Fateh Singh and Others vs State

M.C. Jain, J.—Eight Appellants, namely, (1) Fateh Singh, (2) Ram Chander, (3) Brahma, (4) Satvir, (5) Ram Saran, (6) Harbir, (7) Pratap and (8) Genda have preferred this appeal against the judgment and order dated 5.12.1979 passed by Sri S. P. Agarwal, the then v. Ith Additional Sessions Judge, Meerut in Sessions Trial No. 70 of 1978. All the Appellants have been convicted u/s 302 read with Section 149, I.P.C. and sentenced to life imprisonment. The Appellants Ram Saran, Satbir and Harvir have further been convicted u/s 148, I.P.C. and sentenced to two years'' rigorous imprisonment. The accused Appellants Fateh Singh, Genda, Pratap, Brahma and Ram Chander have also been convicted u/s 147, I.P.C. and sentenced to one year''s rigorous imprisonment. All the sentences have been ordered to run concurrently.

Out of the eight Appellants, Appellant No. 1 Fateh Singh is reported to be dead as per report of the Chief Judicial Magistrate, Meerut, dated 17.11.1997. The appeal, therefore, has abated so far as he is concerned and presently the Court is concerned with the remaining seven Appellants.

The murder of one Hari Dutt Singh is involved in this case which was allegedly committed by all the eight Appellants on 31.10.1977 at about 4 p.m. in the jungle of village Ahmadpuri, P.S. Parikshatgarh, District Meerut. The report was lodged the same day by Mahendra Singh P.W. 1 (son of the deceased) an eye-witness at 5.30 p.m. The distance of the police station from the place of occurrence was 4 miles. All the Appellants were named in the F.I.R. as the culprits.

The parties are interrelated. The deceased Hari Dutt Singh had two brothers Kaley and Shiv Charan. Appellant Ram Saran is the son of Kaley whereas Appellant Harbir is the son of Ram Saran. Appellants Ram Chander and Brahma are brothers being the sons of Shiv Charan and Satbir is the son of Ram Chander. Appellant Pratap being the resident of another village Khirkee, P.S. Mawana, is the brother-in-law (sala) of Ram Chander. Appellant Genda, being the resident of village Nawal, P.S. Kithor happens to be the samdhi of Ram Saran. Fateh Singh Appellant is the khandani uncle of Mahendra Singh P.W. 1.

The background of the incident was rooted in the murder of Mahabir son of Ram Saran in 1976. For that murder, Hari Dutt Singh deceased and his son Mahendra Singh P.W. 1 were facing trial when the incident took place.

There was a criminal case u/s 420, I.P.C. filed by one Smt. Sammo which was pending against Hari Dutt Singh deceased and his son Mahendra Singh P.W. 1 in the Court of a Magistrate at Meerut and the fateful day (31.10.1977) was the date fixed in that case. Hari Dutt Singh deceased and Mahendra Singh P.W. 1 had come to attend the proceedings of that case but that was adjourned at about 12 O''clock in the noon with the result that Hari Dutt Singh deceased and his son Mahendra Singh P.W. 1 had returned by bus. After getting down at Parikshatgarh, they started for their village Ahmadpuri on foot. At about 4 p.m . both of them reached on the road running in between the fields of Balley and Muley. Mahendra Singh P.W. 1 was about 20 paces ahead of his father. All the Appellants came out from the sugar cane field of Balley and grappling with Hari Dutt Singh downed him. Satvir, Ram Saran and Harbir were armed with knives with which they inflicted knife injuries on Hari Dutt Singh at the instigation of the Appellant Ram Chander that the murder of Mahabir be avenged by cutting short the life of Hari Dutt Singh. On shouts being raised by Mahendra Singh P.W. 1, witnesses Bakhtawar Singh P.W. 2, Ganga Saran P.W. 3, Gajraj, etc., were attracted to the place of occurrence who also raised alarm. The Appellants then escaped in the field of Balley after murdering Hari Dutt Singh. Mahendra Singh P.W. 1 got scribed the report by Jasbir Singh and took the same to the police station where it was lodged resulting in the registering of the case and investigation thereafter. The instigation was taken up by A.S.I. Satpal Singh P.W. 6 and was thereafter by S.O. Brijendra Singh Chahar P.W. 7.

