they shall be set at liberty.
P.B.R.
Appeal dismissed.