# BALAK RAM .ETC v. THE STATE OF U.P. August 16, '1974

- **Citation:** [1975] 1 S.C.R. 753
- **Court:** Supreme Court of India
- **Decided:** 1975
- **Case number:** Criminal Appeal No. 72 of 1973
- **Bench:** H. R. Khanna Andy. V. Chandrachud
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/balak-ram-etc-v-the-state-of-u-p-august-16-1974-6245
- **Pages:** 21

## Headnote

App~al against acquittal-two views o{ the evider.ce uasonably pos.S:h{eHigh Court, wh~th~r justified in interfering with th~ order of acquittal passed
by the trial Court.
· .
.
Criminal Trial-Material
witn~sses, non-aamination of-Duty nj the
· prosecution-Prdsecution not to rely on insufficient data for non"t!xamining oj
material witness~s.
.
·
Criminal Trial-Evidence of prosecution witnesses whose statements are
recorded under sec. 164 Cr.P.C.~Appreciation ·of Jheir
evidenc~urt to
approach their evidence with caution.
·
Constitution of India, 1950, Artil:le ·13&-eoncurr~nt findin:s
of
fa~t
S!ipreme Court, when can re-appraise evidence.
Code of Criminal Procedure--section 314--Rejercnce for confirmation of
D
the death sentence-Duty of the High Court-High Court to examine for itstl/
the entire evidence indepen4~ntly of Sessions Court.
F
II
Two. persons,
Tribeni · Sahai and Radhey were shot de-ad in the town
of Datagani. District Budaun. ' The four appellants were tried along with two
. others by the learned Sessions Judge, Budaun, for various offences in connection with the incident. Balak Ram was coqvicted under sec. 302 IPC and
sentenced to death. He was also convicted and ~entenced under sec. 337
read with sec. 149 for causing i_njuries to Jhilmili and Ram Prakash and under
sec. 148 IPC. The other five were acquitted of all the charges. Sentence of
. death imposed on Balak Ram was confirmed by the High Court. But in the
· appeal filed bv the State against the order of acquittal passed by the Sessions
Court, the . High Court confirmed the acquittal of Kailash,
but convicted
Nathoo, Dr. R. P. Kohli· and Mohd •. Sayeed ·Khan and Banney Khan under
ieetions 302 and 307 read with sec. 149. It further convicted Nathoo and
·Dr. Kohli under section 148 and Banney Khan under section-147 of the Penal
Code.· The three accused have been sentenced by the High Court to imprisonment for life for their participation in the murder of Tribeni S.a}lai and Radhey
and concurrently to ten years' rigorous imprisonment for ··causin~ injuries to
Jhilmili and Ram Prakash. Balak Ram. Nathc-o,. Dr. Kohli and Banney Khan
. have filed four separate appeal$ by special leave of this Court.
The prosecution case was that at about 9-15 p.m. on May the 27 the six
accused along with 15 or 20 of their followers went about canvassing for the
candidates put up by the Congress (0). A little later, they went southwards
· through a lane which leads to the house of the deceased Tribeni Sahai. He was
· havin_g- an after-dinner stroll with Radhey and as he reached the inter-section of
· a cement road passing by his house and the line by which the processionists
were 'proceeding, the appellants who were leading the processions startf'd raisiric:t
. offensive slogans against him. Tribeni Sahai protested and a wrangle ensued.
· While hot word3 were being exchanged, Dr. Kohli, Banney Khan and Pearey
Mian exhorted Balak Ram to fire.
Balak Ram stepped out, stood on the
raised ground to the east of the lane and fired a shot at Tribeni Sahai with a
licensed pistol which he was carrying. Tribeni Sahai had sensed dan '!,er and
was trying to escape but he was hit by a bullet on the right scaPular recion..
Radhev who was a few paces behind Tribeni Sahai· ran forward to protect
him when Balak Ram, Nathoo and Dr. Kohli fired four or five shots. Radhey
received a pistol injury on the left back:. Jhilmili and Ram Prakash who live
2 -Ll92SupCI {75
754
SUPREME COURT REPORTS
[1975] 1 S.C.R.
nearby came running in protes( but they also received. injuries as a. result of
the shots fired by Batak Ram, Nathoo and Dr. Kohh..
Nat~oo, ltke Balak
Ram was carrying a pistol while Dr. Ko~Ii was .armed Wlth a licensed revolver.
Jhil~ili received an injury on his left. th1gh w~lle Ram Prakash was found to
have a superficial burn on the right side of h•s abdomen.
According to the prosecution, Rajendra Kumar Misra gave information of
the incident at 4-45 p.m. at the Police Station which js about two fur

## Text

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753
BALAK RAM .ETC.
v.
THE STATE OF U.P.
August 16, '1974
[H. R. KHANNA ANDY. V. CHANDRACHUD; JJ.]
App~al against acquittal-two views o{ the evider.ce uasonably pos.S:h{eHigh Court, wh~th~r justified in interfering with th~ order of acquittal passed
by the trial Court.
· .
.
Criminal Trial-Material
witn~sses, non-aamination of-Duty nj the
· prosecution-Prdsecution not to rely on insufficient data for non"t!xamining oj
material witness~s.
.
·
Criminal Trial-Evidence of prosecution witnesses whose statements are
recorded under sec. 164 Cr.P.C.~Appreciation ·of Jheir
evidenc~urt to
approach their evidence with caution.
