Allahabad High Court
Rangi Lal And Ors. vs State Of U.P. on 23 October, 1990
Equivalent citations: 1991CRILJ916
JUDGMENT B.P. Singh, J.
1. Rangi Lal and others have appealed against their conviction recorded by Sri. K.P. Sinha, Additional Sessions Judge, Fatehpur in S.T. No. 150 of 1978 State v. Rangi Lal and 8 others, under Sections 147, 148, 307/149, 304/149 I.P.C. P. S. Jahanabad, District Fatehpur.
2. The case of the prosecution was as follows:-- Vidya Bishal, P.W.1, the first informant, is a resident of village Deori Buzurg and his family members have got about 30 bighas land in Bhanbhaura Har which lies towards north of the village. In the evening of 26th July, 1977 some cattle belonging to residents of village Sahimalpur had grazed in the field of Vidya Bishal's family members. The crop was damaged and thereafter Vidya Bishal's nephew, Srinarain, had gone to village Sahimalpur in the evening to lodge protest with the owners of the cattle. Rangi Lal and others, who are residents of village Sahimalpur and owners of the cattle, resented the protest made by Srinarain.
3. On 27-7-1977 Vidya Bishal, Srinarain and Kalloo alias Chhaila were proceeding towards Bhhanbhaura Har at about 10.30 a.m. when Vidya Bishal and his two colleagues had reached upon the syphon on the Kachchi Gali of village Kripalpur, accused Rangi Lal armed with a spear, accused Suresh, Mahabir, Nanku, Pyare Lal, Desh Raj, Shiv Kumar, Radhey Lal and Daya Ram armed with Lathis came there and challenged them. Thereafter all these nine accused attacked Srinarain and Kallu. Vidya Bishal and his two colleagues raised alarm which attracted Lal Singh, Babu, Jagatpal, Babulal and Ram Sajiwan. The witnesses saw the occurrence and when challenged by them, the accused ran away towards east.
4. Srinarain succumbed to his injuries on the spot. Kallu had also received serious injuries. Leaving the dead body of Srinarain in the charge of the witnesses, Vidya Bishal accompanied by Kallu came to Police Station Jahanabad where First Information Report, Ext.Ka. 4, was lodged at 3-45 p.m.
5. S.I. Jairam Pandey, P.W. 6, had handed over the letter for medical examination, Ex.Ka. 7, to Kallu and had sent him for medical examination to the district hospital, Fatehpur. Dr. B.R. Bajpai, P.W. 4 who was posted in District Hospital, Fatehpur in July 1977, had examined the injured Kallu on 27-7-1977 at 10.30 p.m. and had found 11 injuries i.e. 6 lacerated and five contusions upon his person. In the opinion of Dr. B.R. Bajpai Kallu's injuries No. 3, 7 and 10 were kept under observation while remaining injuries were simple and all the injuries were caused by some blunt weapon. The injuries were about half day old and an injury report, Ex.Ka. 2, was duly prepared.
6. S.I. Jagannath Tewariu, P.W. 7, is the investigating officer of the case. He had reached the scene of occurrence on 27th July, 1977. After routine investigation the charge sheet Ex.Ka 14 was submitted. On 28th July, 1977 the I.O. had sent the dead body of Srinarain to the mortuary where the post mortem examination upon the dead body was conducted by Dr. A. Wahid, P.W. 5. Dr. A. Wahid had found the following ante mortem injuries:--
1. Lacerated wound 2" x 1/2" x bone deep on the middle of skull 4.1/2" above the root of nose with fracture of the frontal and parietal bones underneath and laceration of the brain underneath. Clotted blood present.
2. Abraded contusion 11/2" x 1/2" over the eye-brow of left eye clotted blood present.
3. Abrasion 6" x 11/2" on the back of the left side of chest across the left scapula.
4. Abraded contusion 2" x 1" on the back of left knee.
5. Abraded contusion 1" x 1/2" on the front of right leg just below the knee.
6. Abraded contusion l1/2" x 1" on the front and lower part of right leg with fracture of the bone underneath just above the ankle.
