Arjun Murai vs State of U.P.

Vishnu Sahai, J.—Six persons, namely, Chhangu, Dularey, Aasrey, Anjore, Sankata Pasi and Arjun alias Arjun Murai were tried by the Additional Sessions Judge, Sultanpur, in Sessions Trial No. 195 of 97, for offences punishable under Sections 302/149 and 323/149, 1.P.C. In addition, Chhangu, Dularey, Aasrey and Anjorey were tried for the offence punishable u/s 148, l.P.C. and Arjun and Sankata for that punishable u/s 147, l.P.C. Vide judgment and order dated 19.8.2000, the learned Judge acquitted Chhangu, Dularey, Aasrey and Anjore on all the counts, but convicted and sentenced Arjun and Sankata in the manner stated hereinafter:

(i) u/s 302/149, I.P.C. to imprisonment for life and to pay a fine of Rs. 500 each ;

(ii) u/s 323/149, I.P.C. to six months'' S.I.; and

(iii) u/s 147, I.P.C. to six months'' S.I.

The sentences of Arjun and Sankata on all the counts were directed to run concurrently.

Aggrieved by their convictions and sentences, Arjun Murai and Sankata preferred in this Court Criminal Appeal Nos. 913 of 2000 and 147 of 2001 respectively; the latter having been sent from jail. While Criminal Appeal No. 147 of 2001 was pending in this Court. Mr. M. S. Khan, advocate was appointed as amicus curiae to appear on behalf of Appellant Sankata Pasi.

Since these two connected appeals arise out of a common factual matrix and impugned judgment we are disposing them of by one judgment.

Shortly stated, the prosecution case runs as under:

The informant Ms. Shanpati P.W. 1 is the wife of the deceased Babban. At the time of the incident, the informant, the deceased, the five injured, Mata Prasad, Mangru, Ms. Jagpati P.W. 2, Nathai and Doodhnath, as also the two Appellants Arjun Murai and Sankata and the four acquitted accused, Chhangu, Dularey, Aasrey and Anjore were living in village Karpiya, within the limits of police station Musafirkhana in district Sultanpur.

One day before the incident the pigs of the informant had grazed the field of acquitted accused Chhangu, resulting in Chhangu, Dularey, Anjorey and others abusing and assaulting the informant and others.

On 22.2.1997, at 8.30 p.m., the deceased Babban and his son Mata Prasad were warming themselves by the side of fire, which was burning at their door. When they were just about to eat their dinner acquitted accused Chhangu and Dularey armed with ballams and Aasrey and Anjorey armed with pharsas, along with Appellants Arjun and Sankata armed with lathies came and said that they were police informers and be killed. On that, the deceased Babban and Mata Prasad ran towards Garhi. The informant raising cries followed them. Hearing her cries, her brothers-in-law Doodbnath and Nathai, her mother-in-law Ms. Jagpati P.W. 2 and her father-in-law Mangru also ran. The Appellants and the acquitted accused assaulted Babban near the house of Santu. Acquitted accused who were armed with ballams first assaulted him with ballams in the normal manner, but the blows did not strike him. Thereafter they assaulted him with the blunt portion (lathi portion) of ballams. Similarly, acquitted accused who were armed with pharsas first assaulted him from the sharp side of pharsas but since the screw of pharsas was loose the blunt portion struck him. After assaulting Babban and others, the Appellants and the acquitted accused ran away. This incident was seen by the informant and others in moonlight and electric light.

Since during night the Appellants and the acquitted accused surrounded the house of the informant, she did not go to police station to lodge the F.I.R. In the morning she got the F.I.R. scribed by her nephew, who read it over to her. Thereafter she proceeded to police station Musafirkhana and lodged it.

The evidence of S.H.O., Bhullan Ram P. W. 4, in brief, shows thus:

On 23.2.1997, he was posted at police station, Musafirkhana. Head Constable Raja Ram Patel was posted along with him. He had seen him reading and writing. He prepared the chik F.I.R. and registered a case in the general diary.

It is pertinent to mention that a perusal of the chik F.I.R. shows that the F.I.R. was lodged on 23.2.1997 at 8.05 a.m. at police station Musafirkhana by Smt. Shanpati P.W. 1 and in the F.I.R. the two Appellants and the four acquitted accused are named. It is also pertinent to mention that on the basis of the F.I.R. offences punishable under Sections 147/148/149/324/302, I.P.C. were registered against the Appellants and the acquitted accused and the distance between the place of the incident and police station, Musafirkhana was nine kilometres.

