Allahabad High Court
Sher Singh And Others vs State Of U.P. on 27 May, 2020
Equivalent citations: AIRONLINE 2020 ALL 1140
Bench: Sunita Agarwal, Deepak Verma
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved AFR Case :- CRIMINAL APPEAL No. - 5 of 1996 Appellant :- Sher Singh And Others Respondent :- State of U.P. Counsel for Appellant :- U.N. Sharma,R.S. Prasad Counsel for Respondent :- A.G.A. Hon'ble Mrs. Sunita Agarwal,J.
Hon'ble Deepak Verma, J.
1. Heard Sri Anoop Trivedi learned Senior Advocate assisted by Sri Abhishek Shukla, learned Advocate for the appellants and Sri Jai Narayan learned A.G.A.-I, for the State-respondent.
2. This appeal is directed against the judgment and order dated 22.12.1995 passed by the Additional Sessions Judge, Muzaffarnagar in Sessions Trial No. 51 of 1993 (State vs. Sher Singh and others) for offence under Section 302 readwith Section 34 IPC, registered at the Police Station Kandhala, District Muzaffarnagar. Four appellants herein have been convicted and sentenced for life for the offences under Section 302 readwith Section 34 IPC, out of whom one appellant no. 3 (Sadhu) had died during pendency of the present appeal.
3. A written report dated 12.8.1992 was filed by Jaiveer Singh son of Neturam, resident of village Garhi Ram Kaur, Police Station Kandhala, District Muzaffarnagar at about 9:45 AM, stating therein that, at about 8:00 AM, while his brother Ramesh was going to the field from his house carrying 'Bogie' 'Jhhota' and food, as soon as he reached at the 'Chak Road' in front of the field of Jai Singh son of Multan, four accused persons named in the FIR had murdered him by firearms. The name of the accused persons indicated in the first information report are Sher Singh son of Ram Singh, Sahendra son of Ram Singh, Sadhu son of Swarup and Gulab son of Malkhan. It is averred therein that the incident was witnessed by Atar Singh son of Chhota, Sahi Ram son of Chhajju and Others. The motive to commit the crime as indicated therein was the litigation going on between the parties and the resultant animosity. The written report was scribed by Brijpal Singh son of Prakash Chand, resident of the same village.
4. As the prosecution story unfolded, police had reached the spot and recovery memos were prepared of the blood stained and plain earth; one steel glass, a bowl and a box of Aluminum with lid and a rubber slipper (Relaxo No. 7); an empty cartridge 12 Bore Red Colour at the bottom of which KF Special 12 Indian Ordinance Factory was written and another empty cartridge 315 Bore Brass at the bottom of which 8MM KF91 was written, all items found besides the dead body. They are marked as Exhibits 'Ka-10', 'Ka-11' and 'Ka-12'. The inquest report marked as Exhibit 'Ka-7' mentioned the time of its commencement as 10:15 AM on 12.8.1992 and completion at about 11:15 AM. There is also a mention therein of the recovered empty cartridges and articles from besides the dead body as kept in the recovery memos mentioned above.
5. A careful reading of the inquest report indicates that the dead body of Ramesh Singh was sealed in a black blanket and handed over on 12.8.1992 to the Constables Kishori Lal and Vijay Pal and that they moved to the Sadar Hospital, Muzaffarnagar alongwith relevant papers for postmortem. The postmortem was, however, conducted on 13.8.1992 at about 10:15 AM. It is mentioned in the postmortem report that the body brought by Constables Kishori Lal and Vijay Pal was received in 'Sealed' state. The estimated time of death mentioned therein is about one day.
6. The external condition of the dead body as described therein is as under:-
"Average built body, Rigor Mortis present in upper and lower extremities. Adbomen distended , greenish discolouration present over lower part of abdomen, face bloated, bloody mucous coming out from nostrils, genital organ slightly swollen, Surgical dressing present over left little finger over a leeking wound.
Ante-mortem injuries are:-
"(i) Gunshot wound of entrance present on right side face just in front of ear, margins are irregular & inverted. With blackening present, direction from right below to left upwards. Right temporal bone, Right middle cranial fossa fractured underneath.
(ii) Gunshot wound of entrance 2c.m. x 1½c.m. x muscle present on right Lateral aspect of neck 8c.m. below from right ear lobe, margins of the wound are irregular & inverted, blackening present, direction form right side to left side back & below.
(iii) Gunshot wound of exit 7 c.m. x 4 c.m. x through its rough with injury no. (ii) present on back of left chest upper part 2 c.m. below & left of 7th cerebral spine, margins of the wound are irregular & inverted.
(iv) Gunshot wound of entrance 4½ c.m. x 3½ c.m. x chest and abdomen cavity deep present on posterior lateral aspect of right chest lower part, 12 c.m. below from inferior angle of right scapula & 14 c.m. away from mid line, margins of the wound are irregular & inverted, blackening, scorching and tattooing present, direction from right back to left front, 7th & 8th right ribs fractured underneath. Right dome of diaphragm, right lower to lope of right lung, liver lacerated body underneath."