The post-mortem over the dead body of the deceased was conducted by Dr. O. P. Sharma P.W. 3 on 1.11.1977 at 5. p.m. The deceased was aged about 65 years and about one day had passed since he died. The following ante-mortem injuries were found on his person:

(1) Stab wound 13 cm. - 5 cm. - abdominal cavity deep on the front of abdomen right side upper part just below the coastal margin transversely, inner end of the wound was a little above and outer to the umbilicus.

(2) Stab wound 11 cm. - 5 cm. - abdominal cavity deep on the left side of abdomen 2 cm. below the coastal margin transversely.

(3) Stab wound 5 cm. - 1 cm. - abdominal cavity deep on the front of abdomen just below the umbilicus transversely.

(4) Incised wound 1-1/2 cm. - .5 cm. - muscle deep on the front of abdomen right side just below the anterior superior iliac spine.

(5) Incised wound 9 cm. - .5 cm. - trachea cut on the front of neck middle extending on both sides transversely.

(6) Abrasion 1 cm. - 1 cm. on the back of left elbow.

On internal examination, small intestines were found stabbed at two places and large intestines stabbed at one place. Left lobe of liver was also stabbed. The death had occurred due to shock and haemorrhage as a result of ante-mortem injuries.

The defence was of denial and false implication due to enmity.

The prosecution, in all produced seven witnesses out of whom the eye-witnesses were Mahendra Singh P.W. 1, Bakhtawar Singh P.W. 2 and Ganga Saran P.W. 4. The rest were Doctor, Investigating Officer, etc.

We have heard Sri P. N. Mishra, learned senior advocate on behalf of the Appellants and learned A.G.A. from the side of State in opposition of the appeal. We propose to deal with the different aspects of the case keeping in view the arguments advanced at the bar and the evidence adduced in the case. The record of the lower court has been summoned before us, which has been perused.

To begin with, we agree with Sri P. N. Misra, learned Counsel for the Appellants that the motive was equal on both the sides on the basis of which either the accused could commit this crime or the prosecution side could falsely implicate them. The background was that Mahabir son of accused Ram Saran was murdered in 1976 for which Hari Dutt Singh deceased and his son Mahendra Singh P.W. 1 were also the accused and that murder trial was pending when the present incident of murder of Hari Dutt Singh took place. Therefore, the evidence on record has to be scrutinized with caution.

It has been argued by the learned Counsel for the Appellants that as per the own case of the prosecution, the accused were inimically disposed against Mahendra Singh P.W. 1 and Ganga Saran P.W. 4 because they were also facing trial for the murder of Mahabir son of the accused Ram Saran and as such they would not have been spared unharmed by the accused if they were really present at the spot and had witnessed the incident. True, they were also the accused for the murder of Mahabir, but the factum of their having not been assaulted by the accused cannot be a ground to discard their otherwise confidence-inspiring testimony. Both of them as well as deceased Hari Dutt were unarmed. Three of the accused were armed with knives. Had these witnesses physically intervened to save the deceased, they were also bound to receive severe injuries at the hands of the assailants without being able to offer any meaningful resistance to them. Besides, it goes without saying that instinct of self-preservation is strongest in all living beings. Further, Mahendra Singh P.W. 1 was at a distance of about 20 paces from his father and beyond easy reach of the assailants. Though watching the incident, he could not be expected to voluntarily be the prey of the assailants, his sworn-enemies, risking his own life too. The same reasoning is applicable to Ganga Saran P.W. 4 also who has explained that at the time of the incident, he was going to take cattle fodder from his field situate in western side at a distance of about 2 furlongs. He had reached near the school when he had heard the noise of Mahendra Singh P.W. 1 that his father be saved. Then he had rushed to that side and seen the incident in between the fields of Balley and Muley on the kharanja where Hari Dutt Singh had been murdered by the accused. He has given plausible explanation for his presence at the spot. So far as Mahendra Singh P.W. 1 is concerned, he and his father Hari Dutt Singh were returning after attending a case in the Court. They had got down from bus at Parikshatgarh wherefrom he and his father were going to the village on foot. The criticism of the learned Counsel for the Appellants against the testimony of Mahendra Singh P.W. 1 and Ganga Saran P.W. 4 is unfounded. The testimony of another eye-witness Bakhtawar Singh P.W. 2 has been subjected to criticism that he was a chance witness. Though he is the resident of another village Badauli, but we find that he gave plausible explanation for his presence at the spot that at that time he was going from village Kaili to village Badauli. He had gone to Kaili in the morning to meet his sister. There is no rule of law that a chance witness is inevitably to be disbelieved. The reason of his presence at the spot has to be examined, which in the present case, sounds to be plausible. Moreover, he had no enmity against the accused Appellants. The names of Bakhtawar Singh P.W. 2 and Ganga Saran P.W. 4 find place in the promptly lodged F.I.R. made by another eye-witness Mahendra Singh P.W. 1 who accompanied the deceased at the time of incident, being on return journey after attending a Court case and having alighted from a bus at Parikshatgarh.

