The State of U.P. vs Rajendra and Others

M.C. Jain, J.—This Government Appeal is directed against the judgment and order dated 4.5.1991 passed by II Additional Sessions Judge, Etawah in Sessions Trial No. 27 of 1990. Rajendra, Suresh, Kanhai, Hakim Singh, Lal Bihari and Munni Devi were tried before him for rioting, committing murder of one Gore Lal and causing injuries to Ram Naresh and Vimla Devi. There was 7th accused Genda Lal who died during the trial. The incident occurred on 5.6.1989 at about 11.30 P.M. in Daulatpur, P.S. Phaphund, District Etawah at a distance of about 10 kms. from the police station. The F.I.R. was lodged by Ram Naresh son of Gore Lal deceased on 6.6.1989 at 8.30 A.M. He, however, died in some accident before his evidence could be recorded in the trial.

The leave to appeal was earlier rejected and the appeal was dismissed by an earlier order of this Court on 20.7.1992. That order read as under:

Heard the learned Govt. Counsel.

The judgment of acquittal does not suffer from any perversity to

warrant any interference by this Court in the appeal against the

order of acquittal. Accordingly the leave application is rejected.

The State went in appeal before the Supreme Court. The Apex Court by order dated 18.1.1996 remanded it for being decided on merits after full-fledged hearing. It is in this way that the appeal has come up for hearing again and is being decided on merits after hearing the arguments of both the sides.

The relevant facts are these: The accused respondents including Genda Lal deceased accused were supporters of one of them Munni Devi accused. There was old enmity between Munni Devi on the one hand and the deceased as also his family on the other. A case u/s 107/116 Cr.P.C. was pending between the two sides before the S.D.M., Auraiya. In the eventful night, the complainant Ram Naresh, his father Gore Lal and sister Vimla Devi PW 2 were sleeping at their door after taking meals. At about 11.30 P.M. the accused Rajendra, Suresh and Lal Bihari armed with country made pistols, accused Hakim and Kanhai having Dharias (sharp edged weapons), accused Genda Lal armed with lathi and accused Munni Devi empty handed came at the door of the complainant. The dog of the complainant started barking as a result of which they woke up. The complainant Ram Naresh sat at his cot and saw all the accused in electricity light. He tried to stand up but accused Genda Lal struck lathi blow on him. Gore Lal- father of the complainant tried to run away, but the accused Rajendra fired from country made pistol due to which he fell down at his door on receiving injury. The complainant Ram Naresh ran away towards north raising alarm. The accused Suresh and Lal Bihari also opened fire from their country made pistols. Vimla Devi- sister of the complainant rushed to the rescue of her father, but injury was caused on her head by the accused Kanhai. Attracted by alarm, the witnesses Mewa Lal PW 1 and several others rushed to the spot challenging the accused. The accused dragged the father of the complainant towards the door of Sobaran to the southern side where blows of Dharia were also inflicted on him. On the challenge of the village people, the accused ran away towards the east hurling abuses. After the departure of accused the village people took Gore Lal to his door where he died the same night. Due to fear of accused, the complainant could not go to the police station for lodging F.I.R. in the night. He had, however, found four empty cartridges of 12 bore and three empty cartridges of 315 bore lying at his door which were also produced by him at the police station at the time of lodging the F.I.R. On the basis of the F.I.R., chik report was prepared by Constable Vijai Pal PW 4 and a case was registered by entry in the G.D. He also prepared memo Ext.Ka-4 relating to four empty cartridges of 12 bore and three empty cartridges of 315 bore produced at the police station by the complainant. The complainant Ram Naresh and Vimla Devi were sent for their medical examination. The investigation was taken up by S.O. Rampal Rawat PW 6 who reached at the spot, prepared the inquest report of the dead body of the deceased and other necessary documents. He busied himself in the activities related to the investigation of the case. The dead body after being sealed was sent for post mortem which was conducted on 7.6.1989 at 3 P.M. by Dr P.K. Verma PW 7. The deceased was aged about 48 years and about 1 1/2 days had passed since he died. The following ante-mortem injuries were found on his person:

Lacerated wound 3 cm x 1 cm x cranial cavity deep, 8 cm above right ear, brain matter coming out of the wound (underlying skull bone fractured).

Lacerated wound 2 cm x 1.5 cm x cranial cavity deep just above and behind right ear. Underlying skull bone fractured, brain matter coming out of the wound.

Incised wound 9 cm x 1 cm x bone deep on the back of head just below occipital, the underlying skull bone partially cut.

Horizontal incised wound 9 cm x 3 cm x bone deep on the back of neck, underlying vertebrae partially cut.

Multiple gunshot wounds (caused by individual pellets) on the outer aspect of right elbow in an area of 10 cm x 5 cm, seven small pellets recovered from the wounds. The wounds were muscle deep. Each wound surrounded by collar of dark brown rim.

Gunshot wound of entry 1 cm x 1 cm on the right side of lower part of chest, 20 cm below right axilla, the surrounding skin in 10 cm area blackened and tattooed with scorching.

Gunshot wound of exit of injury No. 6 on the left side of chest wall 25 cm below left axilla. Size 2 cm x 2 cm and margins averted.