·
Constitution of India, 1950, Artil:le ·13&-eoncurr~nt findin:s
of
fa~t
S!ipreme Court, when can re-appraise evidence.
Code of Criminal Procedure--section 314--Rejercnce for confirmation of
D
the death sentence-Duty of the High Court-High Court to examine for itstl/
the entire evidence indepen4~ntly of Sessions Court.
F
II
Two. persons,
Tribeni · Sahai and Radhey were shot de-ad in the town
of Datagani. District Budaun. ' The four appellants were tried along with two
. others by the learned Sessions Judge, Budaun, for various offences in connection with the incident. Balak Ram was coqvicted under sec. 302 IPC and
sentenced to death. He was also convicted and ~entenced under sec. 337
read with sec. 149 for causing i_njuries to Jhilmili and Ram Prakash and under
sec. 148 IPC. The other five were acquitted of all the charges. Sentence of
. death imposed on Balak Ram was confirmed by the High Court. But in the
· appeal filed bv the State against the order of acquittal passed by the Sessions
Court, the . High Court confirmed the acquittal of Kailash,
but convicted
Nathoo, Dr. R. P. Kohli· and Mohd •. Sayeed ·Khan and Banney Khan under
ieetions 302 and 307 read with sec. 149. It further convicted Nathoo and
·Dr. Kohli under section 148 and Banney Khan under section-147 of the Penal
Code.· The three accused have been sentenced by the High Court to imprisonment for life for their participation in the murder of Tribeni S.a}lai and Radhey
and concurrently to ten years' rigorous imprisonment for ··causin~ injuries to
Jhilmili and Ram Prakash. Balak Ram. Nathc-o,. Dr. Kohli and Banney Khan
. have filed four separate appeal$ by special leave of this Court.
The prosecution case was that at about 9-15 p.m. on May the 27 the six
accused along with 15 or 20 of their followers went about canvassing for the
candidates put up by the Congress (0). A little later, they went southwards
· through a lane which leads to the house of the deceased Tribeni Sahai. He was
· havin_g- an after-dinner stroll with Radhey and as he reached the inter-section of
· a cement road passing by his house and the line by which the processionists
were 'proceeding, the appellants who were leading the processions startf'd raisiric:t
. offensive slogans against him. Tribeni Sahai protested and a wrangle ensued.
· While hot word3 were being exchanged, Dr. Kohli, Banney Khan and Pearey
Mian exhorted Balak Ram to fire.
Balak Ram stepped out, stood on the
raised ground to the east of the lane and fired a shot at Tribeni Sahai with a
licensed pistol which he was carrying. Tribeni Sahai had sensed dan '!,er and
was trying to escape but he was hit by a bullet on the right scaPular recion..
Radhev who was a few paces behind Tribeni Sahai· ran forward to protect
him when Balak Ram, Nathoo and Dr. Kohli fired four or five shots. Radhey
received a pistol injury on the left back:. Jhilmili and Ram Prakash who live
2 -Ll92SupCI {75
754
SUPREME COURT REPORTS
[1975] 1 S.C.R.
nearby came running in protes( but they also received. injuries as a. result of
the shots fired by Batak Ram, Nathoo and Dr. Kohh..
Nat~oo, ltke Balak
Ram was carrying a pistol while Dr. Ko~Ii was .armed Wlth a licensed revolver.
Jhil~ili received an injury on his left. th1gh w~lle Ram Prakash was found to
have a superficial burn on the right side of h•s abdomen.
According to the prosecution, Rajendra Kumar Misra gave information of
the incident at 4-45 p.m. at the Police Station which js about two furloniS
away. The Station House Officer. Yogendra Sharma, as.ked a head constable
to record the First Information Report. The S.H.O. signed the report and
hurried to the scene of occurrence. The S.H.O. claims to have taken down
the dying declarat io~ of Triben! Sahai. in the ~S!! diary which he had taken
with him while leavmg the pohce statwn. This 1s the second of the
thret
dyin2 declarations. The first one is said to have been m~de to Dharaf!l Pal,
the rival candidate of the appellant Balak Ram.
The th•rd one was JO the
Budaun Hospital before the Sub-Divisional Magistrate. These four appeal!
have been filed by special leave of this Court.
It was contended (i) the- High Court had no sufficient reasons for interfering with the order of acquittal passed by the Sessions Court in favour of
Nathoo. Dr. Kohli and Banney Khan and (ii) the High Court was not justified
in upholding the conviction of Balak Ram and the $entence of death i_mposed
on him by the Sessions Court.
Dismissing the appeal 0f Balak Ram and ailowing the other three appeals,
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HELD.:
(i) (f the High Court has set aside an order of acquittal the
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Supreme Court in an appeal under .Art. 136 will examine the evidence only
if the High Court has failed to apply correctly the principles governing appeals
.2gainst acquittal. The powers of the High Court are ll'S full and wide
in
:appeals against acquittal as in appeals against conviction, but, amongst other
things, if two views of the evidence are reasonably possible the High Court
ought not to interfere with the order of acquittal p~ssed by the trial court.
[762A-C]
Ram Ja~: a~i Ors. v. The State of U.P. (1974) 4 S.C.C. 201 relied on.
An examination of the various items of evidence on record discloses that
the conclusion to which the learned Sessions· Judge came was a reasonn bte ronelusion to come to. It cannot be denied that two views of the evidence are
reasonably possible in regard to the participation of Nathoo, Dr. Kohli and
Banney Khan. The High Court, therefore. oul!:ht not to have interfered with
the judgment of the Sessions Court in their favour.
