Thakur Prasad Singh vs State of U.P.

Vishnu Sahai, J.—Through this appeal Thakur Prasad Singh challenges the judgment and order dated 7.3.1981 passed by I Ind Additional Sessions Judge, Gonda in Session Trial No. 171 of 1979 whereby he has been convicted and sentenced to imprisonment for life for the offence punishable u/s 302, I.P.C.

It is pertinent to mention that along with Thakur Prasad Singh, three others, namely, Surendra Singh, Sardar Singh and Kuber Singh were also prosecuted and tried but they have been acquitted vide the impugned judgment and the State of U.P. has not impugned their acquittal by preferring an appeal u/s 378(1), Cr. P.C.

Shortly stated, the prosecution case runs as under:

At the time of incident, the informant Jamil Khan P.W. 2, his elder brother Jalil Khan (deceased), Bashir Khan P.W. 3, Ibrar Khan, Appellant Thakur Prasad Singh and acquitted accused Surendra Singh, Sardar Singh and Kuber Singh were living in village Kamalpur within the limits of police station Colonelganj, district Gonda.

The Appellant and acquitted accused are inter se relations and friends. There was enmity between Appellant and deceased Jalil. Jalil had purchased some land from the widow of Wazid Ali and in the said land started keeping his cattle. The Appellant used to say that said land belongs to him. Two days before the incident, an altercation took place between the Appellant and deceased Jalil on account of the said land. The Appellant had threatened Jalil that he should leave the said land, otherwise he would be killed.

On the night of 24/25.9.1976, at about 12.00-1.00 a.m. the informant Jamil along with deceased Jalil was sleeping inside the courtyard (Ghari) of his house situated within the limits of village Kamalpur, police station Colonelganj, district Gonda. The deceased was sleeping on a cot covered by a mosquito net at a distance of three paces from the informant. At a distance of four paces from the place where deceased was sleeping, Bashir P.W. 3 was sleeping. At the said time, the informant heard Jalil groaning. Consequently, he woke up and flashed his torch and in its light saw acquitted accused Surendra Singh, Sardar Singh and Kuber Singh catching hold of Jalil and pressing him with lathis and the Appellant inflicting banka blow on the neck of Jalil. Hearing the sound of groaning of Jalil, Bashir (P.W. 3) also woke up and flashed his torch. Bashir also saw the acquitted accused catching hold of Jalil and pressing him with lathis and the Appellant assaulting him with a Banka on the neck. After assaulting Jalil, the Appellant and the acquitted accused ran away. The informant and others chased them upto some distance but failed to apprehend them. Thereafter the informant returned and found that Jalil was practically dead. About two minutes later, he succumbed to his injuries.

At night, on account of fear, Jamil did not proceed to the police station to lodge the F.I.R. In the morning, he scribed the F.I.R. exhibit Ka-1 and leaving the corpse of his brother Jalil at home, proceeded to police station Colonelganj where he lodged the F.I.R.

The evidence of S.I. Narendra Bahadur Singh, P.W. 6 shows that:

On 25.9.1976, he was posted as Sub-Inspector at P. S. Colonelganj district Gonda. The Chik F.I.R. Exhibit Ka-11 was reduced into writing by Head constable Kesari Nandan, whom he had seen writing. On the basis of the F.I.R. a case vide G.D. Entry No. Ka-10 was registered at 8.30 a.m. against the Appellant and the acquitted accused. He thereafter took over the investigation and proceeded to the place of the incident where he performed inquest on the corpse of Jalil and thereafter sent it for autopsy. He thereafter recovered from the place of incident, plain and blood stained earth and clothes of the deceased under recovery memos. He then inspected the torches of witnesses Jamil, Ibrar and Bashir and recovered them under recovery memos. He then recorded the statements of the witnesses. He did some other investigation also to which, in our view, a reference is not necessary for the decision of this appeal.

On completion of investigation, the Appellant and the acquitted accused were charge-sheeted.

Going backwards, the autopsy on the corpse of the deceased Jalil was conducted on 26.9.1976 at 4.15 p.m. by Dr. M. S. Seth, P.W. 1 who found on it a transverse incised wound 12 cm. - 2.5 cm. - bone deep left side of neck below lower border of mandible on the front and lateral side.

It is pertinent to mention that in the post-mortem report, Dr. Seth has categorically mentioned that the other injuries found in the inquest report were not present.

On internal examination, Dr. Seth found third cervical vertebra cut and muscles of great blood vessels of left side of neck cut under the injury.

The cause of death spelt out in the post-mortem report is shock and haemorrhage as a result of the injuries.

The case was committed to the Court of Sessions in the usual manner where the Appellant was charged for an offence punishable u/s 302, I.P.C. and the acquittal accused for that punishable u/s 302 read with Section 34, I.P.C. The Appellant and the acquitted accused pleaded not guilty to the charges and claimed to be tried.

During trial, in all the prosecution examined six witnesses. Two of them, namely, Jamil, P.W. 2 and Bashir, P.W. 3 were examined as eye-witnesses.

It is significant to mention that during cross-examination, the suggestion given to the aforesaid eye-witnesses was that during night while they were sleeping, Jalil was done to death and in the morning they discovered about his death and the Appellant and the acquitted accused have been falsely implicated. The eye-witnesses denied the said suggestion.

