Paragraph numbers below are the court’s original numbering, recovered from the source text.
10. Dr. S.K. Jha, posted as ~edical Officer Primary Health Centre, Sikandr'a Rao on 1.9.1979 examined Smt. Longshree and found the followingj,oj_uries on person: "1. Contusion 4 cm x 1 /5 cm on the left shoulder. 2. Contusion 3 cm x 1.5 cm on the left shoulder. 3. Contusion 5 cm x 2 cm on the outer and middle part of right arm on upper side. 4. Contusion 6 cm x 2 m on the right scapular region. 5. Contusion 10 cm x2 cm on the right side of the back, 7 cm below lower angle of scapula~ · 6. Contusion 6 cm x 1 cm on the left side of back. \_ All the injuries were caused by some hard bluntobject and were found to be fresh at the time of examination." r-
11. Dr. Jha also examined Chandan Giri and found the following one injury on his person:- "Lacerated wound 1 cm x 0.2 cm x muscle deep on the back of left hand."
12. According to ·the doctor, the injuries to Hiralal, Aidal Singh and Chandan Giri could be caused by gun shots while -4 ·· injuries to Smt.. Ltingshree could be caused by some lathi or c danda. The doctor further stated that he had written a letter to Tehsildar Magistrate, Sikandrarao for recording the dying dee- 1- larations of Aida! Singh and Hiralal and their statements were recorded. The injured were in fit condition to make statements t for which· he appended his certificates Exs. Ka.13 and Ka.14. D The Tehsildar Magistrate also obtained the thumb impression of Aida I Singh and signature of Hiralal on the statements before him.
13. Smt. Longshree, PW5, wife of Hiralal deceased, is an E injured eye:-witness. In .her testimony, she clearly stated that at about 7.30 p.m. in the night, she was inside her house with the wife of Aidal Singh and along with the children of her family. At that time, she was busy cooking food while her husband Hiralal 1= was sitting in the chowk along with Chandan Giri and some oth- ers. About 8 or 10 miscreants had entered· her house armed '"r F with guns, la.this and kattas etc. and started firing as a result of which her husband Hiralal and Chandan Giri were injured. In- t side the house, the miscrear:its injured her and Aidal Singh as well. The miscreants uttered that they would destroy the family of H1ralal and. they in fact took away the gun and some other G articles. She also stated that there was moonlight and lantern .._ light arid she qould identify accused Ajanti, Munna Giri, Sukhpal ,i… and Harpal who were otherwise known to her. The miscreants made their escape good from the spot. She was also medically i examined and the doctor found number of injuries as enumer- …. H ated in the preceding paragraphs. STATE OF U.P. V. SUKHPAL SINGH AND ORS. [DALVEER BHANDARI, J.]
14. Shri Ram Autar Saxena PW9, Tehsildar (Executive Magistrate), Sikandra Rao stated that on 1.9.1979, he had re- corded the dying declarations Ex.Ka15 and Ex.Ka16 of Hiralal and Aidal Singh. He also stated that w~atever was stated be- fore him by the abovementioned two persons, he had reduced the same in writing as contained in the two docu~ents men- tioned above and before·recording their statements had satis- tied himself that the deponents had obtained the certificates of the doctor as well Exs.Ka.13 and Ka.14. He had obtained the thumb impression and signature of the deponents (under their signatures) after having recorded their statements which were c read over to them. The accused persons in their statements under section 3l3 Cr.P.C. pleaded not guilty and.consequently they were charged under section 3~6 IPC.
15. The prosecution has based its case primarily on the evidence of the injured witnesses Smt. Longshree PW5 and o· ehandan Giri PW3 respectively. Smt. Longshree PW5, injured ~-eyewitness clearly stated in her statement that she had recog- nized accused persons in the moonlight and the light of the Ian- tern. She also stated that she had otherwise known the accused persons. She also stated that the accused persons had injured her. The relevant portion of her statement reads thus : "The criminals had asked me about the goods kept in the house. I had told them about the goods and that the entire. kothi is open, search the goods. All the criminals were open faced. They had tied cloth on their heads. The criminals remained in my house for half an hour. After firing, the criminals searched for articles in the house for half an hour."
