# K1d'ar Lall !it!tlt 11t1ti Another v. Hari Lall Si!al Bose I 19$1 Dec. 2(,, !951 Surajpal Singh 11nd Others

- **Citation:** [1952] 1 S.C.R. 193
- **Court:** Supreme Court of India
- **Decided:** 1952
- **Case number:** CRIMINAL APPELLATE JuRisDJCTION : Criminal Appeal No. 16 of 1950
- **Bench:** Saiyid Fazl Ali, VMAN BosE JJ
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/k1d-ar-lall-it-tlt-11t1ti-another-v-hari-lall-si-al-bose-i-19-1-dec-2-951-232
- **Pages:** 10

## Headnote

Criminal Procedure Code (Act V of 1898), s. 417-Appeal again.rt
acquittal-lnterfert:nce-Guiding principle.
It is well' settled that in an appeal under s. 417 of the Criminal
Procedure Code, the High Court has full
power
to review ·the
evidence upon which the order of· acquittal was foonded.
But it
is equally well settled that the presumption of innocence of the
accused is further reinforced by his acquittal by the trial Court
and' the findings of the trial 'Court which had the aqvantagc of
seeing the witnesses and hearing their evidence can be reversed
only foc very substantial and compelling reasons •
..
1951
K1d'ar Lall !it!tlt
11t1ti Another
v.
Hari Lall Si!al
Bose I
19$1
Dec. 2(,,
!951
Surajpal Singh
11nd Others
v.
The State.
Faz/ Ali /.
194
S_(JPREME COURT REPORTS
[1952]
CRIMINAL
APPELLATE
JuRisDJCTION :
Criminal
Appeal No. 16 of 1950.
Appeal by special leave from
the judgment .and order dated 8th May, 1947, of the
High Court of Judicature at Allahabad (Sankar Saran
and Akbar Hussain JJ.) in Criminal Appeal No. 80
of 1946.
S. P. Sinha (G. C. Mathur, with him), for the appellant.
•
K. B. Asthana, for the respondent.
1951. December 20.
The Judgment of
the Court
was delivered by
FAZL Au.J.-This is_an appeal against a judgment
of the High Court of Judicature at Allahabad reversing the decision of the Sessions Judge of Aligarh in a
criminal case.
The
appellants were tried
by ·the
Sessions Judge on charges under section 302 read with
section 149, section 148,
sections 325 and 326 read
with section 149, and section 201 of the Indian Penal
Code, but were acquitted.
On
appeal
by
the
State
Government, the High Court ,reversed the
Sessions
Judge's decision, and
convicted
the
appellants
and
sentenced them to transportation for life under section
302 read with section 149, to five yeart' rigorous imprisonment under sections 325 and 326 read with section
149, and to two years', rigorous imprisonment
under
section 147 of the Indian Penal Code, all the sentences
being made to run concurrently. The appellants thereafter applied to the Privy Council
for special
leave,
which was granted on the 28th October, 1947.
The facts which were put before the court on behalf
of the prosecution may be briefly stated
as
follows.
There is a plot No. 518 in Nagaria Patti Chaharum,
village Shahgarh in the district of Aligarh which is
about 30 bighas in area and is known as the "teesa"
field. This plot was the "sir" land of several landlords
including Mst. Bhagwati Kuer and Ratan Singh
and
had
been
let out
to
certain
tenants.
In
1944,
Mst. Bhagwati Kuer, Ratan Singh and their co-sharers
filed a suit for the ejectment of the tenants, and the
•
-
..,·
J '
.
S.C.R.
&,UPREME COURT REPORTS
195
suit was decreed.
On the 7th June, 1945, possession
over the plot was delivered by the A.min to Surajpal
Singh, the first appellant, who was the mukhtar-i-A.m
of Mst. Bhagwati Kuer. . It was contended on
behalf
of Surajpal Singh that he took possession on behalf of
all the
co--sharers,
but certain statements made by
Rattan Singh in his evidence do not support this contention.
However that may be, it appears that 'on the
17th June, 1945, Ratan Singh reported
to
the
police
that he had sent his labourers to irrigate the "teesa"
field, and while they were irrigating it Surajpal Singh
and certain other persons came and · tried to stop the
irrigation . and damaged the ploughs of
Ratan Singh.
