Allahabad High Court
Ramesh, Mahesh, Dinesh And Ganesh All ... vs State Of U.P. on 23 November, 2004
Author: Imtiyaz Murtaza
Bench: Imtiyaz Murtaza, R.C. Pandey
JUDGMENT Imtiyaz Murtaza, J.
1. The present appeal has been filed against the judgment and order dated 9.11.1993 passed by Sri M.M. Jayant the then II Addl.Sessions Judge, Rampur in S.T. No. 633 of 1991 whereby the appellants were convicted under Sections 302/34 I.P.C. and sentenced to under go life imprisonment.
2. The prosecution case, as mentioned in the F.I.R. lodged by P.W.I Sunder Lal, is that on the date of occurrence he along with his brother Bundan Lal had visited Balmiki Mandir for participating in a Panchayat. At about 12.30 P.M. his brother left the Panchayat and he was followed by Ramesh, armed with country made pistol Mahesh, Dinesh and Ganesh were armed with knives and they surrounded him and assaulted him with knives. His brother raised alarm and complainant along with Babu Lal son of Banney, Prakash, Ramesh son of Nanhey, Babu Lal son of Mahesh Chand, Aslam, Parvesh and Kallu Khan reached to save him. Dinesh exhorted Ramesh to shoot him and thereafter three accused persons caught his brother who fell down on the ground and Ramesh fired at the face and his brother died on the spot then the accused persons ran away from the eastern gate of the temple. The occurrence was witnessed by several persons. Naresh brother of the accused persons was murdered in the year 1970 and complainant and deceased Bundan Lal were named as accused in the said report. On account of this enmity the accused have murdered Bundan Lal. The report was lodged at the police station on 22.9.1991 at 1.15 P.M. The distance of police station from the place of occurrence is about 11/2 Km. After registration of the case P.W. 7 S.I. Govind Ram started investigation. He recorded the statement of Head Moharrir Mahendra Singh and complainant and reached the place of occurrence. He prepared site plan Ext. Ka-4. He prepared inquest memo of Bundan Lal Ext. Ka-5 and also prepared seal photo lash, Chalan lash, report to R.I., report to C.M.O., which are Exts. Ka-6 to Ka-10. The dead body was sealed and handed over to Constable Govind Singh and Constable Prakash Chandra for post mortem examination. He took blood stained and plain earth and prepared its recovery memo Ext. Ka-11. He recorded the statements of Babu Lal son of Banney, Prakash, Umesh, Babu Lal son of Mahesh, Aslam, Parvesh and Kallu Khan. He stated that on 17.10.1991 Mashooq Ali Incharge has taken the investigation and has filed charge sheet against the accused persons in court which is Ext. Ka-16. The post mortem examination of the deceased was conducted by P.W. 8 Dr. Arun Kumar Gupta on 23.9.1991. He had noted the following ante mortem injuries:-
1. Fire arm wound of entry measuring 3 cm x 3 cm over Rt. Side of face just below outer angle of Rt. Eye. Blacking scorting tattooing present over and around wound margin lacerated and inverted.
2. Fire arm wound of exit 5 cm x 4 cm over Lt. Side of face just above it. Ear Brain matter protruding out margin lacerated & everted wound is communicating with injury No.
3. I.W. 1 cm x .5 cm x muscle deep over Rt. Side of face 1 cm below Injury No. (1).
4. I.W. 3 cm x 1 cm x chest cavity deep over Rt. Side of chest just above Rt. Nipple.
5. I.W. 2 cm x .5 cm x muscle deep over Lt. Sub costal area.
6. I.W. 3 cm x .5 cm x bone deep over Rt. Scapular region upper part.
7. I.W. 2.5 cm x .5 cm x muscle deep over Rt. Scapular region 4 cm apart inward from injury No. 5
8. I.W. 1.5 cm x .5 cm x muscle deep over Rt. Side of back 10 cm below of medially inf. Angle of scapula.
9. I.W. 5 cm x 1 cm x muscle deep over Rt. Side of back 8 cm below.
According to the opinion of the Doctor cause of death of the deceased was due to shock and hemorrhage as a result of ante mortem injuries.
After submission of charge sheet the case was committed to the court of Session. To prove its case, prosecution produced eight witnesses. P.W. 1 Sunder Lal, P.W.2 Kunnu Khan, P.W.3 Aslam, P.W.4 Parvez, P.W.5 Babu Lal, P.W.6 Ramesh are eye witnesses of the case and P.W.7 is S.I. Govind Ram who is investigating Officer of the case.
P.W.I Sunder Lal supported the version of F.I.R. He stated that on the date of occurrence he was present along with his brother deceased Bundan Lal at Balmiki Mandir at 12.30 P.M. His brother had left the Panchayat to drink water on which the accused Ramesh armed with country made pistol, Mahesh, Dinesh and Ganesh were armed with knives followed and surrounded Bundan Lal and assaulted him. As stated above the complainant along with other persons have reached to save him on the alarm raised by his brother but the deceased was assaulted with knife and thereafter Ramesh fired on him and he died on the spot. The F.I.R. was written by Imran Shah Khan on his dictation which is Ext. Ka-1. He stated that he had reached at the police station on Rickshaw. He stated that he reached at the place of occurrence on a cycle and some one who was present at the place of occurrence may have taken away his cycle, but this thing he has not disclosed to the Investigating Officer.
P.W. 3 Aslam is named in the first information report. He stated that he had not witnessed the occurrence and was declared hostile. He stated that his statement was not recorded by the investigating officer.