16. Chandan Giri, PW3 also supported the entire pros- -4 ecution version.
17. The trial court found the testimony of Bhagwant Singh, PW2 brother of deceased Hiralal and Aidal Singh and PW5 injured eye-witness Smt. Longshree, wife of Hiralal and another injured PW3 Chandan Giri credible and trustworthy. y
18. The appellants l(Vere not strangers to the witnesses. They had known each other. There was adequate moonlight and the light of the burning lantern. The trial court analyzed the pros- ecution version and the defence version and came to the clear conclusion that the prosecution has succeeded in establishing s its case beyond shadow of doubt.
19. The trial court found the accused persons guilty under section 396 IPC and sentenced them to life imprisonment. The accused aggrieved by their conviction by the trial court preferred appeal before the High Court. The High Court by the impugned C judgment allowed the appeal. The State of U.P. aggrieved by . the impugned judgment has preferred these appeals.
20. We have carefully analyzed the impugned judgme,nt of \~e High Court and also the judgment of the trial court and have ·~ ~1~9 carefully perused the entire evidence on record. Certain findings in the impugned judgment of the High Court are based on no evidence, such as: "Thus, it is clear from the evidence OI') record that neither the appellants intended to commit dacoity nor dacoity took place. But all the appellants were Gharged for the offence of dacoity with murder." . ..
21. This is quite contrar-Y to the evidence on record. The eye-witnesses have specifically' stated that the accused per- · sons had c~mmitted dacoity. The accused had also taken away F the licensed gun and other articles. So the aforesaid findings of the High Court are not based on evidence on record.
22. The High Court 1ri the impugned judgment also erro- neously obse~ed that- ".,. the chief intention of accused was not to commit robbery, theft or extortion but to commit murder and it was subsequent to the murder that they removed certain property dishonestly."
23. This finding cannot be supported by evidence on record. STATE OF U.P. V SUKHPAL SINGH AND ORS. [DALVEER BHANDARI, J.] This finding also runs contrary to the earlier finding of the High Court and is contrary to the evidence on record.
24. The following findings of the High Court are also con- trary to the evidence on record : "But prosecution could not prove that dacoity took place and two deceased were murdered during commission of dacoily."
25. In the instant case, all the witnesses have stated that they had otherwise known the accused persons and they,were not strangers to them. In the moonlight and lantern light they clearly identified them. Therefore, the test identification parade was really not necessary in this case. Whether test identifica- tion parade is necessary or'hot would depend on the facts and Circumstances of each case. This court in a series of cases has taken the view that the test identification parade under sec- . tion 9 of the Evidence Act is to test the veracity of the witness ahd his_capacity to identify the unknown persons whom the wit- ness must have seen only once but in the instant case the wit- nesses were otherwise known to accused persons, therefore, the test identification parade has no great relevance in the facts E and circumstances of this case.
26. The High Court has altogether failed to deal with the dying declarations of both the deceased Hiralal andAidal Singh. The High Court has not correctly construed and analysed· the evidence on record. II') this case, all the witnesses have c~t:. F egorically stated that'the accused.persons committed dacoity and killed Hiralal and Aidal Singh and injured Smt. Longshree and Chandan Giri' in the incident. There was adequate light in which they had recognized these accused persons who were otherwise known to them.
27. The High Court erroneously set aside a well reasoned judgment of the trial court which is based on correct evaluation of evidence of injured eye-witnesses and other witnesses and dying declarations on record.
