Mulloo and Another vs State of U.P.

N.S. Gupta, J.—This criminal appeal is directed against the judgment and order of conviction dated 3.5.1980, passed by Sri M. M. Saran, the then Sessions Judge, Lalitpur, convicting the accused-Appellants under Sections 302/114 and 302, I.P.C. respectively and sentencing them to undergo imprisonment for life.

The prosecution story briefly stated is as follows :

The accused-Appellants Mulloo and Summa are real brothers. They are residents of village Bent, police station Jakhlaun, district Lalitpur. On 11.10.1979, at about 8.30 a.m. accused-Appellant Summa was taking a bath at the water tap near the house of the deceased Chukkha. The deceased Chukkha objected to it saying that the ladies of the Mohalla were waiting to fill water. Accused Summa abused him. The deceased Chukkha asked accused Summa to refrain from abusing him. In the meantime Summa''s brother Mulloo came on spot. He cut out battons of Naseni with the help of Surya (a sharp edged weapon like Hansia) and handed over the pati Exh. 1 to Summa and asked Summa that Chukkha should be killed. On this Summa rushed towards the deceased Chukkha and gave him a Pati blow on the back side of his neck. The deceased Chukkha fell down by the side of his chest. He tried to get up but again fell down from the side of his back. This occurrence was witnessed by Gopal (P.W. 2), Rabooda (P.W. 3), the brother of the deceased, Pyare Lal (P.W. 1), Bhajju (P.W. 4) and Ors.. The deceased was lifted by his brother Rabooda (P.W. 3) and Gopal (P.W. 2). He was kept on a cot and while he was being taken to police out-post Pali, police station Jakhlaun, he succumbed to his injuries. Rabooda (P.W. 3) then went to his village and got a report Exh. Ka.-11 scribed by Hira Lal Jain (P.W. 7) and started towards police out-post Pali. When he reached about one and half furlong from his village, he met Head-Constable Jogendra Singh (P.W. 11) who was coming from the opposite direction. He handed over the F.I.R., Exh. Ka. 11 to him. The Head Constable went to the village of the complainant. He saw the dead body of the deceased and then went in search of the accused-Appellants and succeeded in apprehending the accused-Appellants from their houses. Head Constable Jogendra Singh (P.W. 11) took the accused-Appellants and the complainant to police out-post Pali where he registered a case u/s 302, I.P.C. against the accused-Appellants and the investigation followed.

P.W. 6, S.I. Nand Kishore who was then working as S.O. Jakhlaun, district Lalitpur took up the investigation of the case. He recorded the statement of Bhajju (P.W. 4), Gopal (P.W. 2), Pyare Lal (P.W. 1) and Haridas. He also examined the accused-Appellants and after needful investigation into the matter, submitted charge-sheet against the accused-Appellants. After committal of the case before the Court of Session, the case came up for trial before the Sessions Judge, Lalitpur who framed charges u/s 302/114, I.P.C. against the accused-Appellant Mulloo and u/s 302, I.P.C. against the accused-Appellant Summa. The accused-Appellants pleaded ''not guilty'' and claimed trial. Accused-Appellant Mulloo further pleaded that he was not present at the spot at the time of the occurrence. He stated that he was doing service at the house of one Sitaram Lahoria. He claimed that Hiralal Jain (P.W. 9) the scribe of the F.I.R. had obtained a promissory note for Rs. 500 from him. He was paying Rs. 500 per annum to this Hira Lal Jain and had also been paying one quintal of foodgrains every year. He pleaded that he did not give the same in the year of the occurrence. He was, therefore, falsely implicated into this case at the behest of Hira Lal. The accused-Appellants did not adduce any evidence in their defence.

The prosecution examined as many as 11 witnesses out of whom, Pyare Lal (P.W. 1), Gopal (P.W. 2), Rabooda (P.W. 3) and Bhajju (P.W. 4) were the witnesses of fact and have given eye-witness account of the occurrence in question. P.W. 5 Dr. R. P. Gupta was the medical officer of the District Hospital, Lalitpur who conducted the autopsy on the dead body of the deceased on 12.10.1979 at 3.30 p.m. and found the position as under.