On the 18th June, at about 7 A.M., the occurrence which
is the subject-matter of the present trial took place. The
prosecution version of the occurrence was that
while
Ratan Singh's labourers were working
in
the field
under the supervision of one Behari Singh, the appellants with many other persons came armed with guns,
spears and lathis, and some of the members of
the
appelhmts' party entered the field, cut off the nosestrings of the bullocks and abused and assaulted the
labourers, most of whom ran away.
Thereupon, Deva
Sukh, who was there to supply water to the labourers,
protested and wa

## Text

..
S.C.R.
SUPREME COURT REPORTS
193
(excluding the plaintiff's) for the aggregate sum due
as above and, in default of ·payment, limiting the
liabilities of each item of property to the sum rateably
due on it under section 82.
On the question of costs. The plaintiff repudiated
section 82 in the course of the arguments before us and
rested his case on section 43 of the Contract Act, nor
did he clearly and unmistakably plead a case of subrogation in his plaint even in the alternative.
The
defendants, on the other hand, set up a case which ·has
failed on the facts.
I would, therefore,
direct
each
side to bear its own costs in this appeal.
As regards the costs incurred in the Courts below
and
any
costs which may
be necessitated
by a '
further enquiry, they will be determined according to
the final result of the litigation and with due regard to
all matters bearing on the question of costs.
FAZL ALI J.-I agree.
Case remanded.
Agent for the appellant : M. S. K. Sastri
Agent for the respondent: Ganpat Rai.
SURAJPAL SINGH AND OTHERS
ti.
THE STATE
[SAIYID FAZL ALI and VMAN BosE JJ.J
Criminal Procedure Code (Act V of 1898), s. 417-Appeal again.rt
acquittal-lnterfert:nce-Guiding principle.
It is well' settled that in an appeal under s. 417 of the Criminal
Procedure Code, the High Court has full
power
to review ·the
evidence upon which the order of· acquittal was foonded.
But it
is equally well settled that the presumption of innocence of the
accused is further reinforced by his acquittal by the trial Court
and' the findings of the trial 'Court which had the aqvantagc of
seeing the witnesses and hearing their evidence can be reversed
only foc very substantial and compelling reasons •
..
1951
K1d'ar Lall !it!tlt
11t1ti Another
v.
Hari Lall Si!al
Bose I
19$1
Dec. 2(,,
!951
Surajpal Singh
11nd Others
v.
The State.
Faz/ Ali /.
194
S_(JPREME COURT REPORTS
[1952]
CRIMINAL
APPELLATE
JuRisDJCTION :
Criminal
Appeal No. 16 of 1950.
Appeal by special leave from
the judgment .and order dated 8th May, 1947, of the
High Court of Judicature at Allahabad (Sankar Saran
and Akbar Hussain JJ.) in Criminal Appeal No. 80
of 1946.
S. P. Sinha (G. C. Mathur, with him), for the appellant.
•
K. B. Asthana, for the respondent.
1951. December 20.
The Judgment of
the Court
was delivered by
FAZL Au.J.-This is_an appeal against a judgment
of the High Court of Judicature at Allahabad reversing the decision of the Sessions Judge of Aligarh in a
criminal case.
The
appellants were tried
by ·the
Sessions Judge on charges under section 302 read with
section 149, section 148,
sections 325 and 326 read
with section 149, and section 201 of the Indian Penal
Code, but were acquitted.
On
appeal
by
the
State
Government, the High Court ,reversed the
Sessions
Judge's decision, and
convicted
the
appellants
and
sentenced them to transportation for life under section
302 read with section 149, to five yeart' rigorous imprisonment under sections 325 and 326 read with section
149, and to two years', rigorous imprisonment
under
section 147 of the Indian Penal Code, all the sentences
being made to run concurrently. The appellants thereafter applied to the Privy Council
for special
leave,
which was granted on the 28th October, 1947.
The facts which were put before the court on behalf
of the prosecution may be briefly stated
as
follows.