7. Abraded contusion 2" x 1" on the back of left forearm just above the wrist with fracture of the bones underneath.
On internal examination Dr. A. Wahid found that frontal parietal bone was fractured. Faecal matter in the large intestine was also found. In the opinion of Dr. A. Wahid the death of Srinarain was caused due to shock and haemorrhage resulting from the ante mortem injuries.
7. At the trial the accused pleaded not guilty and claimed to be tried. In all the prosecution examined seven witnesses i.e. Vidya Bishal, P.W. 1; Kallu, P.W. 2; Ram Sajiwan, P.W. 3; Dr. B.R. Bajpai, P.W. 4; Dr. A. Wahid, P.W. 5; S.I. Jairam Pandey, P.W. 6 and S.I. Jagannath Tewari, P.W. 7. The accused did not produce any witness in this case. Their case was that they were falsely implicated in the case.
8. Learned Sessions Judge accepted the evidence of P.Ws. relating to accused Rangi Lal, Suresh, Mahabir, Pyare Lal, Shiv Kumar, Radhey Lal and Daya Ram and held that Rangi Lal was guilty of offences Under Sections 148, 304/149 and 323/149 I.P.C. and the remaining six accused were guilty of offences Under Sections 147, 304/149 and 323/149. Consequently, a sentence of seven years' R.I. was imposed for the offence Under Section 304/149 I.P.C., a sentence of one year's R.I. was imposed for the offence Under Section 323/149 I.P.C. and a sentence of one year's R.I. was also imposed for the offence Under Sections 147 and 148 I.P.C. All the sentences were to run concurrently. Accused Nanku and Desh Ram were acquitted as they were given benefit of doubt.
9. Aggrieved by the judgment and order of the Trial Court, Rangi Lal and others have come in appeal.
10. I have heard learned counsel for the parties and have also gone through the record of the case. The fact that Srinarain was killed on 27-7-1977 near the syphon on the Kachchi Gali, was not disputed. The fact that injuries of Srinarain and Kallu were the result of the blows administered with blunt weapon, was also not disputed. The accused have denied participation in the assault upon Srinarain and Kallu and it was also suggested that the occurrence took place in the early hours of the morning and not at 10-30 a.m.
11. The prosecution had examined three witnesses of fact i.e. Vidya Bishal P.W. 1, Kallu P.W. 2 and Ram Sajiwan P.W. 31 have already detailed the version of Vidya Bishal P.W. 1 in the statement of the case and the same need not be repeated here. Kallu P.W. 2 has corroborated the evidence of Vidya Bishal P.W. 1 with the exception that he has excluded the accused Nanku and Desh Ram from the array of assailants. Ram Sajiwan P.W. 3 has corroborated the evidence of Kallu P.W. 2. Ram Sajiwan P.W. 3 was permitted to be cross-examined from the side of the State and in his cross-examination he has insisted that Desh Raj and Nanku were not amongst the assailants.