On internal examination, it was found that:-
"brain and membranes of the skull were lacerated at places, Right middle cranial fossa fractured, Rt. lacerated under injury of chest, Rt. pleural cavity containing one point of blood. Rt. lungs lacerated. Heart membrane lacerated at places, cavity containing 50 ml. blood. Abdomen membrane lacerated at places, cavity containing 2 point of blood, stomach empty, small intestine containing gases and large intestine containing gases & faecal matter. Liver lacerated.
Few pellets, bullets were taken out from the body of deceased and were sealed.
Cause of death is due to shock & Hemorrhage as a result of ante-mortem injuries noted above. The estimated time of death is about one day ago.
7. The prosecution produced two witnesses of fact namely Jaiveer Singh, the first informant as PW-1 and Sahi Ram son of Nain Singh as PW-2 being eye-witnesses of the incident. Amongst formal witnesses, PW-3 Dr. M.M. Sharma, who had conducted postmortem, proved his report as Exhibit 'Ka-2'. In cross-examination, PW-3 stated that all papers pertaining to the postmortem were received in the Mortuary on 13.8.1992 at about 10:00 AM, and the said fact had been mentioned in the Challan Lash Paper No. 14/8. When confronted, PW-3 stated that since gases and faecal matter were present in the Large Intestine, it was possible that death was caused on 12.8.1992 in the morning between 5-6 AM before deceased went to ease himself. On a suggestion, he replied that in the event of having meal, stomach would be empty within 5 to 6 hours. As to the nature of injuries, he replied that injury no. 4 might have been caused from a distance of about 3 to 4 ft.
The Investigating Officer had appeared in the witness box as PW-4 and proved that the site plan was prepared in his handwriting and signature, exhibited as Exhibit 'Ka-3'. The accused Sher Singh was arrested on 21.8.1992. The statements of the eye-witnesses Sahi Ram son of Chhajju, Achpal and another Sahi Ram son of Nain Singh were recorded on 23.8.1992. The statement of other accused persons, namely Sahendra was recorded after he surrendered in the Court of the Chief Judicial Magistrate, and of Sadhu and Gulab Singh were recorded in the District Jail after they surrendered. The charge sheet was submitted in the Court on 20.9.1992 and was proved being his handwriting and signature as Exhibit 'Ka-4'.
PW-5 is the Head Constable Sridatt Tyagi who had proved the Chik FIR and GD entry of about 9:45 AM of the registration of the first information report being in his handwriting and signature as Exhibit 'Ka-5' and 'Ka-6'. He has denied the suggestion of the FIR being lodged after deliberations with the Investigating Officer. PW-6 Constable Chetram proved the recovery memos and inquest report being in his handwriting and signature (Exhibits 'Ka-8' to 'Ka-13'). On being confronted about overwriting in the inquest report, he explained that the same had occurred because of fault of the pen. He denied suggestion of preparation of inquest without the existence of first information report of the incident. Constable Kishori Lal appeared in the witness-box as PW-7 and proved that the dead body was handed over to them for postmortem and it was sealed after the inquest. They received the dead body on 12.8.1992 at about 11:15 AM and took it to the Mortuary through tractor, which was about 65-70 kms. from the place of the incident. They reached back to the police station on the next day. The first informant was not accompanying them whereas other family members were with them.
By reading the statement of PW-7, learned Senior Advocate appearing for the appellants pointed out that PW-7 had deposed that the dead body was handed over to him after inquest in the Jungle of Gram Garhi Ram Kaur. The submission, thus, is that the statement of the first informant in the written report that his brother was done to death at the Chak Road in front of the field of Jai Singh is wrong. The place of incident mentioned in the Chik FIR is also the Jungle of Gram Garhi Ram Kaur located at a distance of about 6 kms. towards South-East of the police station. The place of incident being the Chak Road has neither been mentioned in the first information report nor there is any evidence on record to prove the same. Further, the Investigating Officer though collected blood stained and plain earth allegedly from the place of incident but the same was not sent for chemical examination so as to ascertain the place of occurrence or that the blood collected by the police from the site was in fact human blood. There is no recovery of weapons of offence allegedly committed by four persons and as such there was no question of tallying two empty cartridges (one of 12 Bore and another of 315 Bore) recovered from the spot. The submission, thus, is that the accused persons could not be connected with the crime-in-question by bringing any cogent evidence.
8. As far as the eye-witness account is concerned, it is vehemently urged that the statement of the first informant as PW-1 in the Court that he was also going to the field on foot behind the 'Bogie' is nothing but a material improvement in the narration made by him. The said fact is conspicuously missing in the first information report. By reading the written report submitted by PW-1, it is contended that in his earliest account of the incident, he did not even mention that he was present on the spot or had seen the incident. His narration in the first information report gives a clear indication that the incident was seen by other villagers namely Atar Singh, Sahi Ram and some more persons (unnamed). That means the report of the incident was made by him on the information received about the occurrence from other alleged witnesses. For the first time, in his deposition before the Court, PW-1 gives detail narration of the incident, which as urged by the learned counsel for the appellants, is nothing but an improvement.