There is a plot No. 518 in Nagaria Patti Chaharum,
village Shahgarh in the district of Aligarh which is
about 30 bighas in area and is known as the "teesa"
field. This plot was the "sir" land of several landlords
including Mst. Bhagwati Kuer and Ratan Singh
and
had
been
let out
to
certain
tenants.
In
1944,
Mst. Bhagwati Kuer, Ratan Singh and their co-sharers
filed a suit for the ejectment of the tenants, and the
•
-
..,·
J '
.
S.C.R.
&,UPREME COURT REPORTS
195
suit was decreed.
On the 7th June, 1945, possession
over the plot was delivered by the A.min to Surajpal
Singh, the first appellant, who was the mukhtar-i-A.m
of Mst. Bhagwati Kuer. . It was contended on
behalf
of Surajpal Singh that he took possession on behalf of
all the
co--sharers,
but certain statements made by
Rattan Singh in his evidence do not support this contention.
However that may be, it appears that 'on the
17th June, 1945, Ratan Singh reported
to
the
police
that he had sent his labourers to irrigate the "teesa"
field, and while they were irrigating it Surajpal Singh
and certain other persons came and · tried to stop the
irrigation . and damaged the ploughs of
Ratan Singh.
On the 18th June, at about 7 A.M., the occurrence which
is the subject-matter of the present trial took place. The
prosecution version of the occurrence was that
while
Ratan Singh's labourers were working
in
the field
under the supervision of one Behari Singh, the appellants with many other persons came armed with guns,
spears and lathis, and some of the members of
the
appelhmts' party entered the field, cut off the nosestrings of the bullocks and abused and assaulted the
labourers, most of whom ran away.
Thereupon, Deva
Sukh, who was there to supply water to the labourers,
protested and was beaten with lathis.
At
that
point
of time, Behari Singh and 10 to 15 persons ·tame and
a fight took! place between the parties.
During the
fight, one · of the accused persons, Rajendra Singh,
a
young lad, fired his gun twice in the air, and thereafter Surajpal Singh took the gun
from him and fired
two shots hitting Nawab Mewati, who . died instantaneously, and Behari Singh, who died later in the day.
Three other persons, Zorawar, Rajpal and Lakhan also
received gun-shot injuries.
Sometime
later,
Surajpal
Singh along with . the other three appellants came to
the spot and removed the dead body of Nawab in a
cart. The body was thrown into a river and was
recovered on the 20th June, 1945.
After investigation 25
persons including the appellants were sent up for trial.
After hearing the evidence in the case, the Sessions
Judge delivered judgment on the 20th February, 1946,
..
1951
Suraipal Singh .
and Others
v.
The State.
Faz/ Ali f.
1951
Suraipal Singh
and Other•
v.
The State.
Fazl Ali/.
196
SUPREME COURT REPORTS
[1952}
He held that the "teesa" field was in the possession of
Surajpal Singh, that Behari Singh and Ratan Singh's
men were aggressors and wished to take forcible possession of the field, that when resisted they had attacked the appellants' party, that the person who fired
the gun had done so in self-defence and not with a
view to killing Behari Singh and Nawab Mewati, and.
that the evidence adduced by the prosecution was so
unsatisfactory that it was unsafe to convict the accused upon it.
As to the charge of concealing evidence of
the offence of murder by the removal of the dead body
of Nawab, the Sessions Judge expressed the opinion that
in order to convict a pe(son on that charge it must be
proved that· the offence, the evidence
of
which the
accused is alleged to have caused
to
disappear, had
actually been committed, but since in the present case
the charge of murder was not proved the accused could
not be convicted for having caused
disappearance of
evidence connected with it.
The Judge also held that
the evidence being unreliable th<; charge
under section
201 of the Indian Penal Code had not ·been established
beyond reasonable doubt.
The High Court delievered its judgment on the
8th May, 1947, allowing
the appeal
of
the
State
Government.
Shortly stated, that conclusion arrived
at by the High
Court
was that
Ratan
Singh had
as much right to the possession of the field as Bhagwati
Kuer, tl1at both parties· were trying to take exclusive
possession of the field, that both parties were prepared
for all contingencies to vindicate
and
enforce
their
rights, and hence the
question
of
possession
was
wholly immaterial and no right
of
private defence
could be successfully pleaded by the appellants.
