RAJESH SINGH & ORS.versusSTATE OF U.P.

                        [2011) 3 S.C.R. 1070

A                     RAJESH SINGH & ORS.
                                   v.
                          STATE OF U.P.
                (Criminal Appeal No. 1160 of 2005)
                          MARCH 28, 2011
B
           [V.S. SIRPURKAR AND T.S. THAKUR, JJ.]

        CODE OF CRIMINAL PROCEDURE, 1973:

c      Appeal against acquittal - Scope of - Held: While
  upsetting the judgment of acquittal, the appellate court must
  show the perversity in the judgment of the trail court -
  Appellate court also must record the finding that the view taken
  by the trial court was not possible in law at all - In the instant
0 case, the judgment of the appellate court very clearly recora:.
  a finding that the acquittal recorded by the trial court was
  based on flimsy grounds and was wholly unjustified - High
  Court has given very good reasons to set aside the findings
  arrived at by the trial court - Penal Code, 1860 - s. 302134.
E       PENAL CODE, 1860:

       s. 302134 - Murder - An eleven year old boy beaten and
  hanged to death by three ccused - Acquittal by trial court -
  Conviction by High Court - Held: The evidence of eye-
F witnesses clearly established that the boy was beaten by three
  accused in public gaze - Thereafter the accused dragged the
  boy inside the room and when they opened the door and fled
  away, the boy was found hanged and dead - Medical
  evidence established that death was homicidal - It is clear
G that all the three accused had taken part in beating the victim
  and they all dragged him into the room and closed the door-
  It was for the accused to explain as to how the victim died - It
  is very clear that all the three accused had acted with
  common intention of causing the death - High Court rightly
H                               .1070
       RAJESH SINGH & ORS. v. STATE OF U.P.              1071

  convicted and sentenced them to imprisonment for life uls 302   A
   with the aid of s. 34 - The reasons given by trial court for
. acquittal are wholly unacceptable and can safely be called
  perverse - High Court having noted the defects in the
  judgment of the trial court and its casual approach, was
  justified in reversing the acquittal - Code of Criminal         B
  Procedures, 1973.

      The three accused-appellants (A-1, A-2, A-3) were
 prosecuted for causing death of an eleven year old boy.
 The prosecution case was that on the day of incident at          C
 about 5 PM, when PW-1 and his brother were going to
 have 'paan' at the 'paan' shop near Pico Centre,
 belonging to A-1, they saw the three accused beating the
 son. of PW-1. On being asked, the accused told that the
 boy had stolen some money. PW-1 requested the
 accused to spare the child but the accused dragged him           D
 inside the house and shut the door. PW-1 and others kept
 on shouting from outside. After about half an hour the
 three accused opened the door a.nd ran away. When PW-
 1 and others went inside, they saw the boy hung with a
 hook in the ceiling and he was dead. PW-1 informed the           E
 Police and lodged the FIR. The trail court acquitted the
 accused. However, the High Court convicted all the. three
 accused u/s 302/134 IPC and sentenced each of them to
 imprisonment for life.
                                                                  F
      Aggrieved, the accused filed the appeal.
      Dismissing the appeal, the Court
     HELD: 1.1. It is settled law that while dealing with the
 judgme11t of acquittal, unless the reasoning by the trial G
 court is fot..::id to be perverse, the acquittal cannot be
 upset; and thai vvhere two views are possible even then
 the judgment of acquittal should not be upset in the
 sense that the court while dealing with the judgment of
                                                              H
   1072    SUPREME COURT REPORTS                (2011] 3 S.C.R.