The evidence of SHO Bhullan Ram further shows thus:

After the case had been registered in the general diary, he interrogated the informant and thereafter proceeded to the place of the incident, where he performed the inquest on the corpse of the deceased and prepared the site-plan. He seized from the place of the incident plain and blood stained earth in separate containers under a recovery memo. He thereafter recorded the statements of Mata Prasad, Mangru, Doodhnath, Nathai and Ms. Jagpati. On 24.2.1997, he arrested Appellant Arjun and on 3.3.1997Appellant Sankata and recovered from each of them lathies, which had blood marks. On 17.3.1997, after completing the investigation, he submitted the charge-sheet.

Going backwards, the injuries of Mata Prasad, Mangru, Ms. Jagpati, Nathai and Doodhnath were medically examined on 23.2,1997 at 12.10 p.m., 12.20 p.m., 12.30 p.m., 12.40 p.m. and 12.50 p.m. respectively by Dr. Taufiq Ahmad P.W. 3, Medical Officer, Primary Heath Centre, Musafirkhana, Sultanpur. Dr. Ahmad found the injuries mentioned herein-after on their person:

Mata Prasad: Two contusions ;

Mangru: One abrasion and two contusions ;

Ms. Jagpati: One contusion, which was accompanied by swelling ;

Nathai: One lacerated wound ; and

Doodhnath: One abrasion and two contusions.

In the opinion of Dr. Ahmad, excepting the lacerated wound suffered by Nathai, for which he had been advised x-ray, the remaining injuries suffered by the victims were simple in nature. It is pertinent to mention that no x-ray examination of Nathai was done.

In his statement in the trial court Dr. Ahmad stated that the injuries of all the victims were simple in nature and could have been caused by lathi and danda on 22.2.1997 at 8.00 p.m.

Once again going backwards, the autopsy on the corpse of deceased Babban was conducted on 24.2.1997 at 1.30 p.m. by Dr. V. Subhash Chand P.W. 5, who found on it seven lacerated wounds and one injury which has been described as fracture of left lower end of left ankle. It is pertinent to mention that five of the lacerated wounds were situated in the region of head.

On internal examination, the autopsy surgeon found fractures of parietal bone beneath injuries 3, 4 and 5 (all of them were lacerated wounds situated on the head) and brain lacerated.

The cause of death spelt out in the autopsy report was shock and haemorrhage on account of ante-mortem injuries suffered by the deceased.

It is pertinent to mention that in his statement in the trial court Dr. V. Subhash Chand stated that the main cause of death of the deceased were injuries 3, 4 and 5 ; the deceased could have died as a result of ante mortem injuries suffered by him on 22.2.1997 at 8.00 p.m.; and the said injuries were sufficient in the ordinary course of nature to cause death.

The case was committed to the Court of Sessions in the usual manner, where the Appellants and the acquitted accused were charged on counts mentioned in para 1. They pleaded not guilty to the charges and claimed to be tried.

During trial, in all, the prosecution examined five witnesses. Two of them, namely, Ms. Shanpati P.W. 1 and Ms. Jagpati P.W. 2, the widow and the mother of the deceased respectively, were examined as eye-witnesses. The learned trial Judge did not accept their evidence vis-a-vis accused Chhangu, Dularey, Aasrey and Anjore and consequently acquitted them on all the counts. He however accepted their evidence vis-a-vis Appellants and convicted and sentenced them in the manner stated in para 1.

Hence, these appeals.

We have heard learned Counsel for the parties and perused: the depositions of the prosecution witnesses; the material exhibits tendered and proved by the prosecution ; the statements of the Appellants recorded u/s 313, Cr. P.C. and the impugned judgment. In our view, these appeals deserve to be allowed.

It would become manifest from the above that the learned trial Judge has based the conviction of the Appellants on the ocular account furnished by Ms. Shanpati P.W. 1 and Ms. Jagpati P.W. 2. In our judgment, it would not be safe to accept their evidence vis-�-vis Appellants.

We now propose furnishing our reasons for reaching the said conclusion.