A persual of tlie two judgments before
us
shows
that while the Sessions
Judge took
great
pains to
discuss all the important aspects of tlie case
and to
record his opinion on every material point, tlie learned
Judges of the High Court have reversed his
decision
witliout displacing the very substantial
reasons given
by him in support of his conclusion.
The
difference
in the treatment of the case by the two courts below
-
S.C.R.
SUPREME COURT REPORTS
197
is particularly noticeable in the man'ner m which they
have dealt with the prosecution evidence.
We
find
that while the Sessions Judge took up the evidence of
each witness and recorded his findil;,lg with regard
to
his credibility after discussing the minutest details
of
the evidence, all that the learned Judges of the High
Court have to say about the prosecution evidence as a
whole i~ as follows :-
"In Prag Dat's case their Lordships observed : 'As
usual in cases of this kind the police have found it
·difficult to secure independent testimony of what
did
take place;
Those of the villagers who were present
and looking on would probably by sympathy and bias
be so attached to one or other of the disputing parties.
that it would be hopeless
to get
disinterested
and
reliable evidence from them.'
This difficulty the police find in most riot cases and
this case is not free from it. But as in Prag Dat's
case, m this case there are
four witnesses, viz., Deo
Sukh, Rori Singh, Ra1U Singh, and Ratan Singμ, who
could be characterised as independent
witnesses
and
they support the case for the prosecution, in the main.
In our judgment their
testimony is
on the whole
worthy of credence and sufficient to justify the
conviction of the respondents."
In view of the summary treatment of the evidence
by the High Court, we had
to read
the
evidence
adduced in the case with great care, and what we find
is that the four witnesses, whose
evidence
h~s been
accepted by the High Court; are just the persons
against whom very senous criticism
was
offered by
the Sessions Judge.
Of these witnesses,
Ratan Singh
not being an eye-witness may be ruled- out. As to the
remaining witnesses, we are on the whole inclined to
· agree with the view expresed by the
Sessions Judge.
According to the Sessions . Judge, the manner in \Vhich
Deva Sukh was brought into the picture and the circumstances attendant on his evidence, furnish
strong
reasons for rejecting
the
prosecution version.
What ·
has been held is that the whole case of the prosecution
2'6
- -
1951
Surajpal Singlt>
and 0 ther.t
v;
The State~
Falll Ali f.
'
1951
Surajpal Singh
and Others
v.
The State.
Fazl Ali /.
198
SUPREME COURT REPORTS
[19521
that Deva Sukh had received injuries in the course of
the alleged occurrence
was
false
and
his
inj~rics
"were made up so as to create evidence
of
pnvate
defence" to be be utilized by the prosecution to meet the
charge of having caused injuries to the members of the
appellants' party.
It has
been
established
that
at
least four persons on the
side of the
accused
had
received injuries.
Mahindarpal had received
no
less
than 16 injuries, and his condition .was serious
for
some time.
Karan s;ngh had 12 injuries, one of which
was grievous.
Hari Singh ·had received
7
injuries
including a grievous injury, and Nikka Singh also was
injured, his injury having been noticed by the investigating sub-inspector.
Tn the prosecution evidence, it was stated that many
of the accused persons were armed with lathis and had
used them, and it would be strange if it was not proved that any of the persons on their side had any
injuries attributable to lathis.
It has been established
that the four injured persons of Ratan Singh's party,
viz., Rajpal Singh, Lakhan Singh, Behari
Singh
and
Zorawar _Singh, had only gun-shot wounds.
A seriou•
question which arises in this case is at what stage the
gun was used, and whether it was used in self-defence
after the . members of the appellants' party
were
assaulted with lathis or it was used before they were assaulted.
The prosecution witnesses had to admit that
at
first a gun was fired twice in the air dnd then the
actual "firing took place.
This version of
the firing
lends support to the defence story that the gun was
fired in self-defence when Ratan Singh's men attacked
members of the accused's party.
The Sessions Judge
has expressed the view that in order
to
meet the
defence case the prosecution introduced the story
of
Deva Sukh having been assaulted with a lathi in the
first instance so as to make the appellants' party
the
aggressors, it being the prosecution case that
Behari
Singh and his men had used lathis in order to defend
themselves.