A acquittal must see as to whether the trial court has taken
  a possible view. [Para 7] [1079-B-C]
       1.2. It Is a well settled position and Is reiterated that
  while upsetting the judgment of acquittal, the appellate
  court must show the perversity in the judgment of the trial
8
  court and further the appellate court also must record the
  finding that the view taken by the trial court was not
  possible In law at all. [Para 8) [1079-D·E]

       1.3. In the Instant case, the appellate court's
C judgment very clearly records a finding that the acquittal
  recorded by the trial court was based on flimsy grounds
  and was wholly unjustified. The High Court hds also
  given very good reasons to set aside the findings arr-". yd
  at by the trial court. [Para 9) [1079-F-G]
D
       2.1. The first finding by the trial court was that the FIR
  was ante-timed on the ground that as per the evidence
  of PW-4, the Investigating Officer, the dead body of the
  deceased was dispatched from the spot after being
  sealed at 9 p.m. for the police lines. However, in the
E record of the police lines, it was shown to have been
  roe,ceived at 10 a.m. on 12.4.1993. Trial court also
  observed that there was no evidence offered by the
  prosecution to suggest that the special report of the
  crime was sent to the higher authorities. The High Court
F has found that the FIR was lodged by PW-1 on 11.4.93
  itself at 6.40 p.m. Thus, if the incident happened at about
  5 O'Clock in the evening, the recording of the FIR at 6.40
  p.m. in a police station which was 8 Kms. away from the
  spot of occurrence could not be said to be late reporting.
G The· High Court has also relied upon the evidence of PW-
  4. Merely because the copy of FIR was received in the
  office of the Circle Officer on 13.4.1993, It should not lead
  to the conclusion that the FIR was ante-timed. The High
   Court has also found that if the dead body reached the
H police lines late at mid night and If It was shown In the
     RAJESH SINGH & ORS. v. STATE OF U.P.              1073


record that it was received at 10 a.m. the following day, A
there was nothing significantly doubtful. Though the
timing is slightly irregular, that alone would not be
sufficient to reach a conclusion that the FIR was ante-
tiined . .This circumstance cannot be taken to be of such
a nature so as fO'lhrow the whole prosecution·story B
which was proved· by two eye witnesses, one. of them ...
being t'it:: ... ther of the boy. [Para 10 and 11) [1079-H;
1080-A-H]
     2.2. A close examination of PW-1, the father of the
deceased boy shows that he and his brother had gone C
near the Pico Centre to have paan. That pico centre was
in the house No. 128/22. According to this witness, he
saw crowd in front of the Pico centre and saw that three
accused were beating his 11 year old son. On being
asked, A-1 replied that the victim had stolen his money. D
This incident was seen by three other persons also.
However, in their presence, tt}e accused persons
dragged the victim inside the nearby house and shut the
door. It was after about half an hour that the accused
persons opened the door and fled away. When the E
witnesses entered the room, they found the victim
hanging with the rope and was dead. There was nothing
unnatural for the witness to choose his Paan shop and
merely because he did not go to the nearest Paan shop,
no fault could be found with the witness. Further, it has F
come in the evidence that the residence of PW-1 is hardly
300-350 steps away from the Pico Centre where the
incident was happening, therefore, to call this witness a
chance witness is a perversity. [Para 11 and 12] [1081-A-
F; 1082-G-H; 1083-A]                                      G
     2.3. The other reason given by the trial court was that
PW-2 was present at the time of writing the FIR and his
name was bound to have been mentioned in the FIR, but
it did not mention his name and, therefore, PW-2 also
appeared to be a chance witness. The trial court also          H
    1074    SUPREME COURT REPORTS               [2011] 3 S.C.R.