9. The submission is that PW-1 was not present at the place of incident, inasmuch as, deceased Ramesh Singh was killed in the late night or early hours of the morning on 12.8.1992. No one had actually seen the incident and for this reason the names of eye-witnesses have been vaguely indicated in the written report lodged by PW-1, whereas he did not mention himself as an eye-witness. The names of other two witnesses who were related to him was introduced in his deposition in the Court for the first time, whereas two others, whose names have been mentioned in the first information report, were also related to the first informant, all being members of the immediate extended family. A suggestion in this regard has been given to PW-1 in the cross-examination but all questions pertaining to his relation with the witnesses were answered in an evasive manner. It, however, became clear that Atar Singh, Achpal, Sahi Ram son of Chhajju and another Sahi Ram son of Nain Singh, all the alleged witnesses were related to him. Further, it was admitted by PW-1 in the cross-examination that accused Sher Singh contested election of Pradhan against Jaipal and PW-1 was supporter of Jaipal. It has also come up in the deposition of PW-1 that his brother Munna was an accused in the murder of brother of Gulab (one of the accused). On a suggestion given by the defence that no independent witness had been examined, PW-1 averred that Sahi Ram and Atra were working at about 100 paces towards North from the place of incident. PW-1 was also confronted on the fact that he did not mention himself as an eye-witness in the first information report, in reply he states that he dictated the said fact but it was not known as to why it was not written there.
10. Learned Senior Advocate for the appellants further pointed out from the deposition of PW-1 in the cross-examination that according to him, deceased had his meal at about 8:00 AM, i.e. before he proceeded to the field. PW-1 states that the place of incident was about 1½ kms. of the village and the first informant was about 100 paces behind the deceased. The written report was scribed at the place of incident by Brij Pal who brought papers from his Boring. They then went to the police station between 9:00 to 09:15 AM through motorcycle. PW-1 states that his brother was dragged to the ground and was not killed on the 'Bogie'. He states that the blood scattered on the ground was not collected by the Investigating Officer; two empty cartridges were, however, collected from the spot and all papers were prepared on the spot itself.
Placing the above extract of the statement of PW-1, it is vehemently argued by the learned counsel for the appellants that PW-1 cannot be said to be an eye-witness of the incident. His testimony in this regard is wholly unbelievable for the simple fact that according to him, deceased proceeded to the field after having his meal which included Dal and Roti. It is urged that according to the written report dictated by PW-1, his brother deceased Ramesh Singh left his home at 8:00 AM and was murdered within 15 minutes thereafter, at about 8:15 AM. On internal examination of the dead body, as indicated in the postmortem report, both Stomach and Small Intestine of deceased were found empty whereas gases and faecal matter were present in the Large Intestine. This condition of the dead body clearly reveals that deceased was murdered before he defecated. It is, thus, argued that looking to the improvement in the deposition of PW-1 in the Court and inherent improbability of the prosecution story about the time of occurrence of the incident as is evident from the medical report, it cannot be accepted that PW-1 was an eye-witness of the incident. There is a serious doubt about the time and place of occurrence of the incident. The improvements and inconsistencies in the deposition of PW-1 are material and go to the root of the matter to shake the version of the prosecution about PW-1 being an eye-witness. The testimony of PW-1, as such, is to be discarded as a whole. Reliance is placed on the decisions of the Apex Court in Darbara Singh vs State Of Punjab1, Moti vs. State of U.P.2 and State of U.P. vs. Ashok Kumar and another3 to assert that where the oral evidence is totally irreconcilable with the medical evidence, it becomes obligatory for the prosecution to clarify the discrepancy. In case, the prosecution fails to do so, benefit has to go to the accused.
11. It is further contended that another eye-witness PW-2 Sahi Ram son of Nain Singh though stated that he reached the spot of occurrence after hearing the sound of gunshot and saw that Ramesh Singh was hit by the firearm and that Jaiveer his brother was present on the spot, but he has refused to identify the assailants by saying that he had seen them only fleeing away from the spot. And for this reason, this witness was declared hostile and was cross-examined by the prosecution. However, on confrontation with his statement under Section 161 Cr.P.C., he categorically stated that he did not mention the name of the assailants to the Investigating Officer but he did not know as to how their names were mentioned in his statement. He further denied suggestion of being won over by the accused persons.
The submission is that other witnesses who allegedly had seen the occurrence have not been produced by the prosecution nor any independent person who was owner of the surrounding fields had appeared in the witness-box to corroborate either the time or the place of occurrence. The testimony of PW-2 in his examination-in-chief that he reached at the place of occurrence and had seen the first informant being present on the spot, is unbelievable, inasmuch as, his own presence on the spot does not seen to be natural. It is pointed out that PW-2 was not named as witness in the FIR. PW-2 stated that he was going alongwith Achpal another villager and had reached at the place of occurrence, i.e. at the Chak Road near the field of Jai Singh by chance, on hearing the sound of gunshot. Even if, this part of his testimony is believed to be true, at the best, he can be said to be a Chance witness. Nothing has been brought by the prosecution to prove that the presence of PW-2 at the scene of occurrence was natural and it was possible for him to reach the spot in the natural course of events. PW-2 is a hostile witness, according to the learned counsel for the appellants, even this part of his testimony in the examination-in-chief is not to be taken of any assistance to the case of the prosecution. In that event, the entire prosecution case rests on the evidence of solitary witness, PW-1, who happens to be brother of deceased. It is contended that the testimony of solitary witness has to be examined with great care and circumspection and cannot be made basis for conviction unless wholly reliable. On any suspicion about the truthfulness of the solitary witness, his testimony has to be discarded.