[770F-G]
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(ii) In the F.I.R. Rajendra Kumar mentioned that Loki, Ganga Ram and
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Aryendra had seen the incident.
Neither Ganga Ram nor Loki was examined
by the prosecution and the learned public prosecutor stated that Loki had
been won over by the defence.
Such a bold assertion, unsupported bv any
data, is insufficient to absolve the pro-se:ution of its duty to examine witnesses
whose evidence is necessary for unfdlding its case.
[764F-H]
(iii) The Statements of three prosecution witnesses were recorded under 164
Cr.P.C. soon after the incident. The Investigating Officer said that lle got the
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statements recorded by way of precaution. That could be true and it would
be wrong to find fault with him merely because he got the statements of these
Witnesses recorded under sec. 164. Nor can the evidence of a witne<;s be
discarded ~or the mere reason that his statement was recorded under sec. 164.
But the H1gh Court overlooked that tbe eviden~ of these witness must
be
app10ached with cauFon.
Such witnes-ses feel tied to their previous statf'ments
given on oath and have but a theoretical freedom to depart from the earlier
yersion. A prosecution for periurv could be the price of that freedom. It
Is open to the court to accept the evidence of a witness whose statement was
H
~cor.ded un<ier ~ec. 164 but the salient rule oJ caution must alwavs be borne
m ~md. That. IS a!l the more neces~arv when almost all the eye-witnesses are
5UbJected to th1s tymg-up process.
[768B-E]
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BALAK RAM v. U.P. STATE (Chandrachud, J.)
755
(iv) The powers of the Supreme Court under Article 136. o~ the Const_itution
are wide but in criminal appeals the Supreme Court does not mterfere With the
concurrent findings of fact save in exceptional circumstances. Normally tho
High Court is- a final court of appeal and the Supreme Court is ~JnlY a Co~rt
of special jurisdiction. This Court would not, therefore, re-appraise the eVId•
ence unless, for example the forms of legal process are disregarded or princi-
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pies of natural justice are violated or substantia] and grave injustice has other•
wise resulted.
[761G-H]
Ramabhupala R~ddy and Ois. v. The State of A.ndhra Pradesh Al.R. 1971
SC 460 relied on. -
(v} Balak Ram examined two witnesses. D.W. 7 and D.W. 8 to establish
his plea of alibi but the evidence was rightly rejected by. the trial court. It is
in the least degr<:e likely that Baiak Ram who was contesting the election for
Chairmanship of the Committee wocld be away from the hubbub of politics
on the eve of elections. All the same. the High Court ought to have considered that evidence for what it was worth. In a reference for confirmation
of the death sentence under sec. 374 Cr.P.C. the High Court must examine
the entire evidence for itself, independent of the Sessions Court. [772G-HJ
Bhup~ndra Singh· v. Th~ State of Punjab fl968] 3 SCR 404 and Jumma11
and Or.r. v. Th~ Stat~ of Punjab AIR 1957 SC 469.
CRIMINAL APPELLATE JURISDICTION:
Criminal Appeal No. 72
of 1973.
Appeal by Special Leave from the Judgment and Order dated the
22nd December 1972 of the Allahabad High Court in Crl. A. No. 895
of 1972 and Referred No. '82 of 1972 and
·
·
Criminal Appeal Nos. 25, 34-35 of 1973.
Appeal from the Judgment and Order dated the 22nd December,
1972 of~ Allahabad High Court in Govt. Appeal No. 1448 of
1972.
Frank Anthony, K. C. Agarwala, M. L: Srivastava and E. C.
Agarwala for the appellant in Crl. A. 72 and 35j73.
D. P. Uniyal, N. K. Johri and 0. P. Rana for the respondent in
Crl. A. 72j73,
.
M. C. Bhandari, P. H. Parekh and Mrs. S. Bhandare for the appellant in Crl. A. No. 34 of ·1973 •.
0. P. Rana for the respondent in Crl. A. Nos. 25, 34-35[73.
s. K. Bisaria for the appellant in Crl. A. No. 25f13 ..
The Judgment of the Court was delivered by
CIIANDRACHUD, J. On May 27, 1971 two persons caJJed Tribeni
Sahai and Radhey were shot dead in the tcwn of Dataganj, District
Budaun. The four appellants: Balak Ram, Nathoo, Dr. R. P. Kohli
and Mohd. Sayeed Khan @ Banney Khan were tried along with two ·
others· by the learned Sessions Judge, Budaun, for varicllls offences in
connection with that incident. Balak Ram was convicted under sec·
tion 302 of the Penal Code and was sentenced to death. He was also
convicted and sentenced under section 337 read with section 149 for
causin!! iniuries to Jhiimiii and Ram Prakash and under section 148,
Penal Code. The learned judge acquitted the other1ive accused of aU
756 .
SUPREME COURT REPORTS
[1975] 1 S.C.R.
the charges.
Out of 1 these five, we are not now concerned with Kailash
whose acquittal is not under challenge and with Ahmed Sayeed Khan
alias Pearey Miin who died during the pendency of the proceedings ;n
the High Court of Allahabad.
The High Court by its Judgment dated December 22, 1972 confirmed the conviction of Balak Ram and the sentence of death imposed
on him under section 302 as also his conviction under section 148.