The deceased was aged about 45 years. He had died about one and half days back. His body was average built. Rigor Mortis passed off. Post-mortem staining and decomposition had started. Greenish discolouration was there. Abdomen was distended. Eyes were closed. There was sub-conjunctural haemorrhage on right side. Coloured fluid was coming out from ear, nostrils and mouth.

The Doctor found the following ante-mortem injuries on the person of the deceased :

(1) Contusion 16 cm. ? 11 cm. on right side scalp in the region of forehead, temporal region and right eye with sub-conjunctural haemorrhage right side.

(2) Two abrasions 3 cm. apart on back right side upper part No. (1) 1 cm. ? 1 cm. and No. (2) 2 cm. ? 1 cm.

(3) Contusion 10 cm. ? 8 cm. on front of chest left side upper part.

On internal examination of head and neck, the doctor found sub-contenious haemorrhage under Injury No. 1. Membranes were congested, subdural haemorrhage on right side was there. He found haemorrhage also under injury No. 3 with fracture of I Ind and II Ird rib, left side, pleural cavity was full of blood.

Dr. R. P. Gupta, opined that the deceased had died due to shock and haemorrhage which resulted from the aforesaid ante-mortem injuries. He maintained that the ante-mortem injuries found on the person of the deceased were sufficient in the ordinary course of nature to cause death. He stated that injury No. 1 could have been caused by means of Pati Ex. 1 and injury Nos. 2 and 3 by means of fall.

P.W. 6 S.O. Nand Kishore Mal was the Investigating Officer. P.W. 7 Constable Ram Narain was a formal witness who took the dead body of the deceased for post-mortem examination. P.W. 8 Constable Ghanshyam Das was also a formal witness who sworn on affidavit and produced Pati Ex. 1 before the Court below. P.W. 9 Hira Lal was the scribe of the F.I.R. P.W. 10, S.I. Raj Kishore Mohan Gautam prepared the inquest report. P.W. 11, Head Constable Jogender Singh proved the G. D. report and Chick report.

The learned trial court placing reliance upon the prosecution evidence convicted and sentenced the accused-Appellants as aforesaid. Hence this appeal.

We have heard learned Counsel for the parties and have gone through the evidence on record.

Sri Samir Jain, learned Counsel for the accused-Appellants has vehemently argued before us that the medical evidence belies the ocular evidence of the witnesses of fact, viz., Pyare Lal (P.W. 1), Gopal (P.W. 2), Rabooda (P.W. 3) and Bhajju (P.W. 4). We are unable to agree with the submissions made by the learned Counsel for the accused-Appellants in this behalf for the simple reason that Dr. R. P. Gupta (P.W. 5) who conducted autopsy on the dead body of the deceased clearly opined that injury No. 1 which was a contusion measuring 16 cm. ? 11 cm. on right side scalp in the region of forehead temporal region was sufficient in the ordinary course of nature to cause death and that this injury could have been caused by means of Pati Exh. 1, with which this witness was confronted during the course of his evidence before the Court below. He further specifically stated that injury Nos. 2 and 3 could have been caused by means of a fall on the floor made of stone.

The clear case of the prosecution as put forward in the F.I.R. Exh. Ka.-1 and stated by Rabooda (P.W. 3), who is the real brother of the deceased that at the time of the occurrence which took place at about 8.30 a.m., the accused Appellant Summa was taking bath at water tap. Certain ladies of the Mohalla were standing there for filling of water. The deceased Chukkha asked the accused-Appellant Summa to refrain from bathing, thereupon Summa abused the deceased. Meanwhile accused-Appellant Mulloo came. He gave a Pati Ex. 1 to Summa. Summa came rushing towards the deceased and assaulted the deceased by means of that Pati causing injury in the neck of the deceased. The deceased fell down from the side of his chest. When he tried to get up, then again he fell down from the back side.