Reliance is placed on the decisions of the Apex Court in State of Rajasthan vs. Bhola Singh and another4, Lallu Manjhi and another vs. State of Jharkhand5, Munna alias Pooran Yadav vs. State of Madhya Pradesh6 and Takdir Samsuddin Sheikh vs. State of Gujarat and another7 to assail the same.
12. It is contended that moreover, the presence of enmity between the solitary witness (PW-1) and the accused persons is proved from the cross-examination of PW-1 itself. The alleged eye-witness, thus, is not only a related witness but also an interested one. His testimony has to be discarded for this reason also. In any case, it was incumbent on the prosecution to produce independent witness/persons who were occupying the adjoining fields, as according to the alleged eye-witness, the incident had occurred during day time on the Chak Road. No one whose presence was natural at the scene of occurrence had been produced. Adverse inference, therefore, has to be drawn against the prosecution and the benefit has to go to the accused persons. Reliance is placed on the decision of the Apex Court in State of Uttar Pradesh vs. Punni and others8.
Lastly, placing decisions in Babu and others vs. State of Uttar Pradesh9 and Takdir Samsuddin Sheikh7, it is contended that substantial improvement in the version of eye-witness before the Court and contradiction between oral testimony and medical evidence prove fatal to the whole prosecution case. The trial court has erred in basing conviction on the shaky version of the sole eye-witness ignoring all the above inconsistencies and discrepancies inherent in it. The judgment of conviction of the appellants, therefore, deserved to be set aside and the appeal may be allowed.
13. Learned A.G.A., on the other hand, urged that the incident-in-question is a broad day-light incident. It had occurred at about 8:15 AM and the first information report was promptly lodged at 9:45 AM.
The place of incident indicated in the Chik FIR is the Jungle of Gram Garhi. Jungle of a village or field near the village in the local language is one and the same place. It cannot be assumed that the incident had occurred in a Jungle or a forest away from the village as there is nothing on record to believe so. The first informant is the brother of the deceased. His narration of accompanying the deceased to the field is natural. There are four accused persons whose names were clearly indicated in the first information report being the assailants. The FIR discloses not only the names of two persons as witnesses but indicates that apart from them, others had also seen the occurrence. The empty cartridges of 12 Bore and 315 Bore recovered from the spot support the deposition of PW-1 in the Court regarding weapons in the hands of the assailants. The inquest was done on the same day and soon after it was completed at 11:15 AM, body was sent for postmortem from the place of incident itself. The distance of the Mortuary from the place of incident being 65-70 kms. is clearly mentioned in the deposition of PW-7 Kishori Lal. In the said scenario, if the postmortem was done on the next day i.e. 13.8.1992 in the morning at 10:15 AM, that would not be a factor to create any dent in the story of the prosecution being immaterial. Moreso, when PW-7 categorically proved that he took the dead body to the Mortuary straight way from the place of incident and handed over to the doctor in sealed condition.
Lastly, it is contended that presence of the first informant Jaiveer at the place of incident was also proved by PW-2 Sahi Ram in his deposition in the examination-in-chief, who also belong to the same village. And PW-1 in his deposition in the Court categorically stated that the incident was witnessed by PW-2 Sahi Ram son of Nain Singh. The presence of PW-1 at the place of occurrence, therefore, is corroborated by another eye-witness. Even though PW-2 was declared hostile but this part of his testimony has to be taken as consistent to accept that he had seen PW-1 at the relevant time on the spot of occurrence.
14. In the above scenario, the trial court on appreciation of the entire evidence cumulatively has rightly accepted the prosecution version to base the conviction on the evidence led by it. There is no infirmity in the decision of the trial court. The appeal deserves to be dismissed being devoid of merits.
Reliance is placed on the decisions of the Apex Court in Atmaram and others vs. State of Madhya Pradesh10 and Hiralal Pandey and others vs. State of U.P.11.
15. We have considered the rival submissions made by the learned counsels for the parties and perused the record. The first information report was registered on a written report filed by the brother of deceased. Noticeable is the fact that in the written report which was the first/earliest account of the incident, there is not even a whisper that the first informant was present or had seen the occurrence. The report rather suggests that two named witnesses therein including some other persons had seen the occurrence. The averments of the first information report are in the nature of information given to the police about the murder of Ramesh Singh, brother of the first informant, based on the knowledge gathered by the first informant which seems to be hearsay. There is no mention of the weapons carried by the accused persons (four in number) or their roles in the assault. Virtually no detail as to how incident had occurred has been given, though motive of previous litigation with the accused persons has been clearly indicated in the first information report. For the first time in his deposition before the Court, PW-1 narrates the whole account of the incident while mentioning himself as an eye-witness accompanying deceased to the field. No doubt, FIR need not be an encyclopedia. Each and every detail need not be stated in it. It may not and need not contain all the details of the incident.