We would first like to take up the evidence of Ms. Shanpati P.W. 1, the widow of the deceased. Since in para-4 we have set out the prosecution story primarily on the basis of recitals contained in her examination-in-chief we do not want to burden our judgment by reiterating all the details. In short, her evidence shows:

There was enmity between the Appellants and the acquitted accused on one hand and the deceased on the other (in para-4 we have mentioned the cause of enmity). On the night of the incident, i.e., night of 22.2.1997, at about 8.30 p.m., her husband Babban and her son Mata Prasad were warming themselves by fire-side at the main door and when they were just about to eat their dinner the two Appellants armed with lathies, along with the four acquitted accused, out of whom Chhangu and Dularey were armed with ballams and Aasrey and Anjorey were armed with pharsas, came. They shouted that the deceased Babban be killed. Thereupon Babban and Mata Prasad ran. She raised cries and also ran. Hearing her cries, her brothers-in-law Doodhnath and Nathai, her mother-in-law Ms. Jagpati P.W. 2 and her father-in-law Mangru came. The Appellants and the acquitted accused assaulted them. Thereafter Babban ran and reached the house of Santu, where the Appellants and the four acquitted accused assaulted him. Those who were armed with ballams first tried to assault him with ballams in normal manner, but since the blows did not strike him they assaulted him with blunt portion of the ballams. Those who were armed with pharsas tried to assault Babban with the sharp side of pharsas but since the screw of the pharsas was loose the blunt side struck. After assaulting Babban and others, the Appellants ran away. At night on account of fear she did not go to lodge the F.I.R. Next morning she got the F.I.R. scribed by her nephew and then proceeded to police station Musafirkhana, where she lodged it.

We have gone through the statement of Smt. Shanpati and have no reservations in observing that it would be extremely unsafe to accept it.

In the first place, we find that in her F.I.R. she categorically stated that the acquitted accused who were armed with ballams and pharsas, belaboured the deceased Babban with the said weapons in the normal manner. However, since the autopsy surgeon did not find any punctured or incised injuries on the person of Babban, during trial she modulated her statement in terms that ballam was also used from the blunt side (lathi portion) and the blunt portion of pharsa struck him. In our judgment, had two persons with ballams and two with pharsas really assaulted the deceased Babban then there should have been at-least some punctured or incised injuries on the person of Babban. The absence of these injuries in our perception is a pointer to the fact that Ms. Shanpati did not see the incident.

Secondly, in her F.I.R. she categorically stated that while her husband Babban was eating dinner the Appellants and others came and belaboured him. If that was so, we would have expected the presence of undigested food in the stomach of the deceased. It is significant to mention that a perusal of the autopsy report of the deceased shows the complete-absence of undigested food in the stomach of the deceased. On the converse, it shows brown colour liquid 100 ml. On account of this circumstance Ms. Shanpati once again modulated her statement in the trial court in terms that while the deceased was about to eat but had not commenced eating he was assaulted. She made another improvement, namely, that half an hour before the incident the deceased had consumed some tea. The latter improvement, in our view, was made to explain the presence of 100 ml. of brown colour liquid in the stomach of the deceased.

The third reason as to why, in our judgment, the evidence of Ms. Shanpati is not credible is that her claim that the F.l.R. was lodged at 8.05 a.m. on the morning of 23.2.1997 does not inspire confidence. We say this because Ms. Jagpati P.W. 2, the mother-in-law of Ms. Shanpati during her cross-examination clearly admitted that before they could go to lodge the F.l.R. the Daroga had come at 8.00 a.m. In view of this statement it is manifest that the F.l.R.: (a) could not have been lodged at 8.05 a.m. on the morning of 23.2.1997; and (b) the F.I.R. is not the voluntary document prepared by Ms. Shanpati but has been concocted at the instance of the police.

When these three infirmities in the testimony of Ms, Shanpati are examined in the light of the fact that being the wife of the deceased she is an interested witness, it becomes extremely unsafe to accept her evidence.

For the said reasons, the evidence of Ms. Shanpati does not inspire any confidence.

We now take up the evidence of second eye-witness Ms. Jagpati P.W. 2. Since she has furnished the same manner of assault as her daughter-in-law Ms. Shanpati we do not want to burden our judgment by reiterating the details. In our view, her evidence does not inspire confidence for the reasons stated hereinafter:

Firstly, she stated that two of the acquitted accused assaulted the deceased with blunt portion of ballams and two with blunt portion of pharsas. In our judgment, this improvement has been made by her in order to bring her evidence in conformity with medical evidence because when she was confronted with her statement u/s 161, Cr. P.C., wherein she had not stated that ballams and pharsas were used from blunt side, she candidly admitted that she did not mention this fact to the Investigating Officer.

Secondly, as we have seen above, her statement clearly shows that the F.I.R. was lodged after the Daroga had come on the place of the incident.