12. Kallu P.W. 2 had sustained as many as eleven injuries upon his person and five of these injuries were upon the head. These injuries could not be self inflicted. Kallu P.W. 2 must have known as to who were the persons who had caused him injuries. It is significant to note that admittedly Vidya Bishal, Kallu or Srinarain had no enmity with the appellants from before the occurrence of this case. It is not a case where the injured witness was implicating some persons out of any enmity. It has come in the evidence of Kallu P.W. 2 that on one day prior to the occurrence he had accompanied Srinarain to village Sahimalpur to lodge protest regarding grazing of their field by the cattle belonging to the residents of village Sahimalpur. It appears that the protest lodged by Srinarain and others was not liked by the appellants and they wanted to teach lessons and it was for this purpose the assault was made upon Srinarain and Kallu on 27-7-1977. Both Vidya Bishal P.W. 1 and Kallu P.W. 2 were cross-examined at length. These two witnesses of fact have withstood the test of cross-examination and have been consistent in their evidence regarding details of the occurrence. The evidence of these two witnesses has been criticised by the learned counsel for the appellants on three grounds. Firstly, that the evidence was not reliable as admittedly there was false implication of two persons, namely, Nanku and Desh Raj; secondly, that there was variation in the evidence of Vidya Bishal and the First Information Report; and thirdly, the evidence of these witnesses suffers from inconsistency. It is no doubt true that Kallu P.W. 2 and Ram Sajiwan P.W. 3 have ruled out the presence of Nanku and Desh Raj upon the scene of occurrence at the time of occurrence and they have categarically stated that these two persons, Desh Raj and Nanku, were not amongst the assailants, the question arises as to whether the evidence of these witnesses is to be thrown out in relation to the remaining accused also for the reason that they were no more adhering to the prosecution case as was given out in the FIR and their earlier statements Under Section 161 Cr. P.C. It may be noted here that S.I. J.N. Tewari (P.W. 7) has stated that he had not included the names of Nanku and Desh Raj on his own in the statement of witnesses Kallu and Ram Sajiwan. It would be reasonable to presume that both Kallu and Ram Sajiwan had supported the FIR version of nine assaillants when they were examined by the I.O. shortly after the occurrence on 27-7-1977. For the reasons known to him Vidya Bishal (P.W. 1) had added the names of Nanku and Desh Raj in the First Information report and had arrayed them as accused and there was nothing surprising if Kallu and Ram Sajiwan made the similar statements before the I.O. Srinarain had died and Kallu and Ram Sajiwan must have been greatly perturbed and they may have followed by the lead given by Vidya Bishal regarding the number of assaillants. When second thoughts were available to them both these witnesses had thought it proper not to include Nanku and Desh Raj amongst the assaillants. If these two witnesses had any ulterior motive to nominate these seven appellants as assailants, they could have also nominated Nanku and Desh Raj for the similar reason. They have not done so and their entire evidence cannot be thrown out for this reason. Cases are not uncommon when in the heat of the moments some persons are added in the array of the accused although they were not actually involved in the occurrence.
13. The doctrine of falsus in uno and falsus in omnibus is not applicable in this country for the simple reason that in a good majority of criminal cases there is admixture of untruth in the statement of witnesses of fact produced at the trial. Cases are not wanting where some innocent persons are also roped in by the witnesses of fact along with the real culprits. Sometimes even the motive for such false involvement is obscure. In such cases the Court is bound to indulge in the exercise of minutely examining the evidence of the witnesses of fact for the purpose of separating the chaff from the grain, once it accepts the essential part of the prosecution story. In the present case the fact that Kallu and Srinarain were assaulted by the villagers of Sahimalpur cannot be disputed as enough evidence is there to prove this fact. In the present case learned Trial Court has already given benefit of doubt to Nanku and Desh Raj and the evidence of witnesses of fact in relation to remaining accused cannot be discarded for the simple reason that benefit of doubt was given to two of their colleagues who were not named by the injured witness.
14. Coming to the second and third contentions I may observe that in their evidence before the Trial Court the witnesses of fact have stated that the spear was used by Rangi Lal as a lathi while in the FIR Rangi Lal was said to have wielded the spear at the time of occurrence. It is no doubt true that the FIR in a criminal trial is of great significance and importance for the simple reason that it brings on record the earliest recorded version of the crime. But it has been repeatedly held by the Supreme Court as well as various High Courts that the FIR is not a substantive piece of evidence. It is an earlier statement of its maker and can always be used either to corroborate or contradict the evidence given by the first informant at the trial. A First Information Report cannot be used to contradict an injured witness or for that matter any other witness when it was not lodged by him.
15. In his evidence before the Trial Court Vidya Bishal as stated that Rangi Lal and other accused are close to each other and they grazed cattle; that Rangi Lal, Pyare Lal, Shiv Kumar, Mahabir, Nanku and Desh Raj had grazed the field one day earlier; that Chhaila had gone to protest one day earlier; and that while he was going towards the field, Srinarain and Kallu were at the back of him. Kallu has stated in his evidence that Rangi Lal had held the spear in his hand and Ram Sajiwan has stated that the accused had come upon the scene of occurrence while giving out that the residents of village Deori Buzurg were to be dealt with. The above statements of these witnesses do not find place in their earlier statements which were recorded by the I.O. I have considered these improvements/ contradictions. In my opinion improvements/contradictions of such a nature are bound to be present in the statements of witnesses who are deposing about an occurrence after a gap of about one and a half year. It is common experience that such improvements/contradictions are invariably found in testimony of even wholly truthful witnesses when they are made to depose of an occurrence after a gap of one and a half year. The capacity of a human brain to retain minute details of the occurrence varies from man to man. In my opinion these contradictions do not cast reflection upon the evidentiary value of these witnesses.