A observed that his claim that he saw the incident when he
    was going to fetch ice near the Pico centre was false, as
    "according to this witness, normally he drinks fresh water of
    hand pipe." The High Court has found this reasoning in
    respect of PW-2 to be perverse. PW-2 is a literate witness.
B He is MA LLB and had practiced law for two yee1rs. He
    also claimed that he knew and recognized the three
    accused persons. He had given a correct and graphic
    picture of what happened. It was really a matter of
    importance that there are no prevarications or inter se
c contradictions in the evidence of these witnesses. He has
    also given the correct picture of what each accused was
    doing. It was to be realized that PW-1, the author of the
    FIR had seen his son being killed by three bullies of the
    locality. Under these circumstances, to expect each and
0 . every detail including the names of the witnesses, would
    be totally unnatural when both these witnesses faced
    their cross examination extremely well. There was
    nothing brought in their cross examination which could
    falsify their claim of having seen the ghastly incident.
E [Para 12-13] [1082-G-H; 1083-A-G]
       2.4. The trial court has also found fault with the fact
  that none of the witnesses tried to stop the accused
  persons whe,n they fled. That is hardly any reason to dis-
  believe the prosecution case. One of the accused
F persons was already facing a murder case. PW-1 has also
  spoken about that. It should be seen that the accused
  were viewed as bullies and, therefore, nobody might have
  tried to apprehend them. Further, the trial court has found
  fault with the fact that the other witnesses like 'SK' was
G not examined. That would be hardly a circumstance in
  favour of the defence, particularly, when the two other
  witnesses were offered. It is not the quantity but the
  quality of the evidence which matters. After perusing the
  whole evidence, this Court is convinced that the
H
           ••
     RAJESH·SINGH & ORS. v. STATE OF U.P.            1075


approach, of the ttial'court, while appreciating the        A,
evidence of the two eye witnesses was extremely
perverse. [Para 14-15) [1084-F-H; 1085-A-B]
     .2.5. The trial court did not take into consideration the
evidence of the doctor who wholeheartedly supP,orted
the. prosecution case. It. is obvious from, the post-mortem B
report that there were ante-mortem injuries. The injuries
desc~·;i.Jed were also serious injuries for an 11 year· old
child ...His· byoid bone was also found fractured.
There;fore;.the
             ' fact that death. of the.
                                         victim was. homicidal
death was obvious. He had suffered the contusion on. the C
back of left side below s(:apula and contusion on back
of legs belQW knee ,etc. which were in perfect unison with
the evidence of the·two eye witnesses. The High Court
has taken ncite of the medical evidence in a correct
manner. At least the injuries of the deceased read with D
the evidence by the eye\witnesses should have put the
trial court on guard. The trial court had acquitted the
accused· persons in a very casual manner. [Para 16]
[1085-B-E]
     2.6. The most important circumstance in this case is E
the recovery of the dead body from the house of one of
the accused persons. It is clear that all the three accused
persons had taken part in the beating of the victim and
all the accused persons dragged him in the room and
closed the door. Therefore, it was up to the accused F
persons to explain as to how the victim died. There was
absolutely no explanation from the accused persons,
more particularly, A-1, as to how the body was found in
a hanging position in the house of one of the accused.
All the witnesses are unanimous on the point that all the G
three accused persons went inside the house dragging
the victim with them. This important circumstance was
completely lost sight of by the trial court. That also can
be said to, be a perversity on the part of the trial court.
[Para 17 and 18] [1085-G-H; 1086-A~C]                       H
    1076   SUPREME COURT REPORTS                 (2011] 3 S.C.R.