The post-mortem report of the deceased reveals that on internal examination of the head and neck, the doctor found sub-contenious haemorrhage under injury No. 1. That being so it is clear that injury No. 1 was the result of the assault made by the accused-Appellant Summa upon the deceased. That injury being sufficient in the ordinary course of nature to cause death, it appears that the deceased had died due to shock and haemorrhage which resulted from the said injury. Thus it cannot be said that the medical evidence of Dr. R. P. Gupta is in any way in conflict with the ocular evidence of the witnesses of fact.

It is important to note here that Pyare Lal (P.W. 1) who had given eye-witness account of the incident had no enmity with the accused-Appellants. He stated that he has been doing the job of collecting hides and skins, and that in this connection, he had gone to the village of occurrence on the day of occurrence and had seen the accused-Appellant Summa assaulting the deceased by means of Pati of the ladder which was cut away by the co-accused Mulloo and that accused Summa had assaulted the deceased from the said Pati from towards the back side of the neck of the deceased, with the result the deceased had fallen down.

Gopal (P.W. 2) was a close neighbour who has got a house at a distance of about 50-60 paces from the scene of occurrence. He stated that he too has been doing the job of collecting hides and skins and that on the day of occurrence, Pyare Lal (P.W. 1) had gone to his house for collecting the hides.

P.W. 3 Rabooda is the real brother of the deceased has specifically stated about the assault being made by the accused-Appellant Summa by means of Pati Ex. 1 on the person of the deceased.

Similarly, Bhajju (P.W. 4) who is close neighbour of the complainant had stated that accused Summa assaulted the deceased by means of a Pati which was given to him by his brother Mulloo.

The circumstances that Pyare Lal (P.W. 1), Gopal, (P.W. 2) and Bhajju (P.W. 4) had no enmity with the accused-Appellants ; the circumstances that the time of occurrence was 8.00 a.m. when a number of ladies of the Mohalla were standing waiting for filling up their pots by means of water ; the circumstances that unmindful of the necessity of his neighbours and village ladies, the accused-Appellant Summa was going on bathing ; the circumstances that the deceased Chukkha sympathising with the village ladies asked the accused-Appellant Summa to refrain from bathing and the circumstances that feeling annoyed on that score, Summa took out a Pati Exh. 1 which was either provided by his brother Mulloo or was taken up by him and had assaulted the deceased by the same, in consequence of which the deceased had ultimately died while he was being taken to the police out-post, fully go to show that the accused-Appellant Summa was definitely responsible for causing murderous assault on the deceased.

It is important to note here that accused Summa had assaulted the deceased by means of a Pati Exh. 1, on being provoked by the assertion of the deceased to not continue with bathing. It appears that accused Summa took the asking of the deceased as a challenge to his authority and was deprived of the power of his self-control. Thus, it appears to us that accused Summa was responsible for causing the death of the deceased without premeditation and having been deprived of the power of his self-control by the grave and sudden provocation which was given to him by the deceased. As such we find the accused-Appellant Summa to be guilty of committing culpable homicide not amounting to murder, an offence punishable u/s 304, Part II, I.P.C.

As regards Mulloo, he was admittedly the real brother of accused Summa. It is probable to believe that hearing the scuffle going on in between the deceased and his brother Summa, this accused may have arrived at the spot, but so far as the fact that he had abetted the offence of murder by cutting a Pati of a ladder and providing the same to the accused Summa with which he committed the murder of the deceased does not appear to us to be a truthful one for the simple reason that if Mulloo wanted to share the guilty intention of his brother Summa for committing the assault or for that matter, murder of the deceased, there was no necessity for him to cut away a Pati by means of a sharp-edged weapon and then to provide the same to his brother. In that event, he would have provided that very weapon with which he had cut down the ladder to his brother Summa and Summa should have done away with the deceased by means of that weapon.

The circumstances that according to the prosecution version and eye-witness account of the four witnesses of fact, Mulloo had first cut down the ladder and then gave Pati Ex. 1 to Summa and Summa then assaulted the deceased by means of the same appear to be improbable in view of the preponderance of the circumstances of the case.

It was asserted by the accused Mulloo in his examination u/s 313, Cr. P.C. that he was falsely implicated into this case on the behest of Hira Lal Jain (P.W 9), the scribe of the F.I.R. in whose favour he had executed a promissory note for Rs. 500 about fifteen years back and was regularly paying one quintal of foodgrain every year. He stated that in the year in question, since he did not give the said grain, Hira Lal Jain (P.W. 9) got him falsely implicated into this case.