The learned trial Judge believed the evidence of the eye-witnesses and convicted and sentenced the Appellant in the manner stated in paragraph 1. As mentioned in the said paragraph, he acquitted co-accused Surendra Singh, Sardar Singh and Kuber. As also mentioned therein, aggrieved by his conviction, Appellant preferred the present appeal and the State of Uttar Pradesh has not impugned the acquittal of the acquitted accused.

We have heard learned Counsel for the parties and perused the entire record and make no bones in observing that this appeal deserves to be allowed.

It would become manifest from what we have mentioned above that the conviction of the Appellant is founded on the ocular account furnished by the informant Jamil, P.W. 2 and Bashir, P.W. 3. In our view, it would not be safe to accept their testimony.

In the first place, we would like to point out that their testimony is to be approached with caution ; of the informant Jamil because he was the brother of deceased Jalil, between whom and the Appellant there was enmity, and of Bashir because he has admitted in his cross-examination that in proceedings u/s 107, Cr. P.C., which came to an end about six months prior to the incident, he was arrayed as an accused along with deceased Jalil and his family members.

Secondly, we find the version given by both these witnesses to be extremely improbable. Their evidence shows that on the night of 24/25.9.1976 at about 12.00-1.00 a.m. while they were sleeping, they woke up on the groans of the deceased Jalil and when they flashed their torches, they saw the three acquitted accused catching hold of the deceased Jalil and pressing him with lathis and the Appellant inflicting banka blow on his neck. We are not prepared to buy this claim of theirs because they were sleeping ; thereafter they heard the groans of Jalil ; thereafter they flashed their torches ; and then saw the incident. It is significant to point out that the autopsy surgeon Dr. M. S. Seth, P.W. 1 found a solitary incised wound on the corpse of the deceased and has categorically recorded in the post-mortem report that he did not find on the person of the deceased the other injuries which had been mentioned in the inquest report. Sound common sense says that a person only groans after he is assaulted. In such a back-drop, when we examine that only a solitary injury was inflicted on the person of the deceased, it becomes extremely difficult to accept the claim of these witnesses that by the time they woke up and flashed their torches, the acquitted accused were still catching hold of the deceased and pressing him with lathis and the Appellant was still assaulting him with banka. The only hypothesis on which we can explain the conduct of the Appellant and the acquitted accused is that despite having chosen night time to commit murder of deceased, they were only prepared to leave the place of incident after the witnesses had recognised them. This would be a most unnatural conduct on the part of the Appellant and the acquitted accused and we certainly are not prepared to accept it.

Thirdly, we are not prepared to accept the ocular account furnished by the said witnesses because they categorically stated that the three acquitted accused were pressing the deceased with lathis ; something which is false. It is significant to point out that a perusal of the post-mortem report shows that the deceased did not sustain any injury other than an incised wound. In our view, had the story of the deceased being pressed with lathis been true, then contusions would have been found on the corpse of the deceased by the autopsy surgeon.

It was in such a situation, the learned trial Judge, as manifest from a perusal of paragraph 22 of the impugned judgment, acquitted said accused.

In our view, the story that the deceased was being pressed by lathis by the three acquitted accused when the Appellant was inflicting banka blow on his neck is a figment of imagination of the witnesses. We make no bones in saying that it is cooked-up. And once we hold this, the logical imperative would be that these three acquitted accused have been falsely implicated. This in turn would mean that seventy five per cent of the account given by the eye-witnesses is false. And if seventy five percent of the account furnished by the eye-witnesses is false, it would be absolutely hazardous to accept it in relation to the Appellant. It is true that the principle ''falsus in uno falsus in omnibus'' is not a rule applicable in our country, but at the same time, it is equally true that where a integral part of the prosecution case is false and the witnesses are falsely deposing about the participation of a large number of accused persons, who were not there, it would be hazardous to accept their evidence vis-a-vis the remaining accused.

Our view is based on sound common sense, and in our judgment, is not required to be elucidated by authorities. But since reference to and reverence of authorities has become the order of the day, we do not wish to deviate and the authority which most readily comes to our mind, is Balaka Singh and Others Vs. The State of Punjab, In paragraph 8 of the said authority, the said principle has been laid down by their Lordships of the Apex Court in the following words:

...It is true that there are as many as eight witnesses who are alleged to have seen the occurrence and they have given a parrot-like version of the entire case regarding the assault on the deceased by the various accused persons. All these witnesses have with one voice and with complete unanimity implicated even the four accused persons, acquitted by the High Court, equally with the Appellants making absolutely no distinction between one and the other. A perusal of the evidence of the prosecution witnesses would show that the prosecution case against the Appellants and the four accused is so inextricably mixed up that it is not possible to sever one from the other. It is true that, as laid down by this Court in Zwinglee Ariel Vs. State of Madhya Pradesh, , and other cases which have followed that case, the Court must make an attempt to separate grain from the chaff, the truth from the falsehood, yet this could only be possible when the truth is separable from the falsehood. Where the grain cannot be separated from the chaff because the grain and the chaff are so inextricably mixed up that in the process of separation the Court would have to reconstruct an absolutely new case for the prosecution by divorcing the essential details presented by the prosecution completely from the context and the background against which they are made ; then this principle will not apply.

For the aforesaid reasons, we are not prepared to accept the ocular account furnished by informant Jamil P.W. 2 and Bashir P.W. 3. There is no other evidence to connect the Appellant with that crime.

In the result, we allow this appeal ; acquit the Appellant for the offence punishable u/s 302, I.P.C.; set aside his conviction and sentence thereunder ; and direct that he need not surrender to his bail bonds and his bail bonds stand cancelled and sureties discharged.