In order to resolve the conflict
ill
the
cases of the parties and to get at the true picture, the
....
,_
,( 1
I
\
S.C.R.
•SUPREME COURT REPORTS
199
1951.
Sessions Judge went very minutely into the question
as to whether there was trustworth}
evidence
about Surajpal Singh
Deva Sukh having received any injury at all in
the
and O,thers
occurrence. It seems to us
~h\lt there is .a formidable
The vState.
array of -circumstances to support the- conclusion ultimately reached by the Sessions Judge.
It appears that
Faz! Ali 1.
in the fir~t information report there is no reference to
Deva Sukh or to the. injuries said to have been received
by him. The Sessions Judge has pointed out that there
was a considerable interval of· time between the occurrence and the lodging of the -first infoonation report,
and therefore . it is surprising that the most important
incident of the occurrence and the name of the
most important witness
was
omitted in the report.
Again, no reference was made to Deva Sukh. or to his
injuries in the dying
declaration
of
Behari Singh
which was recorded by one Dr. Shankar Deo, and also
in that of Lakhan Singh.
The Sessions Judge . has
further pointed out
that
the
prosecution witnesses,
Chokha, Prempal, Cheta and Gangola Singh, who were
examined by the investigating officer on the 18th June,
did not also -refer to Deva
Sukh.
The
investigating
sub-inspector was informed of . the injuries on Deva
Sukh and
hi~ presence at the time of the occurrence
for the first time on the 19th June, 1945,
and Deva
Suk.h's explanation for not appe,aring before
him·· at
the earliest opportunity was that he was frightened
and had concealed himself in his house for about two
days and had directed his relations not to inform the
police of his presence.
He also stated that' on
his
arrival in his house after the occurrence he did not
inform his relations of what had happened. Some of
these matters might have been overlooked if there had
been convincing evidence about his
having actually
received injuries, but ws are' satisfied that
such
evidence as is before us is extremely unsatisfactory and
suspicious and we entertain grave doubts as to whether
Deva Sukh received any injuries at all.
Dr. Shanker Deo, who examined Deva Sukh, is
a
retired
Sub-Assistant
Surgeon
pract1smg
in
Kauiraganj, which is not far from village Shahgarh.
• 1951
Surajpal Singh
and Others
v.
The State.
Faz/ Ali /.
200
SUPREME COURT REPORTS
[1952]
He admits that he had known Ratan Singh since his
childhood, and when he was a child he used to be
taught at the house of Ratan Singh by a teacher employed by Ratan Singh' s uncle.
He has stated that
Deva Sukh had two bruises across the back
of the
middle of the left forearm,
and
one
of
them was
grievous since the left ulna was fractured.
He further
says that at the time of examination he
did
charge
fees from Deva Sukh, that he
was brought to him
three days after the other injured persons, that when
the latter group of persons came to him none of them
told him that there was one more injured person to be
examined, and that Deva Sukh was brought to him by
Ratan Singh's
servant.
There
are
unsatisfactory
features in the evidence of this doctor relating to other
matters which need not be referred to, but what is
somewhat remarkable is that though there is a
District Board Hospital at Jalali about four miles · from
Kauirganj, Deva Sukh did not obtain an injury certificate from the doctor in charge of that hospital. Deva
Sukh says that he did go to that hospital to have his
injuries attended to, but there is no evidence to corroborate this.
These facts as well as a number of other
facts relied upon by the Sessions
Judge
do
go to
support his theory, and once it is held that the prosecution has to rely on fabricated evidence, it
throws
doubts on the entire case.
From the record, it appears that Surajpal Singh was
the person who had been taking an active interest in
the ejectment suit, and
he was
admittedly spending
money. Ratan Singh says that he had also paid money
to Surajpal Singh towards the expenditure, but this is
not probable because he and Surajpal ·had been on bad
terms.
It is admitted that Surajpal is the person to
whom, the Amin gave possession of the land, but in
spite of this fact, Ratan Singh's
men
started
operations on the land ignoring
Bhagwati
Kuer,
which
Ratan Singh had no right to do; even assuming that
the land was joint property. If Behari Singh and the
other men sent by Ratan Singh were trying to take
exclusive possession
of
the
land and
had started
.