The High Court altered his conviction under section 337 read. with
sectiqn 149 to one under section 307 read with section 149 of the
Penal Code.
-
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In an appeal against the order of acquittal passed by the Sessions
Court, the High Court confirmed the acquittal of Kailash, but convicted
Nathoo, Dr. R. P. Kohli and Mohd. Sayeed Khan @ Banney Khan
under section~ 302 and 307 read with section 149. It further convicted Nathoo and Dr. Kohli under section 148 and Banney Khan
under section 14 7 of the Penal Code. The three accused have been
.sentenced by the High Court to imprisonment for life for their participation in the murder of Tribeni Sahai and Radhey and concurrently to
ten years' rigorous imprisonment for causing injuries tq Jhilmili and
Ram Prakash. Balak Ram, Nathoo, Dr. Kohli and Banney Khan have
filed four separate appeals by special leave of this Court.
The incident leading to the murder of Tribeni Sahai and Radhey
arose, indisputably, out of political rivalry, the parties involved being
the Congress (R), Congress (0) and the Bhartiya Jan Sangh. Tribeni
Sahai was a sitting Member of the U.P. Legislative Assembly, elected
on the Congress (R) ticket while the other victim Radhey is said to
have been his bodyguard. Balak Ram, Nathoo and Banney Khan be·
longed to the Congress (0) while Dr. R. P. Kohli was the local President of the Jan Sangh.
The elections to the Town Area Committee of Dataganj
were
&cheduled to be held on May 30, 1971. Balak Ram was contesting
the election to the Chairmanship of the Committee as a nominee cl
Congress (0). Dharam Pal, the rival candidate for Chairmanship
wai a nominee of Congress (R). Nathoo and Banney Khan were contesting the election for the membership of the Committee on the ticket
of Congress (0). The Jan Sangh seems to have decided to support
the candidature of Balak Ram and others who were put up by
Congress ( 0) .
The election campaign launched by the rival political parties led to
great acrimony.
The District Magistrate c!f Badaun, therefore,
promulgated on May 24, 1971 an order under section 144 of the Code·of
Criminal Procedure, prohibiting the assembly of more than five persons
and carrying of arms in public. If defiance of this order, Balak Ram
led a procession c~ some 25 presons at about 6.30 p.m. on May 27,
1971. While passing by the house of the rival candidate Dharam
Pal, the processionists raised various slogans whereuoon Dharam Pal
formed a procession of his own follcM'ers.
The two processions stood
facing each other at the crossing of a road but the Station House Officer Yogendra Sharma persuaded both the parties to disperse.
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BALAK RAM V. U.P. STATE (Chandrachud, J.)
7 57
The case of the prosecution in regard to the main incident leading
to the double murder may be stated thus: At about 9.15 p.m. on
May 27 the six accused along with 15 oi 20 of their followers went
about canvassmg tor the canoidares put up by the Congress (0). A
little lat:!r, they went southwards through a lane which leads to the
house of the deceased Tribeni Sahai. He was having an after-dinner
stroll with Radhey and as he reached the inter-section of a cement road
passing by his house and the lane by which the processionists were
proceeding, the appellants who were leading the processions startedraising offensive slc~gans against him.
Tribeni Sahai protested and a
wrangle ensued. While hot words were being exchanged, Dr. Ko!:lli,
Banney Khan and Pearey Mian exhorted Balak Ram to fire.
llalak
Ram stepped out, stood on the raised ground to the east of the lane
and fired a shot at Tribeni Sahai with a licensed pistol which he was
carrying. Tribeni Sabai had sensed danger and was trying to escape
but he was hit by a bullet on the right scapular region. Radhey \\'ho
was a few paces behind Tribeni Sahai ran forward to protect him when
Balak Ram. Nathoo and Dr. Kohli fired four or five shots. Radhey
received a pistol injury on the left back. Jhilmili and Ram Prakash
who live nearby came running in protest but the'y also received injuries
as a result of the shots fired by Balak Ram, Nathqo and Dr. Kohli . .
Nathoo, like Balak Ram, was carrying a pistol while Dr. Kohli was
armed with a licensed revolver. Jhilmili received an injury on his left
thigh while Ram Prakash was found to have a superficial burn on the
right side of his abdomen.
According to the prosecuticp, Rajendra Kumar Misra gave information o'f the incident at 9.45 p.m. at the police station which is about
two furlongs away. Rajendra Kumar Misra is the brother-in-law of
Radhey Shyam Sharma who is the brother of the deceased Tribeni
Sahai. Radhey Shyam was, at the material time, the Deputy Inspector
General ctf Police and was stationed at Lucknow. The Station House
Officer, Y ogendra Sharma, asked a head constable to reoord the First
Information Report. The S.H.O. signed the report and hurried to
the scene of occurrence. Rajendra Kumar stayed behind at the police
station in order t~ obtain a copy of the First Information Report.
Dharam Pal, who was the rival candidate of the appellant Balak
Ram for the Chairmanship of the Town Area Committee, went to the
scene of occurrence on hearing the pistol-fire. Tribeni Sahai is alleged
to have tdd him that Balak Ram had fired a shot at the instigation of
Banncy Khan, .Pearey Mian and Dr. Kohli. In a short while, the motor
cars of Dharam Pal and Rajendra Kumar Misra arrived at the place
where Tribeni Sahai and Radhey were lying injured.
