Maheshwari and Others vs State of U.P.

S.K. Dhaon, J.—The Appellants have been convicted and sentenced for life u/s 302 read with Section 34 of the IPC. They feel aggrieved; hence this appeal.

The place of occurrence was a field of one Mania in village Bara Dcra Behuni Kalan within the jurisdiction of the police station Muskara. The distance between the place of occurrence and the police station was about four miles. The occurrence is of 3rd February 1977, time being about 2.30 p.m. The first information report was lodged at about 4.30 p.m.

Mahipat PW 1 the father of the victim Badri, who was aged about 22 years; lodged the first information report. This was a scribed report, the writer being one Bala Prasad. The Appellants No. 1 and 2, namely, Maheshwari and Raja Ram are real brothers and the Appellant No. 3 Babbu alias Babu is a cousin of the Appellants No. 1 and 2. The allegation was that Maheshwari, the Appellant No. 1, was armed with a spear (Bhala), the Appellant No. 2, Raja Ram, was armed with a lathi and the Appellant No. 3 Babbu, was armed with a Pharsa (Sharped edged weapon). It was alleged that all the accused wielded their weapons in bringing about the death of Badri.

Five witnesses were metioned in the first information report. They were (1) Bhawani, (2) Jagannath, (3) Mahipat PW 1 Hindupat PW 2 and Lalji PW 3. At the trial Bhawani and Jagannath were not produced.

The usual investigation followed. The Investigating Officer reached the scene of occurrence. He prepared a site plan. According to this plan Mahipat PW 1 was at point No. ''8'' when he heard the shrieks of his son, Badri, the deceased. He reached point ''7'' a distance of about 100 yards from the place of occurrence in the field of Mania. Further, Lalji PW 3 was at point No. 6, and this distance too had been shown at about 100 yards from the place of occurrence. Hindupat PW 2 was at point which is about 25 paces away from the scene of occurrence.

Dr. S.C. Pandey PW 6 conducted post-mortem of the dead body of Badri on 4th February, 1977. The following ante mortem injuries were found on the dead body:

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On an internal examination it was found that there was blood beneath the scalp. The right temporal bone under injury No. 3 was fractured while the left temporal bone was fractured under injury No. 11. The membrance under injuries Nos. 3 and 11 were lacerated. There was blood on both the sides of the hemesphere. Medial cranial fossa was fractured under injuries No. 3 and 11. The third cervical vertebrae was partially cut under injury No. 14. The hyoid bone under injury No. 14 was also cut. There was 8 Oz. semi digested food in the stomach. There was faecal matter in the large and small intestines. The deceased was reported to have died due to coma, shock and haemorrhage because of the injuries sustained about 18 to 36 hours before.

The prosecution story in brief was this. On 3rd February 1977, at about 9 or 10 a.m. there was an altercation between Maheshwari, the Appellant No. 1 and Badri the deceased in which some persons intervened. This incident took place near the shop of Gatiram PW 4 at about 2.30 p.m. on the same day, Mahipat PW 1 was in his grove when the deceased came to him. Thereafter the deceased went to the Har (the field) and when he reached the plot of Mania near a Nala, the Appellants Maheswari, Babu and Rajaram respectively armed with spear, pharsa (a sharp edged weapon) and a lathi surrounded the deceased. The deceased raised an alarm upon which Mahipat rushed towards the scene of occurrence and saw the three Appellants assaulting the deceased with their respective weapons. The incident was witnessed by Bhawani, Jagannath, Hindupat and Lalji. Jagannath and Lalji asked the complainant not to go close to the scene of occurrence as there was a danger to his life. Mahipat went back to his grove and raised an alarm. As a result of the alarm a number of villagers came to the place and the three accused bolted away.

The learned Sessions Judge, who conducted the trial, made a local inspection of the scene of occurrence and the places around about the same. The inspection note is on record before us. In brief, the contents of his note are these. The spot position of vagia of Mahipat is correctly shown in the site plan. If a person stands on the north eastern corner of the Bagia the plot of Lalji is very clearly visible. The Bhatta, which has been shown by letter 7 in the site plan is also visible. The plot of Mania is clearly visible from the north eastern corner of the Bagia (Bagia of Mahipat). In the southern portion of the plot of Mania there is a teela. If a person stands inside the Bagia the plots of Lalji aswell as of Mania are not visible. The Bhatta of Gajanan and the plot of Mania are not visible from the north western corner of the plot of Lalji. The Bhatta of Gajanan is also not visible from the south western corner of the plot of Lalji. The Bhatta of Gajanan is visible after covering 30 paces towards the east from the south western corner of plot of Lalji. From the plot of Mania the plot of Lalji is also visible from the south western portion of the plot of Mania while the eastern portion of Bagia of Mahipat is very clearly visible from there. From the south eastern portion of the plot of Mania the eastern portion of the Bagia is very clearly visible. The plot of Lalji is also visible so much so that the Abadi is also visible. The place of occurrence is about 120 paces from near eastern portion of the plot of Lalji, but this distance as a crow''s fly is at about 100 paces. The alleged scene of occurrence from where the dead body is said to have been recovered is visible from the north eastern side of the Bagia.