Gunshot wound (grazing) 3 cm x 1 cm x skin deep on the outer aspect of middle of left forearm. Tattooing and blackening around the wound present in an area of 8 cm.

Gunshot would of entry on the outer aspect of left side of chest wall, 10 cm above injury No. 7. Measurement of wound 1 cm x 1 cm x thoracic cavity deep. The margins inverted. Tattooing, blackening and scorching present. One bullet recovered from the left lung.

Contused abrasion on the bowing prominence of right knee.

The cause of death was shock and haemorrhage as a result of ante-mortem injuries.

The complainant Ram Naresh was medically examined by Dr S.K. Singh PW 5 at Phaphund on 6.6.1989 at 10.10 A.M. The following injuries were found on his person:

Contusion on right shoulder vertically, size .07 cm x 3 cm, red in colour, tender.

Abrasion left knee joint 2 cm x 1.5 cm x red soft, crust found.

Both injuries were simple in nature. Injury No. l had been caused by blunt object and injury No. 2 by friction. Duration was about half day.

Vimla Devi PW 2 was medically examined by the same Doctor the same day at 10.30 A.M. and the following injuries were found on her person:

Contusion right shoulder vertically, size 6 cm x 2 cm, red in colour, tender.

Incised wound on upper border of left forehead vertically, size 2.5 cm x 1/4 cm x bone deep, hair cut, watery discharge from wound with foul smell.

Incised wound on front of parietal region, size 4 cm x 1 cm x bone deep, watery discharge from wound with foul smell.

All the injuries were simple in nature. Injury No. l had been caused by blunt object whereas injuries No. 2 and 3 had been caused by sharp object and they were about half day old.

In support of its case, the prosecution examined seven witnesses. Out of them Mewa Lal PW 1 and Vimla Devi PW 2 were eyewitnesses. Santosh Kumar PW 3 was the scribe of the F.I.R. Rest were the Doctors and police personnel including Investigating Officer.

The accused respondents pleaded false implication.

In this case the so-called eyewitness Mewa Lal PW 1 turned hostile and did not support the prosecution case. As mentioned earlier, the injured eyewitness Ram Naresh (informant) died in some accident before his evidence at the trial could be recorded. The trial judge recorded acquittal primarily on the ground that the sole testimony of Vimla Devi PW 2 was incapable of proving the accused to be guilty in view of the inconsistencies surfacing on the scrutiny of her evidence and other features of the case.

We have heard Sri M.C. Joshi, learned A.G.A. from the side of State and Sri V.C. Tiwari, learned Senior Advocate assisted by Sri A.K. Awasthi from the side of the accused respondents. The record has been summoned which we have carefully perused to cross-check the findings of the lower court. It has been urged by learned A.G.A. that Vimla Devi PW 2 was an injured and very natural witness of the incident which had taken place at her house at the dead of night and, therefore, her testimony could not be disbelieved. According to him, the acquittal is based on manifestly erroneous appreciation of the evidence and is liable to be reversed. On the other hand, learned counsel for the accused respondents has vehemently urged that the testimony of Vimla Devi PW 2 did not at all prove that all or any of the accused had participated in the commission of this crime. Therefore, they were entitled to be acquitted as has rightly been done by the trial judge.

After bestowing our anxious thought to the arguments advanced at the bar in the light of the evidence on record and other attending circumstances, we find that the acquittal recorded by the trial judge is quite apt, justified and reasonable based on proper evaluation of the evidence in judicial scale. We propose to give reasons for our such conclusion. The factual position was that the case wholly rested on the testimony of the injured witness i.e. Vimla Devi PW 2 (daughter of the deceased Gore Lal and sister of the complainant Ram Naresh). As stated earlier, Ram Naresh who himself was the injured and maker of the F.I.R. died in some accident before his evidence could be recorded at the trial in this case. It goes without saying that F.I.R. is not a substantive piece of evidence. It has corroborative value or may be used to contradict the maker of it as per Section 145 of the Evidence Act. Since the informant Ram Naresh died in some accident (and not owing to the injuries sustained in this incident), what he stated in the F.I.R. could not be read in evidence u/s 32(1) of the Evidence Act, because the condition for the application of the said provision of law is that the statement made by the person concerned must relate to the cause of his death or as to any of the circumstances of the transaction which resulted in his death and the case must be where the cause of person''s death comes into question. Ram Naresh died in some accident. Of course, he allegedly sustained injuries in this incident but the same were not the cause of his death. Therefore, the F.I.R. lodged by him does not have any evidentiary value. Mewa Lal PW 1 spoke about the happening, but stated that he did not see any of the accused participating in this crime. At the time of incident, he was sleeping at his door and had woken up. On commotion he had reached the house of Gore Lal when others had also reached. Obviously, the testimony of this witness only proved the happening in which Gore Lal was murdered and his son Ram Naresh and daughter Vimla Devi were injured at their house. Beyond that, the testimony of Mewa Lal PW 1 could not render any help to the prosecution in bringing home the guilt to the accused. We should point out that factum of the incident is not even challenged by the accused persons. Their defence was that they did not participate in this incident. It is to be noted that Mewa Lal PW 1 is the own cousin of the deceased Gore Lal. There was no apparent reason to presume that he crossed over to the side of the accused.