Tribeni Sahai
was put in the car c& Rajendra Kumar Misra and was acoompanied by
h;s wife and daughter. Radhey was put in the other car but before
the two cars left on their way to Budaun, Yogendra Sharma the S.H.O.
arrived at the scene. tie dispersed the crowd which had surrom1ded
the two cars. He tried to interrogate Radhey but failed to get any response. as Radhey was unconscious. He then went to the ether car and
the allegation is that he was told by Tribeni Sahai that Balak Ram bad
758
SUPREME COURT REPORTS
[1975] 1 S.C.R.
fired a shot at the instigation of Banney Khan, Pearey Mian and Dr.
Kohli. The Station House Officer claims to have taken down the dy·
ing declaration in the case diary which he had taken with him while
leaving the police static111.
The tow cars reached the Civil Hospital at Budaun at 11.30 p.m.
Tbe District Magistrate and the Civil Surgeon who bad in the mc:lnwhile received information about the incident were waiting for the cars
at the hospital. Radhey, on being taken out of the car, was declared
dead while Trii)Cni Sahai was taken to the Emergency Ward. As his
condition was fc!Und to be precarious the Sub-Diviskmal Magistrate,
Sada Ram, was sent for in order to .record the dying declaration.
On
his arrival, Sada Ram recorded Tribeni Sahai's dying declaration, the
third in the series. Tribeni Sahai was thereafter taken to the Mission
Hospital at Barielly but he: succumbed to his injury at 8.30 p.m. on the
23.
In the meanwhile, Yogendra Sharma had commenced the investigation. He went to the house of Tribeni Sahai and informed the Superintendent of Police, Budaun, on trunk telephone about the occurrence.
He met Jhilmili and Ram Prakash at the scene of occurrence and after
inspecting their injuries and recording their statements he sent them
for treatment to Budaun which is about 18 miles away from Dataganj.
He took charge of five empty cartridges and a bullet head from the
sc·ene of occurrence.
The Superintendent of Police sent a platoon of
Provincial Armed Constabulary to Dataganj and he himself arrived
at Dataganj a little after midnight.
Dr. Kohli's house is alleged to have been searched at night but he
cc1uid not be found nor was any incriminating article discovered. At
about 2.30 a.m. the same night, the Investigating Officer is alleged to
have arrested Dr. Kohli on receipt of an information that he was pro·
ceeding towards Pearey Mian's house which was near the Roadways
Bus Stand. Dr. Kohli was taken to his house and it is alleged that
his wife produced his licensed revolver frcro inside the Niwar of a cot.
The Investigating Officer opened the chamber crt: the revolver and found
that it was loaded with three live cartridges and was emanating the
smell of a freshly fired bullet. Banney Khan was arrested at 5 a.m. on
the 28th Balak Ram's house was searched but he could not be found.
On the night between the 27th and 28th May, eleven persons were
arrested by the Investigating Officer apart from Dr. Kohli,
Janney
Khan and Kailash.
Those persons wen; arrested on information given
by one Abdul Rruhman that they were_ involved in a conspiracy to
commit the murder of Tribeni Sahai.
Balak Ram, N athctJ and Pearey Mian surrendered respectively on
29th May, 7th June and 11th June. On 1st June Balak Ram's father
surrendered in the court of the Judicial Magistrate a licensed automatic
Pistol belonging to Balak Ram.
The post-mortem examination on Radhey was performed by Dr.
A. S. Gupta on 28th May. He found a circular lacerated wound
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BALAK RAM V. U.P. STATE (Cftandrachud, J.)
7 59
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of the axillary pit and a confusion on the right side of the chest. Dr.
Gupta recovered a bullet from Radhey's body.
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The post-mortem on the dead body of Tribeni Sahai was performed
by Dr. S. Mitra qn 29th May. He found on the dead body a gun
shot wound lC x 1C chest cavity deep below the right scapular region.
The injuries of Jhilmili and Ram Prakash were examined by Dr.
R. C. Bansal of the District Hospital, Budaun on 28th May. He
found on the person of Jhilmili a fire-arm wound of entry on the 1eft
thigh and a wound of exit on the same thigh. On the person of Ram
Prakash was found a superficial burn 1" _x 1" on the right side of the
abdomen.
The licensed revolver of Dr. Kohli, the autclmatic pistol of Balak
Rilm, the bullet which was recovered from the dead body of Radhey
and the five empty cartridges as well as the bullet head recovered from
the scene of occurrence were sent by the Investigating Offic..;r for
ballistic tests to the Scientific Section C.I.D., Lucknow. The ballistic
expert, Shyam Narain, opined that the bullet recovered from Radhey's
body was fired from Balak Ram's pistol but that the bullet seized from
the scene of occurrence was fired frcm some other weapon.
The defence of the appellants, broadly, was that they were falsely
implicated on account of political rivalry.
They contended that the
witntsses had given false evidence against them either because they
were friends or relatives of Tribeni Sahai or because of the pressure
exerted on them by the police at the instance, partly, of Tribcni Sahai's
brother Radhey Shyam, who was the Deputy Inspector General of
Police and a Member of the Vigilance Commission, U.P.
Balak Ram pleaded alibi saying that he was at Lucknow from
May 25. He led evidence in support qf his plea of alibi, Nathoo admitted that he was related to Balak Ram but contended that he was
contesting the election to the membership of the Town Area Committee as an independent candidate. He also pleaded alibi saying that
he had gone to Chandausi on the morning of 27th and returned to
Dataganj CIIl May 29. He stated that he wanted to surrender earlier
but being informed that Radhey Shyam, D.I.G., had issued orders for
shooting the accused, if found, he could not surrender till June 7. Dr.