The learned Sessions Judge has recorded a finding that there was a bitter enmity between the Appellants on the one side and Mahipat and his son Badri, the deceased on the other. He has also accepted the prosecution about the altercation between Maheshwari, the Appellant No. 1 and the deceased on the morning of 3rd February, 1977 near the shop of Goti Ram. He, therefore, proceeded on the assumption that the motive of the murder of Badri had been established. However, he considered the factor of motive to be immaterial as, according to him, the prosecution case stood proved by the testimonies of the three witnesses.

Learned Counsel for the Appellants has concentrated on the submissions: First, it was physically impossible for Mahipat PW 1 and Lalji PW 3 to have witnessed the occurrence, secondly, in any vies of the matter it was impossible for them to have seen the three persons using the weapons assigned to them by the witnesses and thirdly, the testimonies of Mahipat and Lalji ceased to be worthy of reliance as admittedly the Investigation Officer had made them sign their respective statements made by them u/s 161 of the Code of Criminal Procedure. To give a decision on these submissions, we are proceeding to examine the testimonies of the three witnesses.

Mahipat PW 1 stated this. On hearing the shrieks of Badri he reached near the brick kiln of Gaja (Enton ka Bhatta) and saw there the three accused weilding the three weapons assigned to them upon Badri. The actual place of occurrence was about 80 to 85 paces to the east of the Bhatta (brick Win). He reiterated that Maheshwari, Raja Ram and Babbu were respectively armed with Bhala, Lathi and pharsa and all the three weapons were being used on Badri. The field of Lalji was adjacent to his field. When he reached the place near the brick-kiln, he was asked by Lalji and Jagannath not to proceed further otherwise he would also meet the fate of Badri. He returned back to his grove.

Lalji PW 3 stated this. He was in his field. He Heard the shouts of Badri, Hindupat, Jagannath. He went towards the place of occurrence and saw the accused weilding the respective weapons assigned to them upon the deceased. Mahipat reached the brick kiln of Gaja and there he was stopped by him (Lalji) from proceeding further. He did not go to the scene of occurrence after hearing the noise. He witnessed the assault upon the deceased from his field. He went to the spot later on. The Investigating Officer recorded his statement. The Investigating Officer also made him (Lalji) sign his statement.

Hindupat stated this. He was proceeding to the Kachar (river bed) from his house to fetch Karibi (Karibi is cut into pieces for being given as fodder). He witnessed the assault upon the deceased by the accused with their respective .weapons assigned to them, from a distance of about 20 to 22 paces. From the scene of occurrence his fields were situated after 3-4 fields at a distance of about 200 to 250 paces. Those fields were recorded in the name of Baldeo. He then stated that he had taken the fields on Batai and then said that Baldeo was living with him and he was feeding him (Baldeo). He further admitted that he ploughed the fields of Baldeo. In the field there remained only Kundi (Stem). The Investigating Officer met him in the village the same evening. He recorded his statement. The Investigating Officer made him (Hindupat) sign his statement.

We have already indicated above that in the site plan prepared by the Investigating Officer at point No. 7 is shown the brick-kiln of Gaja and from this point the place of occurrence is shown to be about 100 yards. Mahipat PW 1, as we have already seen, clearly stated that he witnessed the incident not from his grove but from point No. 7, namely, the place near-about the brick-kiln, Likewise, we have already indicated that the point No. 6 is a place from where Lalji is alleged to have seen the occurrence. This point is also shown as 100 yards away from the scene of occurrence. It has to be remembered that according to the testimonies of Lalji and Mahipat, both of them were together at point No. 7, the brick-kiln. It is not necessary to enter the controversy as to whether Lalji witnessed the occurrence from point No. 6 or point No. 7 as both the places have been shown as 100 yards away from the scene of occurrence. The learned Sessions Judge no doubt, took pains to inspect the scene of occurrence, but somehow or the other it did not strike him to verify as to whether the identity of the persons involved in the incident and in particular the weapons alleged to have been used by them could be seen from either point No. 6 or point No. 7. The learned Sessions Judge observed:

...I have also made a local inspection and my report is on the record. The spot position as found by the Investigating Officer was correct....

We are satisfied that though in the impugned judgment the learned Sessions Judge has not made a specific reference to the opinion formed by him of the local inspection, yet he was swayed by the note prepared by him at the time of the inspection while appreciating the testimonies of Mahipat PW 1 and Lalji PW 3. It appears that he took it for granted that not only the scene of occurrence, but also the occurrence was clearly visible from points 6 and 7 as marked in the site plan.

Section 310 of the Code of Criminal Procedure, 1973, which is analogous to Section 539-B of the Old Code provides that any Judge may, at any stage of trial visit and inspect any place in which an offence is alleged to have been committed or any other place which it is in his opinion necessary to view for the purpose of properly appreciating the evidence given at such trial and shall without unnecessary delay record a memorandum of relevant facts observed at such inspection. It further provides that such memorandum shall be part of the record of the case. In State of U.P. v. Het Ram AIR 1976 SC 2124 it was held that Section 539-B of the Code of Criminal Procedure (Old) contemplated a local inspection of the topography of the place in which the offence was alleged to have been committed or its local peculiarities for the purposes of properly appreciating the evidence which was already on record. It will, therefore, be seen that in the instant case the learned Sessions Judge has made an invisible use of the contents of his inspection note as if the same formed part of the evidence which was already on record.