-·
S.C.R.
SUPREME COURT REPORTS
201
6perations thereon, Surajpal Singh had every right to
protest, and if his men were beaten
first, of which
there are strong indications in the case, he was entitled
to repel the attack in exercise of the right of private
defence. That Ratan Singh had
made
ample
preparations
through
Behari
Singh
is
quite
clear.
Admittedly, there were a number of. per.sons
armed
with lathis present at the scene on his behalf including
outsiders like Nawab Mewati, who is said
to
have
been a well-known fighter, Zorawar and others.
As regards
~he remaining two witnesses, to whom
the High Court has made reference, viz., Rori Singh
and Pransukh, it seems to us that the "High Couri: has
overlooked the comments made by the Sessions Judge
upon their evidence, some of which are of considerable force.
What
has
impressed
us
1s
tltat they
were
not · independent
witnesses
and
~ere, not
mentioned in the first information report as witnesses
to the occurrence, and they were examined by the subinspector as late as the 20th
and
21st June, . 1945.
After reading the two judgments, we see no reason
why the opinion of the Sessions Judge regarding these
witnesses should not receive the weight which should
normally be attached to that of the ,trial court.
It is well-established that in an appeal under section 417 of the Criminal Procedure
Codel
tlte High
Court has full power to review
the
evidence upon
which tlte order of acquittal was founded, but it is
equally well-settled that the presumption of innocence
of the accused is hlrther reinforced by his
acquittal
by the trial court, and the findings of the trial court
which had the advantage of seeing the
witn~sses and
hearing their evidence can be reversed only for very
substantia.1 and compelling reasons.
On the whole, we are inclined to hold that
the
Sessions Judge had taken a reasonable view
of
the
facts of the case, and in our opinion there were no
good reasons for reversing that view.
The
assessors
with whose aid the trial was held, were unanimously
of the opinion that the accused were not guilty, and
'
1951
Surajpal Singh .
and Others
v.
The State.
Fazl Ali f.
1951
Sur11ipal Singh
and Others
v.
The State.
Faz/ Ali /.
1951
D•v:. 14.
202
SUPREME CQURT REPORTS
[19521
though 25 persons
were placed on trial on identical
evidence, the State Government
preferred an
appeal
only against 5 of them on the sole ground that
the
acquittal was against the weight of evidence on the
record.
In the result, we allow the
viction and sentences of the
them of all the charges.
appeal, set aside the conappellants
and
acquit
Appeal allowed.
Agent for the appellant: P. K. Chatterjee
Agent for
the respondent: I. N. Shroff for P. K.
Bose.
BIJJOY
CHAID POTRA
v.
THE STATE
[SAIYID FAZL Au and VrvIAN BosE JJ.]
Criminal Procedure Code (Act V of 1898), ss. 237, 342-lndian
Penal Code (XLV of 1860), ss. 307, 326-Charge undei· '· 307Conviction under s. 326-Legalt"ty-Failure to examine accused fully
-When vitiates trial-Necessity of prejudice to accused.
The appellant who inflicted serious injuries on another was
charged under s. 307 of the Indian Penal
Code
but
the jury
returned a verdict of guilty against him under s. 326 of the Penal
Code, and the Sessions Judge, accepting
the
verdict,
convicted
hiin under s. 326.
It was contended that the conviction
was
illegal inasmuch as the offence under s. 326 was not a minor
offence with reference to the offence under s. 307. Held, that as
~
it was open to the Sessions Judge, on the facts of the case, to
charge the appellant alternatively under ss. 307 and 326 of the
Code the case was covered by s. 237 of the Criminal Procedure
Code, and the co)lviction under s. 326 of the Penal Code was pro.
per, even though there was no charge under the section.
Begu v. King Emperor (52 I.A. 191) applied.
In order that a conviction may be set aside for non-compliance
with the provisions of s. 342 of the Criminal Procedure Code, it
is not sufficient fur the accused merely to show that he was
not
fully examined as required by the section, but he must also show
that such examination has materially ·prejudiced him.
..