Kohli admitted that he was the President of the local unit of the Jan
Sangh, but denied that there was any personal enmity between him
and Tribeni Sahai. He denied that he was arrested at about 3.30 a.m.
on the 28th May or in the circumstances alleged by the Investigating
Officer Clf that his revolver was handed over by his- wife. He contended that while he was clc~ing his clinic at about 10.30 p.m. on the
27th he was taken by a constable to the police station on the pretext
that he was wanted by the Station House Officer. While he was in
detention at the police station, the Station House Officer went to his
house and obtained his revolver from his wife. According to Dr.
Kohli, Dharma Pal, Raiendra Kumar Misra and two lawyers, Nawat
Kishore and Sultain Ahmed came to the police station and had a long
760
SUPREME COURT REPORTS
· [1975) 1 S.C.R.
meeting with the Investigating Officer at about 3 p.m. on the 28th.
Thos·~ under arrest were thereafter sent to Budaun.
·
The tW;) broth~rs Banney Khan and Pearcy Mian admitted that a
civil litigation was pending between them and Tribeni Sahai on the
date of occurrence. Banney Khan admitted that he was a candidate
for election to the membership of the Town Area Committee as a
nominee of Congress (0). He stated that he was the Vice-Chairman
of the Town Area Committee since 1937 and claimed that cverv candidate he had supp::nted during the past many years for the Chairmanship of the Committee had been successful. He alleged that he
was implicated at the instance of Dharam Pal who was contesting the
Chairmanship on the ticket of Congress (R). Like Dr. Kohli he also
contended that he was sent to Budaun at about 3.30 p.m. on the 28th.
Each of the appellants denied knowledge of the order passed by the
District Magistrate under section 144, Criminal Procedure Code and
each one denied his presence in the procession which was taken out
at about 6.30 p.m. on the 27th. Their presence in the later procession
and their participation in the incident under inquiry was of course
denied by them.
The learned Sessi•ans Judge, Budaun, came to the cc,:tclusion that
none of the eye-witnesses including the injured Jhilmili and Ram
Prakash could be relied upon unless independent corroboration was
availab!e to their testimony. The learned Judge took the same view
about the dying declarations alleged to have been made by Tribeni
S.ahai.
Except for Balak Ram, the other accused were acquitted by
the J~arned Judge as independent corroboration was not available to
the evidence of the witnesses in regard to the part played by those
accused. In so far as Balak Ram is concerned, the learned Judge convicted him fer. the murder of Tribeni Sahai and Radhey on the view
that the evidence of the eye-witnesses and the dying declarations of
Tribeni Sahai were corroborated by the opinion of the Ballistic Expert,
Shyam Narain, who stated that the bullet recovered from the dead
body 'of Radhey was fired from Balak Ram's pistoL The learned Judge
further held that it was nc1t clear as to who else were members of the
unlawful assembly responsible for the murders of Tribeni Sahai and
Radhey but since it was clear that there was in fact
an unlawful
assembly, Balak Ram was liable to be convicted under section 148,
Penal Code. The learned Judge acquitted Balak Ram of the charge
under section 307 read with section 149 in regard to the injuries received by Jhilmili and Ram Prakash but he convicted him under section 337 read with sec6on 149 on the ground that his reckless act in
firing from his pistol had endangered human life and had caused hurt
to Jhilmili and Ram Prakash.
Apart from the injured Jhilmili (P.W. 1) and Ram Prakash
(P.W. 11 ), the prosecution examined Rajendra Kumar Misra (P.W.
13) and Aryendra Nath (P.W. 19) as eye-witnesses ·to the occurrence.
Rajendra Kumar Misra who lodged the First lnformaticlll Report at
the Dataganj police station is a close relative of the deceased Tribeni
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BALAK RAM V, U.P. STATE (Chandrachud, J.)
761
Sahai and. was. at the relevant time the President of the local unit of
Congress (R). The High Court therefore felt that he could not be
regarded as an "entirely independent witness'. But his evidence was
accepted by the High Court for the reason that it was "corroborat~d by
the first information report lodged by him promptly". The prompt
lodgment of the F.I.R. was in turn held to be corroborated by the evidence of Head Constable Jai Prakash (P.W. 2) and the Investigating
Officer Yogendra Sharma (P.W. 24). The High CCiurt accepted the
evidence of Jhilmili and Ram Prakash who, according to it, were in·
dependent witnesses. The two witnesses were said to corroborate eachother individually and together they were held to
corroborate the
evidence of Rajendra Kumar Misra. Aryendra Nath is the sister's son
of Dharam Pal who, on the ticket of Congress (R) was contesting the
election to the Chairmanship of the Town Area Committee. The High
Court therefore held that he could not be considered as an independent
witness but his evidence was accepted as it was in "full accord" with
that of Jhilmili and Ram Prakash. Finally, the High Court accepted
the three dying declarations of Tribeni Sahai as true and voluntary
observing that they provided full corroboration to the testimony of
Jhilmili, Ram Prakash and Aryendra Nath. In the result the High
Court accepted the prosecution case in its entirety except in regard to
Kailash and convicted Balak Ram, Nathoo, Dr. Kohli and Banney
Khan as mentioned earlier.
