Santoo and Ors. vs State

Khem Karan, J.—This criminal appeal, is directed against the judgment and order dated 2491983, delivered by Shri K.P. Nigam, the then IIIrd Additional Sessions Judge, LakhimpurKheri in Session Trial No. 114 of 1983. He convicted Santoo, Mangali, Shahzade and Shri Krishna under Section 304, Part II read with Section 34 of the Indian Penal Code and sentence all of them to five years rigorous imprisonment.

The appellant Mangali is said to have died during the pendency of this appeal.

The prosecution came with a case that on 2461982 at about 7.30 p.m., while the deceased, Arun Kumar, accompanied by complainant, Ram Babu (P.W. 1), was coming back from Pasigwan via Maigalganj, that the four appellants attacked him with fists, kicks, lathi and danda, towards west of village Sadarpur and this incident was witnessed amongst others by Ram Babu (P.W. 1), Nand Lal (P.W. 3) and Harish Chandra (P.W. 4). The motive alleged was, that on the same date, Karuna Shankar, brother of the deceased was declared elected as Pradhan as against Hemnath, cousin of accused Santoo.

Written First Information Report was lodged with Police Station Maigalganj at 10.30 p.m., in which the appellants were named. The injured Arun Kumar was taken to District Hospital, Sitapur, where his injuries were medically examined on 2561982 at 4.40 a.m. by Dr. R.C. Gupta. Since the condition of the patient was serious, so he was shifted to KG. Medical College, Lucknow, where he died on 2561982 at 10.30 p.m. Autopsy was done, by Dr. R.R.P. Singh on 2661982 at 2.45 p.m. On the death of Arun Kumar, the case was converted into one under Section 304 of I.P.C. Alter the usual investigation, chargesheet against all the four accused, was filed in the Court of Magistrate and in turn the case was committed to the Court of Sessions.

Thee accused were charged and tried under Section 302 read with Section 34 of I.P.C. They denied the charge and pleaded not guilty. The prosecution examined several witnesses including alleged eyewitnesses Ram Babu (P.W. 1), Nand Lal (P.W. 3) and Harish Chandra (P.W. 5). The learned Judge, believed the evidence of these eyewitnesses and concluded that the accused assaulted Arun Kumar on 2461982 at 7.30 p.m. towards west of Sardarpur and Arun Kumar died of the same injuries and so all the accused committed an offence punishable under Section 304, Part II of the Indian Penal Code.

The learned counsel for the appellants, has argued that the evidence of three alleged eyewitnesses is totally unreliable, untrustworthy and unacceptable. According to him the prosecution case suffered from, various infirmities and weaknesses, so it is not safe to accept it as such.

Let us sec whether the finding of the guilt recorded by the trial Court is based on proper appreciation of the evidence or suffers from the defects or infirmities pointed out by the learned counsel for the appellants.

In such a case where the prosecution claims to have direct account of the incident of Marpeet, motive becomes insignificant, Moloo v. State of Haryana, AIR SC 2499. So, there is no use in entering into the question whether there was motive or not, for the accused to assault Arun Kumar.

The learned counsel for the appellant submits that the learned Sessions Judge erred, while concluding on page 5, that the defence did not challenge the time of the occurrence. In this connection, he has referred to page 11 of the statement of Nand Lal and page 10 of the statement of Harish Chandra where it has been clearly suggested that Arun Kumar was assaulted at 9 or 10 in the night at some other place. I am of the view that the conclusion or observation on page 5 of the judgment about time of the occurrence, is not wellfounded, in the face of the suggestions, put to P.W. 3 and P.W. 4 on pages 11 and 10 respectively. No crossexamination of Dr. R.C: Gupta, on the point that injuries were possible at 7.30, was not, especially after clear cut suggestion to P.W. 3 and P.W. 4 as stated above, sufficient to say that defence did not challenge the time of occurrence. The Doctor was not an eyewitness. Moreover, the doctor never said that the injuries were received at 7.30 p.m. All that he said was that these were possible at 7.30 p.m. on2461982.

It is the consistent case of the prosecution and alleged three eyewitnesses have also conceded, that Arun Kumar became unconscious soon after he received injuries and perhaps this Coma was the cause of the death. That means the condition of injured was serious and critical from the very beginning, It has come in the crossexamination of Ram Babu P.W. 1 that there were several doctors including Government hospital, in Aurangabad, situating hardly al a distance of one Kilometre. Not taking the victim to any of the doctors for medical aid, for about two hours and allowing the victim to lie on the spot till 9 30 p.m., are some of the features which create doubt whether Arun Kumar really received injuries at 7.30 p.m. and whether Ram Babu and others had actually witnessed the incident. The explanation offered by Ram Babu for not taking the injured to a doctor till 9.30 p.m., does not appeal to the Court. Taking advantage of this infirmity, the learned counsel has argued that had the incident been actually witnessed by Ram Babu and others and had it taken place at 7.30 p.m., the victim would have been taken to a doctor by 8 or 8.30 p.m. The evidence of P.W. 4 on page 8, if believed to be true, brings the time of occurrence at 9 or 9.30 p.m. He says that he came from the spot, after the victim was put on the tractor, for being taken to the police station and the total period of his stay on the spot was half an hour. According to Ram Babu P.W. 1 tractor came at about 9.30 p m. The evidence of P.W. 4 on page 8 read in the light of evidence of Ram Babu brings the occurrence between 9 and 9.30p.m.