A      2.7. After examining the evidence closely, this court
  is of the firm opinion that the acquittal In this case was
  completely out of the question. It is very clear that all the
  three accused persons had acted with common Intention
  of causing the death and, therefore, the High Court has
8 rightly held them guilty with the aid of s. 34, IPC. The
  reasoning given by the trial court was wholly
  unacceptable and can safely be called perverse. The
  High Court having noted these defects in the judgment
  of the trial court and the casual approach of the trial court
C was justified in reversing the acquittal. [Para 18 and 19]
  [1086-B-D]
        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 1160 of 2005.
       From the Judgment & Order dated 4.4.2005 of the High
D Court of Judicature at Allahabad in Criminal Appeal No. 1554
  of 1998.
        Sanjay Jain for the Appellants.
E       R.K. Dash, Pradeep Misra, Suraj Singh for the
    Respondent.
        The Judgment of the Court was delivered by
       V.S. SIRPURKAR, J. 1. The judgment passed by the High
F Court allowing the appeal against acquittal and convicting the
  appellant for the offence under Section 302 read with Section
  34, IPC is in challenge in this appeal.
      2. The three appellants, Rajesh Singh (accused No. 1),
  Najai Srivastav (accused No.2} and Mohan Singh (accused
G No.3) came to be tried by the trial Court on the allegation that
  they had committed murder of a young boy Deepak on
  11.4.1993 in the evening at about 5 O'Clock. Deceased
  Deepak was the son of Virendra Kumar (PW-1). Virendra
  Kumar (PW-1) was a lawyer's clerk. When he and his brother
H S.K. Srivastav, an advocate, were going for having 'paan' at
      RAJESH SINGH & ORS. v. STATE OF U.P.               1077
              [V.S. SIRPURKAR, J.]
the paan shop near Pico centre belonging to accused No.1, . A
Rajesh; they saw that the three accused persons were beating
Deepak. Deepak was made to take the posture like a cock
(murga} and two bricks were kept on his back. Rajesh ·was
hitting him with those bricks and the hands and feet of the boy
had been tied and accused Najai was hitting him with a can, B
When Virendra Kumar (PW-1) asked as to why his son was
being beaten, it was told that Deepak had stolen some money.
Virendra Kumar (PW-1} requested the accused persons to let
the child go as they had already beaten him severely. However,
Rajesh refused to leave him and threatened that if he does not c
go he would also be assaulted. This incident was seen by some
others also. On this Virendra Kumar (PW-1) said that he would
inform the police but waited. All the three accused persons
dragged Deepak to house No.128/21, C-Block, Kidwai Nagar,
Kanpur which was the house of accused No.3, Mohan Singh. D
They confined him inside and shut the door. Virendra Kumar
(PW-1) and others kept on shouting from outside. After about
half an hour, the three accused persons ran away. When
Virendra Kumar {PW-1) and others went inside they saw that
the boy was hung with a hook in the ceiling. His feet were E
dangling at the height .of 4-5 feet from the floor and he was
dead. Vlrendra Kumar (PW-1) then informed the police by
lodging an FIR.

     3. The investigation was taken up by Chandra Shekhar
Yadav (PW-4). He reached the spot, did the necessary F
formalities and sent the body for autopsy. As many as five ante-
mortem injuries were found on the dead body during the post-
mortem which was conducted by Dr. Jugal Kishore Sharma
(PW-3). These injuries were in the nature of large abraded
contusions. On internal examination his hyoid bone was found G
fractured. As per the opinion expressed, the boy died due to
asphyxia as a result of throttling. After the investigation, charge
sheet was filed. The prosecution examined Virendra Kun;iar
{PW-1), Shyam Ji Pandey {PW-2) as eye-witnesses while Dr.
Jugal Kishre Sharma who had conducted autopsy on the dead H
    1078    SUPREME COURT REPORTS                   [2011] 3 S.C.R.

A body of deceased was examined as PW-3. In addition to this,
  police witnesses were also examined. The accused abjured the-
  guilt. The trial Court, however, acquitted the accused persons
  dis-believing the eye witnesses and held that their presence
  was doubtful. He also held that the conduct of Virendra Kumar
B (PW-1) was unnatural. The trial Court also observed that the
  prosecution had failed to examine S.K. Srivastav advocate,
  another eye witness.
      4. The State filed an appeal against this judgment and the
C High Court allowed the appeal convicting the three accused
  persons of the offence under Section 302 read with Section 34,
  IPC. That is how the appeal has come before us.
       5. It was vehemently argued by Shri Sanjay Jain, learned
  counsel for the appellants that this was a case where the
D medical evidence was contradictory with the evidence of eye
  witnesses. He also pointed out that the trial Court had given
  sound reasons and the High Court had not exercised the
  caution while upsetting the finding of acquittal handed out by
  the trial Court. The learned counsel also urged that it not was
E found that the judgment of the trial Court was perverse and the
  inferences were not possible at all. The appellate Court could
  not have upset the judgment and convicted the accused                  !