P.W. 4 Parvez stated that he does not recognize the accused persons. The deceased was known to him. He stated that he did not witness the occurrence and he was declared hostile. He stated that his statement was not recorded by the investigating officer.
P.W. 5 Babu Lal stated that he knew the accused persons as well as the deceased. He stated that he did not attend any Panchayat and he had not witnessed the occurrence. He was declared hostile and he stated that he had not given any statement to the investigating officer.
P.W. 6 Ramesh did not support the prosecution version and was also declared hostile and denied that investigating officer had recorded his statement.
P.W. 7 S.I. Govind Ram is the investigating officer of the case.
P.W. 8 Dr. Arun Kumar Gupta conducted the autopsy on the dead body and the injuries have already been mentioned in the earlier part of this judgment.
3. The case of the defence is of denial. The Sessions Judge relied upon the testimonies of P.W.I Sunder Lal and P.W.2 Kunnu Khan and convicted the appellants as aforesaid, though other witnesses had not supported the prosecution case.
4. We have heard Sri P.N.Misra for the appellants and learned A.G.A. for the State.
5.The counsel for the appellants submits that the Sessions Judge has wrongly relied upon the testimonies of P.W.I Sunder Lal and P.W.2 Kunnu Khan. The presence of both the witnesses at the time of ccurrence is doubtful. In order to appreciate the arguments of learned counsel for the appellants we have scrutinized the evidence of these vitnesses.
6. P.W.I Sunder Lal is brother of the deceased and P.W.2 Kunnu khan is alleged to be an independent witness. A perusal of testimony of P.W.2 Kunnu Khan indicates that on the date of occurrence he was returning from his field to his house and when he reached near the Balmiki Mandir Aslam and Parvesh met him at about 12.30 P.M. and they heard shreiks and reached at the place of occurrence and saw that Dinesh, Mahesh and Ganesh were armed with knives and Ramesh was armed with country made pistol. The accused who were armed with knives were assaulting the deceased Bundan Lal. At the place of occurrence three other persons were also present whose names he could not remember. They had also reached and saw Dinesh exhorting Ramesh to shoot Bundan Lal. Dinesh, Mahesh and Ganesh got Bundan Lal fell on the ground and Ramesh immediately shot fire. The deceased succumbed to his injuries of fire arm and knives. He also stated that the deceased was his class fellow and friend. In the court he failed to identity the accused persons. He described Dinesh as Mahesh and Mahesh was described by him as Ramesh and Ramesh was identified by him as Ganesh and subsequently he had rightly identified Ganesh. He further stated that his statement was recorded next day at the house of Hazi Qamar Shah. In the earlier part of his statement he specified the weapon in the hands of accused persons. According to his statement in the examination-in-chief he stated that Ramesh was armed with fire arm and this is also a version in the F.I.R. but in the cross-examination he wrongly identified Ramesh. It means that he was himself not sure as to which of the accused was armed with fire arm. In our opinion this mistake indicates that he is not telling the truth. His presence at the time of occurrence is doubtful. He had not witnessed the occurrence otherwise he would have rightly identified the accused person who had actually shot the deceased. He is an interested witness as he had already mentioned that he was a class fellow and friend of the deceased. He had not stated in his statement under Section 161 Cr.P.C. for his being present at the place of occurrence and for the first time in the court he stated that he was returning from his field. He also failed to notice the clothes of the deceased. A closer scrutiny of the testimony of this witness indicates that he was not present at the time of occurrence and no reliance can be placed on his statement.
7. Now there remains the sole testimony of P.W.I Sunder Lal. It has been held in various decision of Apex Court that as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a witness, But if there are doubts about the testimony the courts will insist on corroboration. It is not the number, the quantity, but the quality that is material. The time honored principle is that evidence has to be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent credible and trustworthy, or otherwise. P.W.I is the complainant of he case. He is also an eye witness. He had described the occurrence in his F.I.R. He also mentioned the names of the witnesses who were resent at the time of occurrence. In the F.I.R. he named Babu Lal, prakash, Ramesh, Babu Lal son of Mahesh, Aslam, Parvez and Kunnu khan. Out of these witnesses Kunnu Khan, Aslam, Parvez Babu Lal and Ramesh were examined in court and four witnesses are declared hostile and the Sessions Judge had not relied upon their testimonies. We have also rejected the testimony of P.W.2 Kunnu Khan. This indicates that P.W.I Sunder Lal has introduced the witnesses who have not supported the prosecution case. The complainant Sunder Lal had also equal enmity with the accused. The motive as alleged for the commission of the crime in the F.I.R. is that Naresh brother of the accused was murdered in the year 1970 and P.W.I Sunder Lal and deceased Bundan Lal were named as accused in the report. It is highlv surprising that the complainant who was present there at the time of occurrence with whom the assailant had equal enmity was no assaulted. The subsequent conduct of the complainant is also very unnatural. He stated that he had not made any effort to ascertaii whether deceased is alive or dead he had not even touched the dead body. He further stated that he had reached the Balmiki Mandir on cycle but he had gone to lodge the report on a rickshaw. A close scrutiny of the testimony of this witness shows that he is not a reliable witness. He had introduced a witness whose testimony is rejected an other witnesses had not supported the prosecution case. He is not such a witness on whom implicit reliance can be placed. We reject his testimony.
8. In the result the appeal is allowed. The order dated 9.11.1993 convicting and sentencing the appellants, as aforesaid, is set aside. The appellants are acquitted. They are on bail. They need not surrender. Their bail bonds are cancelled and sureties are discharged.