16. No doubt Ram Sajiwan (P. W. 3) was declared hostile by the prosecution and it can be safely said that the prosecution was not placing implicit reliance upon his evidence but it is settled law that the evidence of hostile witnesses cannot be discarded and it can be used to corroborate other reliable evidence in case such reliable evidence exists on record.
17. It was also contended from the side of the appellants that some faecal matter was found in the large intestine of the deceased and for this reason it must be presumed that the occurrence took place sometime in the early hours of the morning. The above contention cannot be accepted for the simple reason that there is no evidence regarding the time when the last meal was taken by the deceased.
18. It was also contended from the side of the appellants that the FIR in the case was ante timed. Reliance was placed upon the facts that no other case was registered at the Police Station on that date; that post mortem was delayed; and that on his own admission Kallu had left for Police station at above 2-3 p.m. All these circumstances do not lead to the inference that the FIR was ante timed. There was no inordinate delay in performance of post mortem examination. The occurrence took place at about 10.30 a.m. one man died on the spot and the other man had sustained as many as eleven injuries, out of which five were on the head. Vidya Bishal must have taken some time to make arrangements so that he could take Kallu with him to the Police Station. The distance of the Police Station from the scene of occurrence was 10 kms. and the FIR was lodged at 1-45 p.m. It cannot be said that there was any inordinate delay. The evidence of Kallu that he left for the Police Station at 2 or 3 p.m. is obviously incorrect and too much importance cannot be attached for the same because in view of his injuries he could not be certain of the time when he left for the Police Station and on relying upon his imagination, when he was answering to the question as to when he had left for the Police Station, he might have made the above statement.
19. It is also no doubt true that no crime number is mentioned in the Panchayat Nama but this fact by itself is of no significance when in the other papers such as Photo Naash etc. which are prepared along with Panchayat Nama the Crime No. 217 is mentioned.
20. Lastly, it was also contended from the side of the appellants that the accused had no motive to launch a murderous assault upon Srinarain and Kallu. Sufficiency or insufficiency of a motive is not always of much significance in a criminal trial. Insufficiency of motive cannot be fatal to the prosecution case in every trial. Failure on the part of the prosecution to prove that there was sufficient motive to launch murderous assault upon two unarmed victims does not necessarily lead to the conclusion that the evidence of the witnesses of fact, especially when one of them was an injured witness, must be discarded. In such a case the duty which is cast upon the Court is to scan, scrutinise and evaluate the evidence for the prosecution with greater care. In this view of the matter Rangi Lal appellant should also be extended the benefit of doubt. No doubt the explanation for the absence of the spear injury has come in the evidence of witnesses of fact but this explanation has come too late in the day and it will not be safe to accept the same.
21. The occurrence took place in the year 1977 and more than 13 years have passed. The appellants had no prior motive to commit the murder of Srinarain. In my opinion a sentence of four years' R.I. for the offence 307/149 I.P.C. would serve the ends of justice under the circumstances of the case. The appellant, Rangi Lal, is entitled to acquittal.
ORDER The appeal is partly allowed. Rangi Lal is acquitted of the charges with which he was charged. He is on bail. His bail bonds are cancelled and the sureties are discharged.
The conviction for the offence Under Sections 304/ 149, 147 and 323/149 is confirmed but the sentence of seven years' R.I. for the offence u/S/ 304/149 is modified and is reduced to four years' R.I. The remaining convictions are confirmed. All the sentences shall run concurrently. These six appellants are on bail. Their bail is cancelled. They shall be taken into custody to serve out the sentence imposed upon.