  persons. We were also taken through the evidence of the
  witnesses which was severely criticized by the learned counsel. I
F Lastly, the learned counsel claimed that all the accused persons
  could not be held guilty, particularly, when it was not certain as
  to which accused had caused the murder by throttling deceased
  Deepak.
       6. As regards this, the learned Senior Counsel appearing
G on behalf of the State supported the judgment passed by the
  High Co.urt and pointed out that this was the mostJoul murder
  and the reasoning given by the trial Court was extremely
  perverse. Shri R.K. Dash, learned Senior Counsel pointed out
  by reference to the judgment of the trial Court that the trial Court
H was extremely casual in appreciating the evidence and had
       RAJESH SINGH & ORS. v. STATE OF U.P.                 1079
               [V.S. SIRPURKAR, J.]
rejected the important ev.idence of the eye witnesses for no         A
reasons.
      7. On this backdrop, it is to be seen whether the appellate
Court was right in convicting the accused persons. There can
be no dispute about the principles which are now more or less
                                                                    8
settled while dealing with the judgment of acquittal. There can
be no dispute with the proposition argued by Shri Jain that
unless the reasoning by the trial Court is found to be perverse,
the acquittal cannot be upset. There can also be no dispute of
the other proposition argued by Shri Jain that where two views C
are possible even then the judgment of acquittal should not be
upset in the sense that the Court while dealing with the judgment .
of acquittal must see as to whether the trial Court has taken a
possible view.

       8. It is a well settled position now and we reiterate the     D
'same that while upsetting the judgment of acquittal, the
 appellate Court must show -the perversity in the judgment of the
 trial Court and the appellate Court's judgment must show that
 the Court was alive to the fact that it was dealing with the
 judgment of acquittal and further the appellate Court also must     E
 record the finding that the view taken by the trial Court was not
 possible in law at all ..
      9. Testing the judgment from these angles, it has to be said
that the appellate Court's judgment very clearly records a finding   F
that the acquittal recorded by the trial Court was based on flimsy
grounds and was wholly unjustified. The High Court. has also
considered the benefit of doubt awarded by the trial Court and
has observed that it should not become a fetish. The High Court
has also given very good reasons to set aside the findings
arrived at by the trial Court.                                       G
    10. The first such finding by the trial Court was that the FIR
was ante-timed on the ground that as per the evidence of
Chandra Shekhar Yadav {PW-4), the investigating officer, the
dead body of deceased Deepak was dispatched from the spot            H
    1080    SUPREME COURT REPORTS                 [2011) 3 S.C.R.

