|Case||Balak Ram v State of UP, AIR 1974 SC 2165|
|Court||Supreme Court of India|
|Bench||H.R. Khanna and Y.V. Chandrachud JJ.|
|Author of the judgement||Y.V. Chandrachud J.|
|Decided on||16 Aug, 1974|
|Abstract||In the present case, shots were fired on Triveni Ben by Balak Ram on the instruction of other persons due to the matter of political rivalry. Three dying declarations were given by the victim. The present case deals with the correctness of the evidences and dying declaration taken into consideration by the High Court. It was held by the supreme court that the High Court has erred in accepting the evidences while the view taken by the trial court was found to be correct and thus upheld.|
|Author of the brief||Kunal Rawat|
|Keywords||Dying Declaration, Evidence, Corroboration, etc.|
Brief Facts –
Balak Ram was tried along with 5 other persons namely Nathoo, Kailash, Dr R.P Kohli, Mohd. Sayeed Khan and Mohd. Ahmed Khan for the murder of Triveni Sahai and his bodyguard Radhey. The incident happened due to a political rivalry for elections of Town Area Committee of Dataganj which was scheduled on 30 May 1971. On 24th May 1971 the District Magistrate of Badaun had promulgated an order under Section 144 of CrPC.
On 27 May 1971, a procession of about 20-25 persons led by Balak Ram while passing through the house of Triveni Sahai started raising offensive slogans against him which led to an exchange of hot words. Dr R.P Kohli, Mohd. Sayeed Khan and Mohd. Ahmed Khan who was also a part of procession exhorted Balak Ram to fire which led to the death of Triveni Sahai, Radhey and injuries to Jhilmili and Ram Prakash who came running to protest the incident.
An injured Triveni Sahai is said to have made three dying declarations.
- 1st to his friend Dharam Pal while he was injured on the scene.
- 2nd to SHO Yogendra Sharma while he was being carried to Hospital.
- 3rd to Sub-Divisional Magistrate Sada Ram while he was in Civil Hospital, Badaun.
In the all three dying declarations, he stated the same thing that the shot was fired on him by Balak Ram at the instigation of Dr R.P Kohli, Mohd. Ahmed Khan and Mohd. Sayeed Khan.
Contention of the Appellants –
- That the witnesses had given false evidence against them because they were either friends or relatives of Triveni Sahai, and
- Because of the pressure exerted on them by police at the instance of Triveni Sahai’s brother Radhey Shyam who was the DIG and Member of Vigilance Commission, U.P.
Sessions Court –
The Sessions Judge Came to the conclusion that the none of the eye witnesses could be relied upon as no independent corroboration was available to their testimony. The same view was taken about the dying declarations of Triveni Sahai. All others accused except Balak Ram were acquitted as it was proved that the bullet recovered from the body of Triveni Sahai was fired from Balak Ram’s pistol and he was convicted under section 337 read with section 149 of IPC and awarded him a death sentence.
High Court –
The High Court took the same view towards Balak Ram but took a different view towards the four other accused. Other witnesses Rajendra Kumar Mishra, was examined by the prosecution, who lodged the FIR and was a close relative of Triveni Sahai. Though his evidence could not be considered as an entirely independent witness by the High Court, his evidence was accepted by the reason that it corroborated with the FIR lodged by him.
The evidence of the Jhilmili and Ram Prakash was accepted as independent witnesses as they corroborated the evidence of Rajendra Kumar and the evidence of each other. The evidence of the other. The three dying declarations of Triveni Sahai were also accepted for the same reason. The High Court convicted Balak Ram, Nathoo, Dr R.P Kohli and Mohd. Sayeed Khan under section 301 and section 307 read with section 149 of IPC.
Issues before the Supreme Court
- Whether the High Court was justified in upholding the conviction of Balak Ram and sentence of death imposed on him by the Sessions Court?
- Whether the High Court was justified in interfering with the order of acquittal passed in favour of Nathoo, Dr Kohli and Mohd. Sayeed Khan?
Findings of the Supreme Court –
With regards to the three Dying Declarations, the Supreme Court held that –
- There was no mention of the first Dying Declaration being made to Ram Prakash by Jhlimili, Ram Prakash or Aryendra who were present at the scene of occurrence. The statement was recorded by the investigating officer six days after the incident had taken place.
- With regards to the second dying declaration it was held that even though there was enough time to record the dying declaration in the Case Diary, the signatures of Triveni Sahai or any witness in presence of whom it was recorded were not taken, which is mandatory as per Rule 115 of U.P. Police Regulations.
- While giving the third Dying Declaration he was a great shock and severe pain and it is difficult to believe that he was in a fit mental condition to give a proper statement. His statement does not have any evidentiary value as it was given in midst of his friends and could have been influenced by his friends.
- The high court has failed to look into the evidence of a witness whose statements were recorded under Section 164 with precaution. The sessions court was justified in rejecting the evidence and the High Court erroneously treated the witness an independent and held that they corroborated each other.
- The injuries of Jhilimili and Ram Prakash only establish their presence and not their truthfulness. Their name was not present in the FIR. Moreover, it is difficult to believe that no notice whatsoever was taken of their injuries and they were first taken to police station and later to hospital. It is difficult to believe the way in which Jhilmili was injured as she claimed to have jumped to the rescue of Triveni Sahai while the processionists were firing shots at him.
- There is criticism also involving Ram Prakash’s evidence as there were cases pending between Tribeni Sahai and Ram Prakash’s father and Ram Prakash has denied any knowledge as to whether the cases were pending or not. Hence, his evidence could not be accepted.
In criminal appeals the Supreme Court will not interfere with the concurrent findings of the fact except in special circumstances. On the facts held in the present case the concurrent findings of the fact did not justify any reversal of concurrent finding by the two courts that the shot fired by Balak Ram caused the death of Tribeni Sahai.
Whenever, a high court sets aside an order of acquittal, the supreme court in an appeal will only examine the evidence only if the High Court has failed to apply correctly the principles governing appeals against acquittal. If two views of an evidence are not possible then the high court ought not to interfere with the order of acquittal passes by the Trial Court. In this case clearly the two views of evidence were possible and hence, the High Court was not justified in interfering with the judgement of the acquittal.
Final Ruling –
The order of Conviction and sentence of Balak Ram was confirmed and the order of conviction and sentence passed by High Court against Nathoo, Dr. R.P. Kohli and Mohd. Sayeed Khan is set aside.