Learned Counsel for the Appellants then argued that the other witnesses named in the F.I.R., namely, Gajraj, Om Prakash and Tikam Singh have not been examined. To us, it appears to be criticism for the sake of criticism. The prosecution is not obliged to multiply the evidence. Even production of these witnesses would not have brought about any material difference, because then they would have been dubbed as interested or chance witnesses. It has come in the testimony of Ganga Saran P.W. 4 that Om Prakash is his own brother and Gajraj is his cousin brother. Tikam Singh is of the village Badauli where Bakhtawar Singh P.W. 2 resided. It was suggested to Mahendra Singh P.W. 1 that he was the son of his uncle. He pleaded ignorance about this fact. Gajraj was an accused in the murder of Mahabir. It is also common knowledge that in faction-ridden rural society the independent witnesses are not forth-coming for fear of procuring enmity or trouble for themselves in future. The only requirement is that the evidence adduced in the Court by the prosecution should be thoroughly scrutinised to get at the bottom of the truth. The wholesome criticism advanced by the learned Counsel for the Appellants against the eye-witnesses of this case cannot be accepted.

Another argument of learned Counsel for the Appellants is that the F.I.R. was ante-timed. He supported this argument by the fact that Jasveer Singh scribe of the F.I.R. and the Head Constable who wrote chik F.I.R. were not produced and that language of the F.I.R.: "...Pitaji ke pas gaon ke aadmion ko chhorkar is tahrir likhkar report ko aya hun...." shows that it was written at the police station and that the names of the accused were not written in the panchayatnama. So far as non-production of the scribe of the F.I.R. and the Head Constable who wrote the chik F.I.R. is concerned, we do not think that it produces any adverse effect on the prosecution case. The scribe Jasveer Singh was the son of Gajraj Singh. He, too, was an accused in the case of Mahabir. His production as a witness is immaterial. The point of the matter is that the informant Mahendra Singh P.W. 1 owns that the report was lodged by him. The non-production of Head Constable who wrote chik F.I.R. is also not at all material, the same having been proved by Satpal Singh P.W. 6 in whose presence the chik F.I.R. had been written down on the basis of the F.I.R. Use of the words: "...Pitaji ke pas gaon ke aadmion ko chhorkar is tahrir likhkar report ko aya hun...." does not permit to jump to the conclusion that it was written at the police station with the consultation of the police. The argument is rather self-defeating. Had it been written at the police station with the consultation of the police, there would have been use of selective words avoiding the alleged phraseology. We are of the opinion that the F.I.R. was a spontaneous document got written by Mahendra Singh P.W. 1 in ordinary manner. It was got written by him immediately after the incident and use of the above words in the F.I.R. cannot be interpreted against the prosecution in a fault-finding manner. Though, the names of the accused are not mentioned in the panchayatnama, but crime number, sections of the offence, the date and time of the lodging of the F.I.R., etc. are found mentioned. There is no column either in the panchayatnama for mentioning therein the names of the accused. So, there was no occasion for the Investigating Officer to have mentioned the names of the accused. The object of holding an inquest report is simply to make an investigation and to draw up a report of the apparent cause of death, describing such wounds, fractures and other marks of injury, as may be found on the body of the deceased and stating in what manner or by what weapon or instrument, if any, the same appear to have been inflicted. It is not necessary that the names of the assailants should be mentioned in the inquest report. As we said, the case crime number, sections of I.P.C., the date and time of the F.I.R., the name of the informant and also the fact that the death had been caused by inflicting injuries with knife are found mentioned in the inquest report. Therefore, on careful consideration of all the aspects of the matter, we do not accept that the F.I.R. was ante-timed.

Learned Counsel for the Appellants then argued that the entire family of the accused Appellants has been implicated. Even the relatives have not been spared, inasmuch as Genda resident of another village Nawal is the samdhi of accused Ram Saran and the accused Pratap, resident of another village Khirkee, is brother-in-law (sala) of Ram Chander accused. He reasoned that all the accused excepting Satvir, Ram Chander and Harbir were empty handed. These three allegedly had knives with which they inflicted injuries on the deceased. It has been reasoned that the unarmed person would not have accompanied three armed ones and the possibility of their false implication cannot be ruled out. We feel that this aspect of the matter cannot be brushed aside lightly.