A after being sealed at 9 p.m. for the police lines. However, in
  the record of the police lines, it was shown to have received at
  10 a.m. on 12.4. 1993. The FIR was also criticized by the trial
  Court and the defence counsel here on the ground that there
  was no evidence offered by the prosecution to suggest that the
B special report of the crime was sent to the higher authorities.
  The High Court has found that this criticism was not justified.
  The High Court has given the reasoning that the FIR was lodged
  by the witness Virendra Kumar (PW-1) on 11.4.93 itself at 6.40
  p.m. Thus, if the incident happened at about 5 O'Clock in the
c evening, the recording of the FIR at 6.40 p.m. in a police station
  which was 8 Kms. away from the spot of occurrence could not
  be said to be late reporting. The High Court has also relied upon
  the evidence of Chandra Shekhar Yadav (PW-4) that the FIR
  had been lodged in the police station when he was not present
  there and he was informed about it only on wireless and,
0
  therefore, he happened to reach the spot directly with ASI and
  started the investigation of the case and was busy there in
  drawing of Panchnama etc. right up to 11 p.m. and merely
  because the copy of FIR was received in the office of the
  circular officer on 13.4.1993, it should not lead to the conclusion
E that the FIR was ante-timed. The High Court has also found that
  if the dead body reached the police lines late at mid night and
  if it was shown in the record that it was received at 10 a.m. on
   12.4.93, there was nothing significantly doubtful. We have also
  gone through the record as well as the evidence of the
F investigating officer Chandra Shekhar Yadav (PW-4) and
  though the timing is slightly irregular, that alone would not be
  sufficient to reach a conclusion that the FIR was ante-timed. ,
  After all nothing was going to be gained by the prosecution by
  ante-timing the FIR. Had the FIR been ante-timed, the
G Panchnama could not have been commenced at 7.30 p.m. We
  do not find any significant cross examination of the Panchas
  and the police officers, particularly, on the aspect of timing
  thereof. We do not find this circumstance to be of such a nature
   so as to throw the whole prosecution story which was proved
H by two eye witnesses, one of them being the father of the boy.
      RAJESH SINGH & ORS. v. STATE OF U.P.                 1081
              [V.S. SIRPURKAR, J.]
     11. The learned counsel severely criticized the evidence       A
of Virendra Kumar (PW-1) on the ground that the behaviour of
Virendra Kumar (PW-1) was extremely unnatural and that his
presence on the spot was extremely doubtful. We have seen
the evidence of Virendra Kumar (PW-1) very closely. We have
also seen the reasons given by the trial Court for rejecting his    B
evidence. According to this witness, he and his brother S.K.
Srivastav had gone near Rajesh Pico Centre to have paan. That
pico centre was in the house of 128/22, C-Block, Kidwai Nagar,
Kanpur. According to this witness, he saw crowd in front of the
Rajesh Pico centre and saw that three accused beating his     n c
year old son. He was made to take posture of a cock (murga)
and he was being hit by accused Najai with a can. While Rajesh
was pressing bricks and Mohan was slapping his son which
he did twice. On being asked, the accused Rajesh replied that
Deepak had stolen his money and even after requests by the          0
witness, Deepak was· not being released and, therefore,
Virendra Kumar (PW-1) made hue and cry that the would inform
th~ police. This incident was seen by Brij Bhan Singh, Shyam
Ji Pandey and Dinesh Kumar also. However, in their presence,
the accused persons dragged Deepak inside the nearby house
at 128/22, C-Block, Kidwai Nagar, Kanpur and shut the outside       E
door. It was after about half an hour that the accused persons
opened the door and the three accused persons fled away
towards a square known as Chalis Dookan Chauraha. When
the witnesses entered the room, they found Deepak was
hanging with the rope and was dead. His legs were dangling          F
at 4-5 feet above the floor. It Was on this basis that the First
Information Report was given in their hand writing after it was
prepared. The trial Court then noted the topography of the area
as also the houses of the witnesses. Thereafter, the trial Court
observed that there were 3-4 paan shops including one Pandit        G
Ji's Paan shop. The trial Court also note<;i that the witness did
not have paan at Pandit Ji's Paan shop and proceeded towards
the paan shop which was near the shop of the accused Rajesh.
The trial Court also noted that there were about 100-150
                                                                    H
       1082    SUPREME COURT REPORTS                   [2011] 3 S.C.R.