Broadly, the two questions which
arise for
consideration
are
whether the High Court was justified in upholding the convicticn of
Balak Ram and the sentence of death imposed on him by the Sessions
Court and secondly whether the High Court had good and sufficient
reasons for mter'fering with the order of acquittal passed by the
Sessions Court in favour of Nathoo, Dr. Kohli and Banney Khan.
Our approach to these two questio0ns has to be basically different because whereas in regard to Balak Ram there is a concurrent finding of
fact that he was responsible for committing the murders of Tribeni
Sahai and Radhey and for causing injuries to Jhilmili and Ram
Prakash, in regard to the other three appellants the two courts have
differed, the High Court h~ving interfered with the order of acquittal
passed by the trial court in their favour.
The powers of the Supreme Court under Article 136 are wide but
in criminal app~a1s this Court does not interfere with the concurrent
findings of fact save in exceptional circumstances.
Jn Ramabhupa{a
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Reddy and Ors. v. The State of Andhra Pradesh,(!) it was observed
that it was best to bear in mind that normally the High Court is a
final court of appeal and
the Supreme Court is only a Court cf
special jurisdiction. This Court would not therefore re-appraise the
evidence unless, for example, the forms of legal process are {iisregarded or principles of natural justice are violated
or substantial
and
grave injustice has otherwise resulted.
In dealinQ: with the appeal
H
·filed by Balak Ram we shall have to keep this position in mind.
(1) A.I.R. 1971 S.C. 460.
762
SUPREME COURT REPORTS
[1975) 1 S.C.R.
In so far as Nathoo, Dr. Kohli and Banney Khan arc concerned
the question {or consideration is whether the High Court was justified
in interfering with the order of acquittal passed in their favour by
the Sessions Court.
In Ram Jag and Ors. v. The State of U.P.(1)
this ·court heltl after a review of previous authorities that if the High
Court has set aside an order of acquittal the Supreme Court in an
appeal under Article 136 will examine the evidence only if the High
Court has failed to apply correctly the principles governing appeals
against acquittal.
It was held in that case that the powers of the
High OJurt are as full and wide in appeals against acquittal as in
appeal against conviction but, amongst things, if two views of the
evidence are reasonably possible the High Court ought to interfere
with the order of acquittal passed by the trial court.
It would be convenient to deal first with the appeals filed by
Nathoo, Dr. Kohli and Banney Khan who have the benefit of
an
ori:Ier of acquittal passed in their favour by the Sessions Court. For a
proper understanding of the case it is necessary to have a glimpse c~
the political canvass of Dataganj.
The deceased Tribeni Sahai,
Dharam Pal who was corrtesting the election to the Chairmanship of
the Town Area Committee, the 79 year old Banney Khan and Dr.
Kohli who was the President of the· Jan Sangh unit were keyfigers
in the Dataganj politics.
The story of their doings is the not unfamiliar tale of floor-crossing and internal splits.
In the Assembly
election of 1967 an independent candidate-incidentally,
a retired
District Juldge-won on the support of other political parties though
some of these parties had put up their own candidates.
The Congress (R) candidate supported by Tribeni Sahai lost that election
and the Judge won.
In the election to the Town Area Comm1ttee
held in the same year.
Tribeni Sahai supported a Jan Sangh candidate as against Dharam Pal who was put up by the Congress.
Dr.
Kohli, though an ardent Jan Sanghite, supported Dhram Pal. In the
1969 mid-term poll Tribeni Sahai won as a Congress candidate, this
tlme with the help of Dharam Pal.
The Judge, Harish Chandra
Singh, who as a Bhartiya Kranti Dal candidate had the support of
Dr. Kohli, Banney Khan and others lost the election.
Coming nearer the date of occurrence, the Town Area Committee
elections were to be held in Datagani on May 30,
1971. Dharam
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Pal, a Congress (R) candidate for the Chairmanship of the Committee had the support of Tribeni Sahai while Bnlak Ram, now under
death sentence, who was a Congress (0) candidate for ChairmanG
ship had the suponrt of other parties.
Dr. Kohli and BannPv Kh'ln
were partisans of Balak Ram. Banney Khan was himself a Congress
(0) candidate for the membership of the Committee.
The Congress
(R) and Congress (0) had each fielded 10 candidates for the 10
Committee scats.
Nathoo, apparently an independent candi(Jate, was
in fact a dummy candidate put uP bv CoMress (0) in order to provid·~ for the possible disloyalty of its official candidate. Nathoo is
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Balak Ram's brother-in-law.
(I) [1974] 4 s.c.c. 201.
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BALAK RAM V. U.P. STATE (Chandrachud, J.)
763-
'"Of Bannev Khan it is said that since 1937, candidates put up by
him for Chirmanship of the Town Area Committee had won consistently, no matter which party they belonged to or which party the
rival candidates beloni!:ed to.
In 1948 Banney Khan had supported
Tribeni Sahai for Chairmanship and the latter won.
Banney Khan
was himself the Vice-Chairman of the Committee since 1937.
Dharam Pal who was the Chairman of the Committee since 1953
had the unwavering support of Banney Khan through all these years .
They feU· out on the eve of the 1971 elections.
·
Political differences evidently polluted the social life of the Dataganj citizens.