It was considered in State of U.P. v. Naresh12 that not naming of the accused in the FIR cannot be a ground to doubt the contents thereof, in case, the statement of the witnesses is found to be trustworthy. It may be that because the informant fully acquainted with the facts lacks necessary skill or ability to reproduce details of the entire incident without anything missing from this. Some people may miss even the most important details in narration. Therefore, missing facts in the FIR cannot be taken as a ground to tilt the balance of the case in favour of the accused.
Reference may also be made, in this regard, to the decisions of the Apex Court in Darshan Singh @ Bhasuri & Ors vs. State Of Punjab13, Eqbal Baig vs State Of Andhra Pradesh14, Rohtash vs. State of Rajasthan15, Animireddy Venkata Ramana & Ors vs. Public Prosecutor, High Court of Andhra Pradesh16 and Ranjit Singh and others Vs. State of Madhya Pradesh17.
However, there cannot be a quarrel that prompt report of the incident with all its vivid details gives an assurance regarding truth of its version and that the allegations may not be an afterthought or having a colourable version of the incident.
It has been held in Yudhisthir vs. State of M.P.18 that any fact if not disclosed in the FIR or during investigation and stated for the first time in trial, that statement would amount to an improvement and may not be relied upon. However, it all depends upon the credibility of witnesses produced by the prosecution to support its story.
It is also a settled legal proposition that minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The Court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence. Minor variations in the statements of a witness cannot be dubbed as improvements as the same may be elaboration of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witnesses liable to be discredited.
The Apex Court in the State Of U.P. vs. M.K. Anthony19 has laid down the principle as to what approach should be adopted by the Court, in a case, where there are some discrepancies and improvements in the statement of the witnesses.
Relevant observations in paragraph '10' of the said report are to be noted as under:-
"10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, draw-backs and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the : root of the matter would not ordinarily permit rejection of the evidence as a whole.
............xxxxxxxxxxxxx.........................xxxxxxxxxxxx..................................... Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. Cross examination is an unequal duel between a rustic and refined lawyer. ....................xxxxxxxxxxxxxxx........"
16. The crux is that it is the totality of the circumstances, which has to be culled out after careful scrutiny and assessment of prosecution evidence and which is to be taken note of. Difference in some minor details which do not otherwise affect core of the prosecution case, even if present, that itself would not prompt the Court to discard the evidence.
17. Keeping this principle in mind, when we carefully appreciate the evidence before us, we find that the first informant, brother of deceased in his statement before the Court, for the first time, gave details of the occurrence. In his examination-in-chief, the first informant (PW-1) stated that his brother was going to the field in a 'Bogie' carrying food for his father. Four accused persons named as Sahendra, Sher Singh, Gulab and Sadhu met him on the way. They stopped the 'Bogie' and dragged deceased to the ground and at that time Shadu exhorted by yelling "मारो साले को गोली", thereafter, Gulab, Sahendra and Sher Singh opened fires from the country-made pistols and gun in their hands. Country-made pistols have been assigned to accused Sahendra and Sher Singh whereas Gulab was carrying gun according to the first informant. All three fires hit the deceased. PW-1 raised cries. Hearing the same, four witnesses Atra, Sahi Ram and another Sahi Ram and Achpal came on the spot. Seeing them, accused persons ran away in the field towards East. After narrating the above, PW-1 states that he was also going to the field on foot behind the 'Bogie'. The above narration of PW-1 in his deposition in the Court has been termed as a material improvement in his testimony by the learned Senior Counsel for the appellants as every such detail is missing in the FIR.
18. It is contended that PW-1 was not present at the scene of occurrence and as such he did not give any detail in the first informant report as he was not sure about the manner of death of his brother. According to the learned Senior Counsel, deceased was assaulted in the late night hours and in the early hours of morning, on the fateful day and no one had seen the occurrence. The entire story was cooked up after the medical evidence were brought in, in consultation with the expert. Not a single fact as noted above from the deposition of PW-1 can be found in the first information report except the names of four accused persons and the alleged motive. It is contended that after postmortem was conducted and the prosecution became sure that three fires hit the deceased, three accused persons were assigned firearms and forth one was given the role of exhortation in the testimony before the Court.
19. Considering the above arguments, we find that crucial question before us, in the instant case, is to ascertain the presence of PW-1, i.e. the first informant on the spot. While doing the same, we may also note that in the margin notes of the site plan, the Investigating Officer indicated that four accused persons came to the spot from opposite directions. As per the description in Note no. 3 of the Margin in the site plan, two accused persons namely Sher Singh and Gulab came out from the field of Jai Singh whereas other two persons namely Sadhu and Sahendra reached at the spot from the field of Nakli and both the fields are opposite to each other. The site plan was prepared at the pointing of the first informant as deposed by him as PW-1 after the inquest was completed as is clear from the description at Note no. 4 in the Margin of place "x", i.e. the place where deceased was assaulted by the accused. The above noted details, surprisingly, are completely missing in the statement of PW-1. He simply stated that all four accused met the deceased on the Chak Road.