28. In the instant case, before the trial court an application was filed that the accused pei:_sons ought to have been charged under section 302 IPC instead of section 396 IPC which was rejected by the trial court Or) the ground that the accused per- sons were justifiably charged under section 396 IPC. In these s facts and circumstances, the Trial Court was justified in arriving at the correct conclusion that the accused were correctly charged under section 396 IPC and on the basis of Clear evi- dence on record, the accused personswere held guilty of the offence under section 396 IPC.
29. The evidence on record clearly reveals that the ac- cused persons entered the premises of the deceased Hiralal for committing dacoity. They had looted a licensed gun and other articles and in the process they had also killed Hiralal and Aidal Singh and injured Smt. Longshree and Chandan Gir.
30. On careful consideration of the entire evidef1ce on record, the following conclusions are inescapable: p i … 1 1. The impugned judgment of the High Court is based on total misreading of the evidence of the injured eye-witnesses .PW3 Chandan Giri and PW5 Smt. Longshree; 2. The High Court failed to appreciate that in this case, the test identificat.ion parade was not required since the accused were otherwise known to the witnesses. The conducting of test identification parade depends on the facts and circumstances of each case. 3. In the impugned judgment, the High Court ought to have considered the entire case in correct perspective of the small rural village background where most of the people know each other. They live in the vicinity. The test which may be relevant for metros or big cities cannot always be. applied to small rµral village settings. 4. The High Court in the impugned judgment has gravely STATE OF U.P. V. SUKHPAL SINGH AND ORS. [DALVEER BHANDARI, J.] erred in totally ignoring the dying declarations of A Hiralal and Aidal Singh, particularly when the dying declarations were recorded by the Magistrate. 5. The High Court erred in discarding the evidence of the injured eye-witnesses whose statement is consistent and corroborated by other evidence on , record.
31. The impugned judgment of the High Court is contrary t . . to the well settled legal principles which have been crystallized by a series of decisions of this court. In the latest pronounce- c ment of this court in. Ghure Lal v. State of U.P. (2008) 1 O sec 450, this court cempr.ehensively dealt with series of cases and clearly came to the conClusion ~s unde~: "A number of instances arise in which the appellate court . would have "very substantial and compelling reasons" to discard the trial court's decision. "Very substantial and compelling reasons" exist when: I) The trial court's conclusion with regard to the facts is palpably wrong; II) The trial court's decision was based on an erroneous view of law; Ill) The trial court's judgment is likely to result in "grave miscarriage of justice"; IV) The entire approach of the trial court in dealing with the evidence was patently illegal; V) The trial court's judgment was manifestly unjust and unreasonable; VI) The trial court has· ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/ report of the Ballistic expert, etc. (VII) This list is intended to be illustrative, not exhaustive."
32. In Ghurey Lal (supra), the court clearly observed that unless there are compelling reasons, the High Court should not set aside the judgment of the trial court. The High Court must always keep in view that the trial court had advantage of seeing the demeanour of the witnesses and, therefore, the conclusion· of the trial court should not be set aside in the light hearted (2009] 2 S.C.R. A manner. The court dealt with various cases and observed as c under: "The appellate court is given wide powers to review the evidence to come to its own conclusions. he appellate court may review the evidence in appeals against acquittal ,_ under Sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can_ reappreciate the entire evidence on record. It can review the trial court's conclusion with respect to bot~ facts and law. But this power must be exercised with great care and caution~"
33. Ordinarilythis court would have been very reluctant to interfere with the judgment of acquittal but in t_his case for very substantially and compelling reasons we are constraint to set 0 aside the impugned judgment of the High Court because the High Court totally misread the entire evidence on record.
34. On consideration of the totality of facts and circum- stances particularly evidence on record, the impugned judgment cannot be sustained and Is, consequent1y, set aside and the E judgment of the trial court is restored. Accordingly, the appeals are allowed.
35. The bail bonds of the respondents are cancelled. They- are directed to surrender forthwith to serve out the remaining sentence and if the accused-respondents do not surrender, in F that event, the State is directed to arrest the respondents and lodge them before the concerned jail to serve out the sentence. – RP. Appeals aUowed.