In the case at hand, one person (Mahabir son of accused Ram Saran) had been murdered in 1976, for which the deceased of the present felony, namely, Hari Dutt Singh, Mahendra Singh P.W. 1 and Ganga Saran P.W. 4 with others were accused and facing trial. Thus, there was the background of enmity between two sides from before the present incident. At times, inimical relationship between the prosecution and the accused side serves as an inducement to the members of the prosecution side to falsely implicate their enemies. Even when only some members of the rival group are involved in the offence, quite often one finds a tendency also to falsely rope in some other members. In doing so, the part played by other side is exaggerated. Therefore, the Court has to be circumspect in the appreciation of the evidence so that over emphasis on the enmity factor does not cause either the innocent to be wrongly convicted or the guilty to be wrongly acquitted. It must be observed that the maxim ''falsus in uno falsus in omnibus'' is not applicable in our country. In each case, the Court has to appraise the evidence to see as to what extent it is worthy of acceptance and merely because in one respect the Court considers it insufficient to rely on the testimony of a witness, it does not necessarily follow as a matter of law that it must be discarded in all respects.

In the present case, the three Appellants, namely, Satvir, Ram Chander and Harbir wielded knives, cutting short life of Hari Dutt Singh. The post-mortem report shows that the deceased received three stabbed wounds and two incised wounds besides one abrasion on the back of left elbow which could have been sustained by fall. The direct, positive and active role of inflicting injuries on the victim has been assigned by the three eye-witnesses to the Appellants Satvir, Ram Chander and Harbir who were wielding knives. The others have been assigned the role of catching hold of the victim and they were empty handed. It is doubtful that the catching hold of the victim was necessary when three of the Appellants were inflicting the knife injuries on him and caused him as many as five injuries capable of being inflicted by knives. Holding of the victim at the time of inflicting injures on him was risky also for those who have been assigned this role, because the victim was to struggle to save himself from knife blows and one or the other knife blows could fall on those too who were allegedly holding him. Judged in this right prospective, it would not be safe to convict the other Appellants on the basis of testimony of eye-witnesses. The benefit of doubt should be afforded to them. We want to make it clear that the fact that the testimony of eye-witness is not acceptable against the Appellants other than Satvir, Ram Saran and Harbir (who were wielding knives) does not mean that they are lying. The situation, in fact, is that having regard to the attending circumstances, their testimony as against the Appellants other than the three named above is of doubtful nature and is not found safe to be accepted. There is a difference between ''falsehood'' and ''doubtful''. The eye-witness account is not accepted for the Appellants other than the three named above as their participation in the crime is doubtful, and not because the testimony against them is found to be false. The benefit of doubt would accrue only to those in respect of whom testimony of eye-witnesses is found to be unsafe to be relied upon, and not to the three Appellants Satvir, Ram Saran and Harbir whose guilt is proved to the hilt that they inflicted a number of knife injuries to the deceased and cut short his life. The offence was committed by them with planning and premeditation. These three were sharing the common intention of one another and each of them played vital role in murdering Hari Dutt Singh. It is legal to convict them u/s 302, I.P.C. read with Section 34, I.P.C., though they were charged u/s 302, I.P.C. read with Section 149, I.P.C. The Supreme Court so ruled in the case of Amar Singh Vs. State on Haryana, . The reason is that the evidence would have been the same if they had been charged u/s 302, I.P.C. read with Section 34, I.P.C.

In the result, we partly allow this appeal and finally order as under:

The appeal stands abated in respect of Appellant Fateh Singh who has died. The conviction and sentences passed against the Appellants Ram Chander, Brahma, Pratap and Genda are set aside. The conviction and sentences passed against the Appellants Satvir, Ram Saran and Harbir by the lower court are also converted and each of them is convicted u/s 302, I.P.C. read with Section 34, I.P.C. Each of them would undergo rigorous imprisonment for life for the said offence. They are on bail. The Chief Judicial Magistrate, Meerut, shall cause them to be arrested and lodged in jail to serve out their sentences.

The record is ordered to be sent back along with copy of this order to the court below for needful compliance under intimation to this Court within two months.