20. Amongst other evidences about the presence of PW-1, we further find that PW-2 has been produced in the witness-box to support/corroborate the version of PW-1 projected as an eye-witness of the occurrence though he has not been mentioned as a witness in the first information report. In his deposition before the Court, PW-2 states that he was going to the village alongwith Achpal (another alleged eye-witness) and when they reached in the Jungle near the field of Jai Singh on the Chak Road, he heard the sound of gunshot and upon reaching on the spot, he saw the deceased having been hit by fires while brother of the deceased namely Jaiveer being present on the spot. He then states that he did not identify the assailants as he had only seen them fleeing away from the spot. At this juncture, this witness was declared hostile by the prosecution. Nothing much can be elicited from his cross-examination wherein he simply stated that he did not mention the names of assailants to the Investigating Officer and as to how it was written in his statement under Section 161 Cr.P.C. was not known to him.
21. Having carefully sifted the testimony of this witness (PW-2), keeping in mind that he was declared hostile by the prosecution, we find that he was merely a Chance witness. PW-2 in a casual manner though stated that he was passing the way with Achpal but did not disclose anything more than that, i.e. the reason for his presence near the place of occurrence. Another witness Achpal who was allegedly accompanying him had not been produced in the witness-box, though he has also been mentioned as an eye-witness in the testimony of PW-1 (the first informant). The testimony of PW-2 regarding the presence of PW-1 at the spot of occurrence, therefore, does not carry any weight. We may also note that PW-2 does not state that he reached at the place of occurrence hearing the cries of PW-1 nor he states that other two witnesses namely Atra and Sahi Ram son of Chhajju had also reached or had seen the occurrence. PW-2 as such cannot but be said to be a 'Chance witness' and his testimony in the examination-in-chief, by all standards, cannot be taken as a proof of presence of the first informant PW-1 on the spot.
22. We are, thus, left with the testimony of solitary witness namely PW-1 which is also full of contradictions, improvements and embellishments and as such this witness cannot be categorised as wholly reliable. The material improvements in the deposition of PW-1 (the first informant) have already been noted above. We may further note that in the examination-in-chief, PW-1 stated that he dictated the written report to Brij Pal who scribed the same and readover it to him and thereafter the same report was given by him in the police station to register the case. In the cross-examination, when his attention was drawn to the fact that he did not mention himself as an eye-witness therein, he casually replied that he dictated the said fact but did not know the reason as to why it was not written. This explanation of PW-1 is not acceptable for the reason that in his examination-in-chief he categorically stated that the written report was readover to him after it was transcribed by Brij Pal on his dictation. To our minds, the prosecution has failed to explain this material improvement in the evidence of PW-1.
Further PW-1 was confronted on his relationship with the four witnesses mentioned in his deposition in the Court. Though he evaded answer to all the questions in this regard but from his cross-examination, it can be clearly culled out that PW-1 and four witnesses of the occurrence (mentioned in his deposition) are all family members (belonging to one extended family). According to PW-1, the incident-in-question had occurred in the broad day-light at about 8:15 AM when normally the villagers are working in their fields. No independent witness or owner of the adjoining field who may have reached the spot or had seen the occurrence had been produced by the prosecution nor there is any whisper in the entire evidence that other villagers, apart from four witnesses, had also seen the occurrence. The Investigating Officer admitted in the cross-examination that he did not investigate Jai Singh and Nakli whose fields were adjoining to the place of occurrence. He, however, deposed that the statement of witness Atar Singh was recorded at the place of occurrence but he has not been produced in the witness-box to prove the occurrence. From the deposition of the Investigating Officer (PW-4), it further transpires that statement of other three alleged eye-witnesses namely Sahi Ram son of Nain Singh, another Sahi Ram son of Chhajju and Achpal were recorded only on 23.8.1992.
23. It has also come in evidence that the first informant and accused persons were harbouring ill-will against each other. A suggestion was given to PW-1 in the cross-examination that Sher Singh contested election for the post of Pradhan against Jaipal and PW-1 was supporter of Jaipal. As against other accused persons, it has come up that Munna brother of PW-1 (Jaiveer) was a named accused in the murder of brother of Gulab Singh and Sadhu (another accused) was a witness in that case. Some litigation was also going on between the first informant and accused Sahendra in a proceeding drawn by later. Previous enmity as a result of litigation between the rival parties is also mentioned as a motive of murder in the first information report itself. We cannot loose sight of the fact that enmity is a two-edged sword. It may be a reason for murder or a reason for false implication of the accused persons. In view of the proof of enmity between the first informant and the accused party, material contradictions/omissions in the first report drawn by PW-1 become much more important. One more circumstance, which has been brought before us from the inquest report is that the dead body was sealed in a black blanket. The Investigating Officer as also the Constables who were entrusted the dead body for taking it to Mortuary for the postmortem have deposed that the body was sealed on the spot after inquest was completed and straightway sent to the Mortuary for postmortem. PW-7 proved that the dead body remained in his custody and supervision after it was handed over to him at the place of occurrence till it was handed over to the Doctor for postmortem. PW-7 also states that the first informant was not accompanying him to the Mortuary. Whereas, PW-1 in cross, deposed that the body was taken to the police station from the place of occurrence by the Investigating Officer after inquest was completed and he also accompanied them. He states that it was kept in the police station for two hours and was sealed therein only, the entire process took about 1½ hours, though he denied the suggestion that the report was drawn after the dead body was sealed. From the above conspectus of facts, a doubt arises in the minds of the Court about the truthfulness of the prosecution story. At least, it can be seen that PW-1 is not a truthful witness, wholly reliable one.