They carried those differences into their private lives
and their social relationship was marked by a series of quarrels and
court cases. A civil suit was filed in 1965 by Banney Khan and his
brother P'earey Mian against Tribeni Sahai and others for a permanent injunction restraining them room realising Tehbazari dues from
the market. This six year old suit was, not surprisingly, pending on
the date of the occurrence.
A criminal case was then filed against
Banney Khan and Pearey Mian under section 307, Penal Code, for
a murderous assault on one Suleman whose brother Mohammad Sultan
Vakil was an active follower of Tribeni Sahai.
The case against
Banney Khan was later withdrawn and Pearey Mian was acquitted.
In 1967-68 Tribeni Sahai had filed a case under section 120-B, Penal
Code, charging Dharam Pal, Pearey Main and others for conspiracy
tu murder him. In those days Dharam Pal belonged to a rival party.
In 1970 Tribeni Sahai had filed a similar case against Pearey Main
and others accusing them of a conspiracy to murder him. On August
3, 1970 Pearcy Mian had lodged report against Tribeni Sahai and
his bodyguard Radhey under section 394, Penal Code. It is obvious
that a point to gain on the political plane was enough excuse for all
these gentlemen, to involve one another into grave charges like murder and dacoity. Dharam Pal who was strongly supported by Tribeni
Sahai in the 1971 elections for the Chairmanship of the Town Area
Committee has admitted in his evidence that in earlier days Tribeni
Sahai used to harass him with false cases.
In a trial against two
persons called Tullan and Beni untler section 394 of the Penal Code,
Dharam Pal had rleoosed as a defence witness
that
Tribeni Sahai
had falsely implicated those persons as they were his supporters.
Beni, in fact, was in Dharam Pal's emolovment as a driver. It seems
that the two accused were initially convicted but were acquitted in
appeal. ¥ost of the cases described above seem to have been politically m.ohvated .. The fact that such serious charges lacked a true
foundation was melevant to the way of life which these gentlemen
had adopted.
It is ~~t suprising, though it is to be regretted; that in the din of
th~se pohttcal .a!ld personal feuds the witnesses had a heavy commitment ~o factitious loyalties. When key witnesses deny the obvious
pretend 1gnoranc~ ~f fa~ts .within their sPecial knowledge and giv~
free play to their Imagmatlon on crucial matters, pursuit of truth
:764
SUPREME COURT REPORTS
(1975) 1 S.C.R.
.becomes a wild goose chase.
An the befoggeld trial Judge has then
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.to discharge the unenviable duty of seeing and hearing such witnesses.
Take Jhilmili and Ram Prakash.
The fire-arm injuries on their
.person establish their presence at the scene of offence but to be pre-
.sent is only to have an opportunity to witness.
Presence does not
.ensure truthfulness nor is it any insurance against the common human
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failing to involve the innocent along with the guilty.
The presence
.of Jhilmili and Ram Prakash may indeed discredit them if they were
components of the procession which marched towards Tribeni Sahai's
house.
The question which requires examination is whether, as contended by the defence, they were members of the procession and were
injured accidentally when the processionists opened fire or whether,
as contended by the prosecution, they received injuries when as disC
interested by-standers they rushed to protect Tribeni Sahai.
It is surprising that the First Information Report lodged
by
Raien!dra Kumar Misra does not refer to the presence of either Jhilmili or Ram Prakash.
Rajendra Kumar ciaims to have seen the
incident from a close angle and he has mentioned in the Report the
names of persons who had seen the occurrence Jhilmili and Ram
Prakash were admittedly injured in the firing incident and witnesses
have
uniformly
stated
that there ·was enough light at the
scene of occurrence.
Jhilmili had received a through and through
bullet injury OD. the · thigh while Ram Prakash had received .a tirearm burn on his abdomen.
The question is not of
the
routine
variety and one. cannot brush aside the failure of the first informant
to refer to the two witnesses by saying that he may not have noticetl
their presence.
The point of the matter is whether,
having
seen
them, he dropped them deliberately as they were on the side of the
accused.
Rajendra Kumar Misra is himself a relative of Tribeni Sahai, being the brother-in-law of Radhey Shyam Sharma, the brother of Tribeni Sahai.
In the F. I. R. Rajendra Kumar mentioned that Loki,
Ganga Ram and Aryendra had seen the incident. Ganga Ram was
a Bataidar of Tribeni Sahai and sometimes he used to live with Tribeni Sahai.
Arvendra is the sister's son of Dharam Pal who as a
Congress (R) candidate was contesting the election for the Chairmanship of the Committee with the active support of Tribeni Sahai.
Neither Ganga Ram nor Loki was examined by the prosecution and
the learned public prosecutor stated that Loki had been won over
'?Y the. defence.
Such a bald assertion, unsupported by any data, is
msuffictent to absolve the prosecution from its duty to examine witnesses whose evitience is necessary for upholding its case.
A large number of persons had gathered at the scene of offence
a?d. the Tnves_tigating Officer, Yogendra Sharma, himself 'arrived
Wtthm a short ttme.
Arrangements were made to take Tribeni Sahai
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765:
and Radhey to Budaun in two cars but no notice whatsoever was.
taken of the presence of Jhilmili and Ram Prakash or of the injuries
received by them though they were ,crying in pain. Yogendra Shanna
says that he asked a constable to take them to the police station with
instructions that they should be taken to the hospital thereafter.
As
a matter of normal routine, they should have been taken to Budaun
along with Tribeni Sahai and Radhey especially when the two cars of
Dharam Pal and Rajendra Kumar were so readily available.