Hira Lal Jain (P.W. 9) was admittedly the scribe of the F.I.R. He was a witness of the inquest report as also the recovery memo of Pati Ex. 1. According to the eye-witness account, no assault was made by this accused Mulloo. Thus, the possibility that he was falsely roped into this case at the behest of the scriber of the F.I.R., Hira Lal Jain (P.W. 9) cannot be ruled out.

It was laid down by the Apex Court in Ugar Ahir and Others Vs. The State of Bihar, , as under :

The maxim falsus in uno, falsus in omnibus (false in one thing, false in every thing) is neither a sound rule of law nor a rule of practice. Hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is, therefore, the duty of the Court to scrutinise the evidence carefully and, in terms of the felicitous metaphor, separate the grain from the chaff. But, it cannot obviously disbelieve the substratum of the prosecution and reconstruct a story of its own out of the rest.

Thus having regards to the preposition of law laid down in the said ruling and after shifting chaff from the grain and truth from the falsity, we consider it safe to trust upon the ocular evidence of the witnesses of fact, viz., Pyare Lal (P.W. 1), Gopal (P.W. 2), Rabooda (P.W. 3) and Bhajju (P.W. 4) with regard to the participation of accused Summa alone and consider it safe to give benefit of doubt to accused Mulloo.

Shri Jain, learned Counsel for the accused-Appellants cited the following rulings :

(1) Marudanal Augusti v. State of Kerala 1980 SCC 985, in which the Hon''ble Supreme Court had laid down that once F.I.R. is held to be fabricated or brought into existence long after the occurrence the entire prosecution case will be collapsed. In the instant case before this Court the F.I.R. was quite a prompt one. That being so this ruling is of no help to the accused-Appellants.

(2) Another ruling relied upon by the learned Counsel for the accused-Appellant is Mayappa Dhondanna Padeade v. State of Maharashtra 1981 SCC 790, regarding the appreciation of evidence. We have already taken the fact and circumstances of the case into consideration while appreciating the evidence or record ; and having regard to the possibility of roping in Mulloo, the brother of Summa falsely he has been given the benefit of doubt and has been acquitted.

(3) Babu and Ors. v. State of U. P. 1983 SCC 332. This ruling is of no help to the Appellants for the simple reason that the matter of easing depends on the individuals habits and no presumption can be raised that the presence of faecal matters in the large intestine necessarily leads to a conclusion that the entire theory of the prosecution is false.

(4) The ruling of Govind Narain and another Vs. State of Rajasthan, , is also of no help to the accused-Appellants for the obvious reasons that the F.I.R., of the present case and the ocular evidence of the witnesses regarding the manner of assault on the deceased is quite clear.

(5) The ruling of Meharaj Singh (L/NK) v. State of U. P. 1994 SCC 1390, also does not help to the accused-Appellants for the reason that it is clear from the papers on record that a copy of the General Diary was sent to the Medical Officer along with the dead body of the deceased and other relevant papers.

Thus in the result, we find that the appeal in so far as it relates to accused-Appellant Summa is allowed in part to this extent that his conviction recorded by the trial court u/s 302, I.P.C., is altered to one u/s 304-II, I.P.C. He is accordingly convicted u/s 304-II, I.P.C. and is sentenced to undergo R.I. for a period of five years and to pay a fine of Rs. 2,000 (Rs. two thousand) and in default of the payment of the same, to further undergo R.I. for a period of one year.

The appeal in so far as it relates to co-accused Mulloo, is allowed. His conviction and sentence u/s 302/114, I.P.C. recorded by the Court below are set aside. The accused-Appellants are on bail. The bail of accused Summa is hereby cancelled. C.J.M., Lalitpur is hereby directed to get the accused-Appellant Summa arrested and commit him to prison forthwith and to submit compliance report to this Court within a period of three months. As regards accused Mulloo, his sureties are discharged and he need not to surrender.

Let a copy of this judgment along with the record of the case be sent to the Court below for needful compliance.