24. Giving a word of caution about the appreciation of testimony of single witness, the Apex Court in Vadivelu Thevar vs. State of Madras20 has observed that when faced with the testimony of a single witness, the Court may classify the oral testimony into three categories namely, (i) Wholly reliable, (ii) Wholly unreliable, (iii) Neither wholly reliable nor wholly unreliable.
It is said therein that there may not be any difficulty in accepting or discarding the testimony of the single witness in the first two categories. The difficulty arises in the third category of cases. Where the single witness is found to be in the category of neither wholly reliable nor wholly unreliable, the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial before acting upon the testimony of the single witness.
25. In the case at hand, having categorized PW-1 as a witness whose testimony can neither be wholly reliable nor wholly unreliable, we are proceeding to look for other material particulars brought on record by the prosecution. In this process, we found another very material aspect of the matter. According to the medico-legal report, in the internal examination, the Doctor PW-3 found that the stomach of deceased was empty. His Small Intestine was also empty whereas Large Intestine contained gases and faecal matter. It is vehemently contended on behalf of the appellants that the above referred narration fully fortifies their stand that the murder took place in the late night hours or in the early morning before the deceased went to ease himself.
26. Having noticed the discrepancies, improvements and inconsistencies in the oral evidence in the foregoing paragraphs of this judgment, we find that the above-mentioned circumstance almost clinches the issue. PW-1 was cross-examined on the above aspect and he categorically deposed that deceased had his meal in the morning before he left the house at about 8:00 AM and that he ate Dal and Roti. The place of incident was about ½ km from the village. The deceased was shot within 15 minutes of leaving his house. In the examination-in-chief, PW-1 also stated that deceased was carrying food for his father. While considering the above categorical statement, we may also note that normally villagers have their meal in the morning before going to the field and if the above evidence of PW-1 is believed to be true, then the same itself is completely demolished by the medical evidence, which shows that both the Stomach and Small Intestine were empty. This condition of the dead body would indicate that at or before the time of murder, the deceased had not taken his meal and the murder must have taken place at least 4-5 hours after he had his last meal. The Doctor on a suggestion of the defence had stated that it takes about 5-6 hours in digestion of 'Roti' and Stomach becoming empty. We cannot doubt or dispute this version of the Doctor. It is, thus, possible that the deceased was done to death much after his night meal and much before his morning meal. This circumstance raises a serious dispute as to the actual time of the incident which is a very much important factor in this matter in finding out whether the case presented by the prosecution is true or not. This discrepancy also materially affects the credibility of evidence of eye-witnesses because if the incident had occurred in the early hours of the morning or late night, a doubt is created in our minds as to the presence of the eye-witnesses. The eye-witness (PW-1) is real brother of deceased and he categorically stated that deceased left the house after having his meal and he was carrying food in the tiffin for his father. We have no reason to doubt the statement of PW-1 about the timing when deceased took his last meal. The prosecution has utterly failed to explain this material discrepancy found in the oral version and medical evidence. The trial court surprisingly, has completely ignored this aspect of the matter.
27. Thus, in the instant case, in view of the shaky version of the sole eye-witness and the surrounding circumstances, time of death becomes a material factor to verify the presence of the eye-witnesses. It was obligatory for the prosecution to have clarified the discrepancy between the medical evidence and the oral evidence. The prosecution having failed to do so, in our opinion, in view of the serious doubt as to the time of incident, the presence of eye-witnesses at the place of occurrence and his narration of the incident also become doubtful.
28. In so far as the issue of inconsistency between medical evidence and ocular evidence is concerned, the law is fairly well settled, that unless the oral evidence available is totally irreconcilable with the medical evidence, the oral evidence would have primacy. And in the event of contradictions between medical and ocular evidence, the ocular testimony of a witness will have greater evidentiary value vis-à-vis medical evidence and only when medical evidence makes the oral testimony wholly improbable, the same becomes a relevant factor in the process of evaluation of such evidence. It is only when the contradiction between the two is so extreme that the medical evidence completely rules out all possibilities of the ocular evidence being true at all, that the ocular evidence is liable to be disbelieved. Reference State of U.P. v. Hari Chand21, Bhajan Lal @ Harbhajan Singh and Ors. v. State of Haryana22 and Darbara Singh vs State Of Punjab1.