Situation boils down to this that there was the sole testimony of the injured witness Vimla Devi PW 2 (daughter of the deceased and sister of the informant Ram Naresh). She being an injured of the same incident, her presence at the spot was beyond question. The incident had occurred at about mid night at her door and obviously she was a most natural witness. The injury sustained by a witness in the same incident only guarantees his/her presence but not the truth of his/her evidence. The evidence is required to be tested of the anvil of reliability according the evidentiary standard. The point of the matter is that her testimony did not fit in the scheme of things and the prosecution story as put forth. It is clear from her statement that Munni Devi accused was the cousin sister of her father Gore Lal deceased. In the earliest version of the F.I.R., old enmity of the family of the deceased with Munni Devi was alleged and a case u/s 107/116 Cr.P.C. was also allegedly pending between the two sides. Vimla Devi PW 2 stated that though the other accused were neither the members of the family of Munni Devi nor her relatives, but they were her supporters. The accused other than Munni Devi were of other families excepting that Suresh was the son of Genda Lal. It also came down from her statement that earlier to the present incident, her brother Ram Naresh had assaulted Munni Devi and her mother. The report of that incident was lodged by Rajendra accused against Ram Naresh. Ram Naresh had gone to jail with regard to that incident and had been bailed out. Suresh was a witness against Ram Naresh in the F.I.R. lodged by Rajendra with regard to that incident. In view of this background, Vimla Devi PW 2 could not be deemed to be a wholly reliable witness. We should point out that falsity may not necessarily be the reason for rejection of the testimony of an injured witness. May be that he or she gave evidence on the basis of vague impressions, imagination or past background arousing suspicion against certain person(s).

A careful scrutiny of the testimony of this witness was incapable to prove the guilt of any of the accused. There were many holes. Munni Devi accused was herself allegedly empty handed. The other accused did not have any direct enmity with the family of the deceased. Broadly speaking, it was improbable that Munni Devi having direct enmity with the family of Gore Lal would only play second fiddle by simply remaining present at the scene of occurrence and the other accused would stampede themselves with deadly weapons to commit this gory crime despite having no direct enmity with the deceased Gore Lal or his family. Further, there is nothing to indicate that they were of hazardous character and could go to commit such a crime in their own village with open faces without taking any precaution to conceal their identity. Moreover, there is no direct evidence to this effect either that there was any quick igniting cause for the present incident.

At the police station while lodging the F.I.R., Ram Naresh had handed over seven empty cartridges, four of 12 bore and there of 315 bore as having been collected from the spot. The evidence of Vimla Devi PW 2, however, was that she had heard the boom of only three shots. It is also to be noted from the post mortem report of the deceased that he had received four gunshot wounds of entry, out of which ante-mortem injury No. 8 was of grazing.

We also note that she did not name Hakim Singh accused at all. Instead, she deposed that Genda Lal was armed with lathi and also with Dharia. It was contrary to the case as set up in the F.I.R. that Hakim Singh was armed with Dharia and Genda Lal had lathi only. The start of the incident was outside the house of the deceased as shown by letter ''A'' in the site plan. The testimony of Vimla Devi PW 2 was that her father had been shot at. Three shots had been fired on her father when he was still on his cot outside his house. Receiving shots, he had rolled down the cot on the Chabutara and seeing him in this state, she had rushed from her cot to him. Then she was struck a Dharia blow on her head by Kanhai accused. Receiving Dharia blow she started bleeding profusely from her head which filled in her eyes too. Gore Lal was then dragged by the accused to the door of Sobaran. The second part of the incident took place where he was given Dharia and lathi blows. She herself remained at her Chabutara. From there, the house of Sobaran shown by letter ''B'' in the site plan in the southern side (where second part of the incident took place) was not even visible because of turns in between and the distance being about 100-125 paces as per her testimony. After running away of the culprits, her father Gore Lal was brought to Chabutara of his own door. To be short, Vimla Devi PW 2 did not see the second part of the incident. She was very definite that only one Dharia blow had been struck on her head by the accused Kanhai. The fact, however, is that she received two incised wounds and a contusion also on right shoulder. The first incised wound was on left forehead vertically and second one on front of parietal region. Even if it is assumed that two incised wounds could be produced by a single Dharia blow, there was no explanation about contusion suffered by her on right shoulder.

Long and short of the analysis of the testimony of Vimla Devi PW 2 is that it is full of incongruities which cannot be reconciled with the main features of the prosecution case. Of course, she was an injured witness, but inimical too with some of the accused. There were inherent weaknesses surfacing from her evidence, giving a blow to the prosecution case as set up right from the beginning. In the wake of the facts and other attending circumstances of this case, the sole testimony of the injured witness Vimla Devi PW 2 was incapable of proving that all or any of the accused participated in the commission of this crime. The acquittal recorded by the trial judge does not call for any interference and this appeal is liable to be dismissed.

The government appeal is dismissed.

Judgment be certified to the lower court immediately.