Ram Babu P.W. 1 concedes that shorter route, from Pasigwan to village Pipri, is from mile stone No. 26. The village Pipri lies at a distance of 2 or 3 Kms. from that mile stone No. 26. The route via Maigalganj is longer route to Pipri. He further concedes on page 9, that even on route from Mailganj to village Pipri, it is not necessary to touch village Sadarpur or place "of occurrence, as Rasta to Pipri bifurcates, miles before Sadarpur. The sum and substance of his evidence on this point is, that place of occurrence does not lie on normal and shorter route from Pasigwan to Pipri or from Maigalganj to Pipri. The learned counsel argues that explanation for adopting otherwise longer and unconventional route to Pipri, is unconvincing and absurd and has been invented to make the story probable and to probabalize the presence of witnesses. The learned counsel says that it has come in the evidence of P.W. 1 that Uma Shanker, brother of Arun Kumar was killed, about three years back, near the same place and so Arun Kumar would have never chosen that route, when normal and shorter route was available.

Assuming but no accepting that Arun Kumar and Ram Babu (if both together) had good reason to travel via that route, on which lies the place of occurrence, the moot question is how the accused could know, from before that Arun Kumar would come by that longer route. The question arises because, according to the prosecution case, the accused were hiding in a nearby grove and emerged out from there, armed with lathis and danda. This infirmity in the story remains unresolved and makes the prosecution story, inherently weak and creates a reasonable doubt the veracity of prosecution story.

The evidence of Harish Chandra, P.W. 4, declared as an independent witness by the learned Sessions Judge, does not appear to be natural, reliable and convincing. According to his own evidence, at the time he heard the alarm, he was towards east of the Abadi of village Sadarpur and the place of occurrence lies at a distance of 100 or 125 paces, towards west of Sadarpur. Length of the Abadi from east to west, according to him (on page 6) is one furlong. Thus he was at a distance of 1 1/2 furlong from the place of occurrence. The I.O. says that place of occurrence, lies at a distance of about 4 or 5 furlongs from the Abadi or village Sadarpur. Even if the distance given by I.O. is kept aside for a moment, according to P.W. 4, himself he was more than a furlong away, when he heard the alarm. There was only four injuries on the person of the victim and the assailants, could have finished the job within minutes. So, it was not possible for P.W. 4 to see the actual Marpeet, after covering such a distance. He deposes on page 7, that by the time he reached the spot, the culprits were running away at a distance of 1015 paces and Arun Kumar was lying unconscious. What''s more remarkable is that, according to I.O. This witness did not disclose the names of the accused, in is statement under Section 161 of Cr. P.C. Even in the witnessbox, P.W. 4 could not specify as to who, of the accused was armed with lathi or danda and who was without arms. All this makes his testimony totally unreliable and unbelieve able. Evedence of a witness will not be accepted as a gospel truth, merely because, the accused have not been able to show or prove enmity with him. The learned Sessions Judge committed error by placing reliance on his evidence, on the point of actual Marpeet.

The evidence of Nand Lal, P.W. 3, also suffers from various defects. He did not disclose the names of the accused, to Investigating Officer. It was also not disclosed by him as to who of the accused was armed with lathis and who was without arms. Moreover, he himself, concedes that by the time he reached the spot. Arun Kumar was lying unconscious and the assailants were running away at some distance. As discussed earlier, the probable time of assault was not 7.30 p.m. but 9.00 p.m. or 9.30 p.m. Nand Lal never says that e had gone to ease himself at that time. He has avoided to answer several questions. His evasive replies in crossexamination gives an impression that he has no regard for truth and wants to conceal facts, otherwise not favourable to the prosecution. All this makes his evidence in Court, untrustworthy and unreliable.

Ram Babu P.W. 1, who claims to be a star witness, has also not been able to inspire confidence. His conduct, after the assault, was highly unnatural. He did not take the victim to the doctor but left him on the spot, for about, two hours. In spite of the fact that he was author of F.I.R., did not got to the police station to lodge the same. Had the really been an eye witness of the occurrence and had he been able to identify the assailants, he would have disclosed as to who of the accused assaulted with lathis or dandas and who by fists and kicks and would have immediately managed to take the victim to a nearby doctor. It is not safe to record a finding of guilt, on the basis of evidence of such an unreliable witness, who is otherwise interested in the success of the prosecution, seeing an informant of the case.

The line of crossexamination reveals that the deceased and his family members, had more than one enemies. Suggestions were, that some of the villagers, left the village owing to atrocities of