29. Proceeding further, we may also note that there are various defects in the investigation. No effort appears to have been made by the Investigating Officer to recover the weapons of offence. The blood stained earth and plain earth though collected but not sent for chemical examination. The place of incident though narrated as the Chak Road in front of the field of Jai Singh but the same is mentioned as Jungle Gram Garhi of Village Rampur in the Chik FIR, a place at a distance of about 6 kms. from the police station. There is no reference of 'Bogie' in the site plan or in the entire prosecution case on which deceased was allegedly going to the field. The recovery memo Exhibit 'Ka-11' records recovery of one steel bowl, glass and an aluminum box with lid which were lying besides the dead body. In the deposition of PW-1, it has come up that deceased was carrying food for his father. The food in the aluminum tiffin box found besides the dead body is completely missing in evidence. It is not indicated in the recovery memo as to whether the aluminum box with lid was filled with the food or was empty or food was scattered besides the dead body. There is complete silence about the presence of father of deceased in the field or else where at the time of incident. How the dead body was sealed in black blanket? The Court is just left in doubt guessing whether the deposition of sole eye-witness is true or not.
30. The genesis or root cause of the incident though is narrated as previous enmity between the parties on account of litigation, but when seen from another angle, it can be said to be a reason for false implication of four accused persons. Sole eye-witness is found to be an interested witness on account of his relationship with the deceased and also being inimical to the accused party. His version is full of discrepancies in material particulars and could not be corroborated by the medical and other evidence on record. The ocular version of PW-1 in the Court is a substantial improvement from his earliest version of the incident as contained in the FIR.
31. On cumulative appreciation of evidence brought by the prosecution, we find that the defects in the investigation becomes irrecoverable in view of inherent improbabilities, omission and material contradictions found in the testimony of sole eye-witness who is not only an interested witness but is also partisan or inimical to the accused persons.
32. We are, therefore, afraid to place reliance on the sole testimony of PW-1 for the purpose of recording conviction of all the accused persons.
At this juncture, we may note the observations of the Apex Court in Jayabalan vs. Union Territory of Pondicherry23, wherein it is said that the Court must be cautious in appreciating and accepting the evidence given by the interested witnesses. Though the approach of the Court, while appreciating the evidence of such witnesses must not be pedantic and the Court must not be suspicious of such evidence but be cautious. The primary endeavour of the Court must be to look for consistency.
In Dalip Singh Vs. State of Punjab24, the Apex Court has observed that in case of enmity, there may be a tendency to drag in an innocent person as an accused against whom a witness has a grudge. A witness who is normally to be considered independent may likely to be tainted. This observation, however, has been clarified to have been made as a general rule of prudence and not as a rule of law. It is further clarified that each case must be judged on its facts and must be limited and be governed by its own fact.
In Raju alias Balachandran and others vs. State of Tamil Nadu25 after appreciation of long line of decisions on the issue of evidence of related or interested witness, it is said that evidence of such a witness should be meticulously and carefully examined. In a case where the related and interested witness may have some enmity with the assailant, the bar would need to be raised and the evidence of the witness would have to be examined by applying a standard of discerning scrutiny. But it would again be only a rule of prudence and not one of law.
33. Applying the rule of caution and prudence in appreciating the evidence of interested and partisan sole eye-witness, in the instant case, we find that possibility of death having been caused in the late night or in the early hours of the morning before deceased had defecated seems more probable. In a criminal trial, cardinal rules of criminal jurisprudence which have to be kept in mind are that there is a presumption of innocence in favour of the accused. The burden is on the prosecution to prove the guilty beyond all reasonable doubts. If two views of the matter are reasonably possible, golden thread of rule which runs through the web of administration of justice in criminal cases is that the view which is favourable to the accused should be adopted. The accused is entitled to the benefit of doubt. The doubt should, however, be reasonable and should be such which rational thinking men will reasonably, honestly and conscientiously entertain and not a timid mind which fights shy - though unwittingly it may be - or is afraid of the logical consequences, if that benefit was not given. It other words, it is "not the doubt of a vacillating mind that has not the moral courage to decide but shelters itself in a vain and idle scepticism". The rule does not warrant acquittal of the accused by resorting to surmises and conjunctures or fanciful considerations. [See The State of U.P. vs. Samman Dass26 and Yogesh Singh vs. Mahabeer Singh and others27 ]
34. Having carefully scrutinized/sifted the entire evidence produced in this case and the surrounding circumstances, we are satisfied that the prosecution had not been able to prove its case beyond all reasonable doubts, arose in the minds of the Court as discussed in the preceding paragraphs of this judgment. The prosecution evidence is not such which would bring home the guilty persons. The benefit of doubt certainly has to go to the accused persons. The three (3) surviving accused persons are, therefore, entitled to be acquitted of all the offences of which they were charged. Their conviction is liable to be set aside.
35. Accordingly, the judgment and order dated 22.12.1995 passed by the Additional Sessions Judge, Muzaffarnagar in Sessions Trial No. 51 of 1993 (State vs. Sher Singh and others) convicting and sentencing the accused-appellants namely Sher Singh (appellant no. 1), Sahendra (appellant no. 2) and Gulab (appellant no. 4) for offence under Section 302 readwith Section 34 IPC, registered at Police Station Kandhala, District Muzaffarnagar, is set aside.
The appeal is hereby allowed.
The appellants are on bail. Their sureties shall stand discharged.
The office is directed to send back the lower court record along with a certified copy of this judgment for information and necessary action.
The compliance report be furnished to this Court through the Registrar General, High Court, Allahabad.
Order Date :- 27.5.2020
Brijesh (Deepak Verma, J.) (Sunita Agarwal,J.)