In our judgment, when the aforesaid infirmities in her statement are examined in the background of the fact that being the mother of the deceased she is an interested witness it becomes extremely unsafe to accept her statement.

For the said reasons, the evidence of Ms. Jagpati also does not inspire confidence. We make no bones in observing that while reaching the said conclusion we are not oblivious to the fact that Ms. Jagpati is an injured witness. However, the time-honoured view of the Apex Court, as also of this Court, is that injuries only guarantee the presence of a witness but do not ensure his credibility. It is well-settled that the testimony of any witness, including that of an injured witness, can only be accepted if it is truthful (see para 16 of Vijai Shanker Misra and Ors. v. State 1984 ALJ 1316, and if it does not, as is the case here, then this Court would have no compunction in rejecting it.

Although Ms. Jagpati is an injured witness but as is manifest from above she has falsely implicated co-accused Chhangu and Dularey, to whom she assigns the use of ballams, and co-accused Aasrey and Anjorey, to whom she assigns the use of pharsas. And if she could falsely implicate them, there is no guarantee that she could not have falsely implicated the Appellants.

It is true that the principle falsus in uno falsus in omnibus is not a rule applicable to our country and Court should make every attempt to separate the grain from the chaff in the evidence of a witness, but this exercise can only be done where grain and chaff are severable and where they are not, as is the case here, the entire evidence of a witness goes (see para 8 of the decision of the Apex Court rendered in the case of Balaka Singh and Others Vs. The State of Punjab, wherein the aforesaid ratio has been laid down).

There are some other reasons, which have prompted us to hold that the prosecution has not established its case beyond reasonable doubt. We now propose enumerating them.

The first reason is that the chitthi majroobi (letter of request for medical examination) of victims Mata Prasad Ka-2, Ms. Jagpati Ka-4, and Nathai Ka-5 show below the signatures of Investigating Officer the date of 22.2.1997, i.e., the date on which the incident took place. This means that either the victims had reached the Police Station on the night of 22.2.1997 or the Daroga had come to the place of the incident on 22.2.1997.

Secondly, as we have seen while dealing with the evidence of Ms. Shanpati and Ms. Jagpati, the F.I.R. could not have been lodged at 8.05 a.m. on 23.2.1997, as deposed to by the former.

To us it appears that the incident did not take place in the manner alleged by the eye-witnesses. We feel that the deceased and the injured, who were his relations, were assaulted in darkness. It. Is pertinent to mention that the Investigating Officer SHO Bhullan Ram P.W. 4 in his cross-examination has stated that the deceased was a history-sheeter of police station Musafirkhana; his history sheet (being No. 130A) included 19 cases, including cases of dacoity, of preparation and attempt to dacoity.

We would be failing in our fairness if before proceeding to the operative part of the judgment we do not refer to the evidence of Investigating Officer SHO Bhullan Ram P.W. 4, who stated that on the lathies recovered from the Appellants there were blood marks. In our judgment, this recovery could have been an incriminating piece of evidence against the Appellants had the lathies been sent to the Chemical Analyst and Serologist and had they found blood and human blood respectively on them. In the instant case, no explanation has been furnished by Investigating Officer SHO Bhullan Ram for not sending them to the Chemical Analyst and Serologist. In such a situation, we feel it appropriate to draw the adverse legal inference provided by Section 114(g) of the Indian Evidence Act against the prosecution, which provision provides that evidence which could be produced and is not produced the presumption is that it would have gone against the party which withholds it. That apart, it is common knowledge that lathies are readily available and that being so, in our view, their recovery could have been planted by Investigating Officer SHO Bhullan Ram.

In the result:

A. Criminal Appeal No. 913 of 2000:

The appeal is allowed. The conviction and sentence of Appellant Arjun Murai on all the three counts, namely, under Sections 302/149, I.P.C., 323/149, I.P.C. and 147, I.P.C. is set aside and he is acquitted thereunder. He is on bail. He need not surrender. His bail bonds shall stand cancelled and sureties discharged.

B. Criminal Appeal No. 147 of 2001:

The appeal is allowed. The conviction and sentence of Appellant Sankata Pasi on all the three counts, namely, under Sections 302/149, I.P.C, 323/149, I.P.C. and 147, I.P.C. is set aside and he is acquitted thereunder. He is in jail and shall be released forthwith, unless wanted in some other case.

Before parting with the judgment, we would like to record our appreciation for the assistance rendered to us by Mr. M. S. Khan, advocate (amicus curiae in Criminal Appeal No. 147 of 2001).