In Pritam Singh and Another Vs. The State of Punjab, the provisions of Section 539-B of the Code (Old) fell to be considered. It was observed:

The learned Additional Sessions Judge was certainly not entitled to allow his view or observation to take the place of evidence because such view or observation of his could not be tested by cross-examining the accused who would certainly not be in a position to furnish any explanation in regard to the same.

Keeping in view the provisions of Section 310 of the Code and the dictum of the Supreme Court in the aforementioned two cases, we have no hesitation in coming to the conclusion that the inspection note of the learned Sessions Judge cannot be used for either determining the distance between points 6 and 7 as shown in the site plan and the place of occurrence or for demolishing or contradicting the statement of fact recorded in the site plan that the place of occurrence was about 100 yards away from either of the two aforementioned points. It is to be noted that the prosecution did not lead any evidence to contradict the statement of fact recorded by the Investigating Officer in the site plan. For the purposes of this case, we have no option but to proceed on the footing that points 6 and 7 were situate at a distance of about 100 yards from the place of occurrence (point X).

In Criminal Investigation by Dr. Hans Gross, Fifth Edition, at page 159 we find: it is appropriate here to call attention to what has been said about the distance at which we can recognise persons. Presuming the eye sight to be normal and the light good, one is able in broad day light to recognise:

(a) persons whom one knows very well, at a distance of from 50 to 9) yards; when there are particular and very characteristic signs 110 yards:

(b) persons one does not know very well and has not often seen, from 28 to 33 yards,

(c) people one has only seen once, 16 yards.

There is no evidence on record that the eye-sight of the eye-witnesses Mahipat and Lalji were normal. Also there is no evidence that the light on the day of occurrence was good. Furthermore, there is not even a whisper in the evidence on record that there were any particular and very characteristic signs in the three accused so that they could be spolted out from their gait etc. Having given a thoughtful consideration, we feel that the question whether Mahipat and Lalji could see the accused from points 6 and 7 is, in any view of the matter, not free from doubt and in such a situation the accused should get the benefit of the same. Furthermore, assuming the accused could be identified by Mahipat and Lalji from a distance of about 100 yards, we are not inclined to believe that from that distance they could really see the three accused wielding the three weapon assigned to them by Mahipat and Lalji in their respective testimonies.

Section 161 of the Code authorises a Police Officer to examine any person supposed to be acquainted with the facts and circumstances of the case. This provision also enables the police officer to reduce into writing any statement made to him in the course of an examination and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records. However, Section 162 provides that no statement by any person to a police officer in the course of an investigation under Chapter XII, shall, if reduced to writing be signed by the person making it. We have already adverted to the testimonies of Lalji and Hindupat wherein they have clearly admitted that the Investigating Officer had on the date of the occurrence itself recorded their statements in writing and had made them sign on the same. We have, therefore, to examine the effect of the observance of the provisions of Section 162 of the Code referred to above in their breach.

The provisions of Section 162, as high lighted above, embody a wholesome rule of public policy that witnesses at the trial should be free to tell the truth unhampered by anything they might have been made to say to the police.

In Narpat Singh v. State of Haryana AIR 1977 SC 1066 is was observed:

...In the first place, the practice of getting the statement of witness signed has been deprecated by this Court and is expressly prohibited by Section 162 of the Code of Criminal Procedure. Violation of this provision may sometimes diminish the value of the testimony of the witnesses when they come to the Court....

We are, therefore, to be cautious and make an indepth scrutiny of the testimony of Hindupat at least.

Has the value of the testimonies of Hindupat and Lalji been diminished by the non-observance of the provisions as contained in Section 162 of the Code? Before answering this question, let us examine the testimony of Hindupat again. It will be remembered that in cross-examination he has stated that he was on his way to his field to get Karbi. In the same breath he stated that the fields were entered in the name of Baldeo. On further cross-examination he stated that he had taken the fields on Batai and in the same breath he stated that Baldeo was living with him and he was feeding him (Baldeo). Then he said that in the fields there were Khundis (stems) and then he said that Karbi was standing there. The testimony of Hindupat read as a whole coupled with the fact that he was made to sign his statement u/s 161 which was recorded in writing has considerably diminished the value of his testimony. Therefore, we have no hesitation in accepting the contention of the Learned Counsel for the Appellants that this witness was a chance witness and it will not be safe to rely upon his testimony.

Having given a thoughtful consideration to the case we are satisfied that the prosecution has not been able to establish its case beyond all shadow of doubt and the Appellants are entitled to the benefit of doubt.

In the result, the appeal succeeds and is allowed. The conviction and sentences of the Appellants are set aside. They are acquitted. They are on bail. Their bail bonds are cancelled and sureties are discharged.