  A persons gathered when the door was shut by the ·accused
     persons and that when the accused persons escaped by
     opening the door nobody tried to catch them. He also noted
     that this witness had taken the name of Shyam. Ji Pandey to
     be present in the crowd. While considering the evidence of this
  B. witness, who was an eye witness and father of the unfortunate
     boy, the trial Court held that Virendra Kumar (PW-1) and Dinesh
     Kumar who were the clerks of the advocate as also SK
     Srivastav the brother of Virendra Kumar (PW-1) and Shyam Ji
     Pandey who himself was an advocate were residents of
  c different places. The trial Court then observed:
                 "the presence of many advocates and clerks is
           natural in the court but the presence of these four at the
           spot of occurrence on a holiday does not seem more
           probable."
  D
           The trial Court then further observed:
                  "the betel shop of Pandit Ji is situated near the house
           of witness Virendra Kumar (PW-1) before Pico centre but
           witness did not eat the betel on the aforesaid shop but
  E
           came to eat betel near Pico centre where the incident was
           happening. These circumstances make the presence of
           this witness on the spot of occurrence at the time of
           incident doubtful and this witness appears to be a chance
           witness."
  F
          12. It is on the basis of this that the trial Court has dis-
    believed the evidence of Virendra Kumar (PW-1). We do not
    find any other reason having been given to dis-believe his
    evidence. That we are surprised by this finding would be an
· G understatement. There was nothing unnatural for the witness to
    choose his Paan shop and merely because he did not go to
    ttie nearest Paan shop, no fault could be found with the witness.
    Further, it has come in the evidence that the residence of
    Virendra Kumar (PW~1) is hardly 300-350 steps away from the
  H Pico centre where the incident was happening, therefore, to call
     RAJESH SINGH & ORS. v. STATE OF U.P.                  1083
           , [V.S. SIRPURKAR, J.]    ,
this witness a chance witness is a perversity. The High Court A
has noted this perversity and has adversely commented on the
finding reached by the trial Court: The other reason given by
the trial Court was that ,one Shyam Ji Pandey was present at.
the time of writing the FIR and his name was bound to have
been mentioned in the FIR, but it did not mention the name of . s
Shyam Ji Pandey and, therefore, Shyam. Ji Pandey also
appeared to be a chance witness. As regards Shyam Ji
Pandey, the Sessions Judge said that his claim that he saw
the incident when he was going to fetch ice near the Pico centre
was obviously false and the trial Court has mentioned "according c
to this witness, normally he drinks fresh water of hand pipe.
The incident is of 11th April at 5 p.m. At that time it is not hot
worth drinking cold water especially when the witness used to
drink hand pipe water daily."
      13. Again, this reason for rejecting the evidence of Shyam D
Ji Pandey, to say the least, is perverse. There is no law saying
that merely because one is used to drink water from hand pipe,
he should not purchase ice. The High Court has found this
reasoning in respect of Shyam Ji Pandey to be perverse. Again
the Sessions Judge 'found that Shyam Ji Pandey who was E
present was not mentioned in the FIR. It was boun'cl to be
realized that Virendra Kumar (PW-1), the author of the FIR had
seen his own son being killed by three bullies of the locality. It
has also come in the evidence that accused No.1, Rajesh was
already facing a murder case and was on bail. Under these F
circumstances, to expect each and every detail including ·the
names of the witnesses, would be totally unnatural when both
these witnesses faced their cross examination extremely well.
There was nothing brought in their cross examination whi,ch
could falsify their claim of having seen the ghastly incident.     G
      14. It is true that the others like the brother of Virendra
Kumar (PW-1) did not step into the witness box but that by itself
will not make the evidence of two witnesses suspect in any
manner. The witness was candid enough to say that he did not        H
have any enmity with accused Mohan and he had heard that
    1084    SUPREME COURT REPORTS                 [2011] 3 S.C.R.

A he was being tried under Section 302, Indian Penal Code. He
  was also candid enough to say that accused Mohan and
  accused Najai had not raised any accusation against deceased
  Deepak that he had stolen their belongings. It has come in his
  cross examination that when he was requesting the accused
8 persons to spare his son, Brij Bhan Singh, Shyam Ji Pandey
  and Dinesh reached there on hearing the shouts thereby the
  presence of Shyam Ji Pandey was thoroughly established by
  him in his cross examination itself. In his cross examination, he
  gave a graphic description of what each accused was doing
c while beating Deepak. The tenor of his evidence was natural
  and even after closely examining the evidence we also feel like
  the High Court that the Sessions Judge was in error in rejecting
  the evidence on flimsy grounds. Same is true of the evidence
  of Shyam Ji Pandey and excepting that Shyam Ji Pandey was
  not expected to purchase ice and for that purpose come out
D on the spot, nothing has been found inconsistent with the
  evidence of Virendra Kumar (PW-1). Shyam Ji Pandey Is a
  literate witness. He is MA LLB and had practiced law for two
  years. He also claimed that he knew and recognized the three
  accused persons. He had given a correct and graphic picture
E of what happened. Much of his cross examination was on the
  fringes without confronting him with any inconsistencies. It was
  really a matter of importance that there are no prevarications
  or inter se contradictions in the evidence of these witnesses.
  He has also given the correct picture of what each accused
F was doing. After seeing the whole evidence, we are convinced
  that the approach of the Sessions Judge, while appreciating
  the evidence of these two eye witnesses was extremely
  perverse. The trial Court has also found fault with the fact that
  none of the witnesses tried to stop the accused persons when
G they fled. That is hardly any reason to dis-believe the
  prosecution· case. One of the accused persons was already
  facing a murder case. The witness Virendra Kumar (PW-1) has
  also spoken about that. It should be seen that the accused were
  viewed as bullies and, therefore, nobody might have tried to
H apprehend them.
       RAJESH SINGH & ORS. v. STATE OF U.P.                  1085
               [V.S. SIRPURKAR, J.]

     15. Further the trial Court has found fault with the fact that   A
the other witnesses like Shiv Kumar was not examined. That
would be hardly a circumstance in favour of the defence,
particularly, when the two other witnesses were offered. It is not
the quantity but the quality of the evidence which matters.
                                                                      B
     1(). The Sessions Judge did not take into consideration
the evidence of the doctor who wholeheartedly supported the
prosecution case. It is obvious from the post-mortem report that
there were ante-mortem injuries. There were 10 abraded
contusions on both sides of neck in front and just below chin.        C
The injuries described were also serious injuries for an 11 year
old child. His hyoid bone was also found fractured. Therefore,
the fact that Deepak's death was homicidal death was obvious.
He had suffered the contusion on the back of left side below
scapula and contusion on back of legs below knee etc. which
were in perfect unison with the evidence of the two eye               D
witnesses. The High Court has taken note of the medical
evidence in a correct manner. At least the injuries of the
deceased read with the evidence by the eye witnesses should
have put the trial Court on guard. We must say that the trial
Court had acquitted the accused persons in a very casual              E
manner.

      17. The most important circumstance in this case is the
finding of the dead body in the house of one of the accused
persons. Surely, the dead body could not have walked inside           F
the house of the accused person. There was absolutely no
explanation from the accused persons, more particularly,
accused Rajesh as to how the body was found in a hanging
position in the house of one of the accused. All the witnesses
are u•. Jnimous on the point that all the three accused persons       G
went ins•:ie the house dragging Deepak with them. This
important circ..:-:istancewas completely lost sight of by the trial
Court. That also can be said to be a perversity on the part of
the trial Court.
     18. As regards the argument of k.. ..Arned counsel for the       H
    1086    SUPREME COURT REPORTS                   [2011) 3 S.C.R.

A defence that it was not certain as to which accused actually
  caused the murder and, therefore, all the three accused
  persons were bound to be given the benefit of doubt, it has to
  be said that the argument is without any substance. It is clear
  that all the three accused persons had taken part in the beating
B of deceased Deepak and all the accused persons dragged him
  in the room and closed the door. Therefore, it was up to the
  accused persons to explain as to how Deepak died. It is very
  clear that all the three accused persons had acted with common
  intention of causing the death and, therefore, all the three
c accused persons would be guilty with the aid of Section 34,
   IPC. The High Court has rightly held them guilty.

        19. In short, after examining the evidence closely, we are
  of the firm opinion that the acquittal in this case was completP.ly
  out of the question. The reasoning given by the trial Cou1 • .vas
D wholly unacceptable and can safely be called perverse. The
  High Court having noted these defects in the judgment of the
  trial Court and the casual approach of the trial Court was
  justified in reversing the acquittal. In our opinion, the appeal has
  no merits and must be dismissed. It is accordingly dismissed.
E
    R.P.                                         Appeal dismissed.