Allahabad High Court
Mahak Chand And Others vs State Of U.P. on 21 October, 2019
Bench: Manoj Misra, Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 42 Case :- CRIMINAL APPEAL No. - 1122 of 1993 Appellant :- Mahak Chand And Others Respondent :- State Of U.P. Counsel for Appellant :- D.S.Tiwari, Jagdish Prasad Tripathi, Urmila Tripathi, S C Pandey Counsel for Respondent :- A.G.A. Hon'ble Manoj Misra,J.
Hon'ble Pankaj Bhatia,J.
This appeal assails the judgment and order dated 29.06.1993 passed by Additional Sessions Judge/ Special Judge, Meerut in S. T. No.294 of 1989 by which the appellants, namely, Mahak Chand and Mahkar both sons of Jai Lal; and Nand Kishore son of Phool Singh have been convicted under Sections 302 / 34, 307 / 34 and 449 I.P.C and punished as follows: life imprisonment for offence punishable under section 302/ 34 I.P.C.; three years R.I. each for offences punishable under Sections 307 / 34 and 449 I.P.C. All the sentences to run concurrently.
The prosecution case as narrated in the first information report (for short FIR), which has been lodged by Charat Singh (P.W.1) at P.S. Kithore, District Meerut as Case Crime No. 227 of 1987 on 25.09.1987, at 3:30 AM, is that Mahak Chand (appellant no.1) is a dacoit. He threatens villagers therefore nobody complains against him. The informant's family however had been opposing him. As a result, Mahak Chand had been inimical towards the informant. In the night of 30/31.07.1987 an attempt on the life of informant's brother Bharat Singh was made by Mahak Chand in association with Nand Kishore (appellant no.3) and Ashok of which information was given at the police station. Ashok and Nand Kishore had obtained bail but Mahak Chand was absconding. On 15.09.1987, Mahak Chand and his brother Kallia (who expired before the trial) threatened the informant that if he does not enter into a compromise in that case his entire family would be eliminated. Thus, pressure was being continuously exerted on informant's family to file affidavit in their favour. After narrating the above background, it was alleged that in the night of 24.09.1987, while the informant (P.W.1) and Mathura (P.W.2) along with others were present at the house of Ram Chandra (cousin of the informant), to look after Ram Chandra, who was seriously ill, at about 11 pm, they heard cries of ladies coming from informant's house. Upon hearing those cries, informant and P.W.2 rushed towards the house. As they reached the gate of the house, in the light of a torch, they saw accused Mahak Chand (appellant no.1); Kallia; Mahkar (appellant no.2); and Nand Kishore (appellant no.3) coming out from the gate. Mahak Chand and Kallia had Bhala and Mahkar and Nand Kishore had Ballam in their hand. They all ran away towards the west in the Gali. When PW1 and PW2 went upstairs on to the second floor, they found Kailaso (informant's wife) lying dead on one cot and Sarmoz (Kailaso's sister's daughter - niece) lying injured and unconscious on another cot laid just next to the cot of the deceased. Harpati (wife of Bharat Singh - Bhabhi of P.W.1) and P.W.1's niece (Km. Babita - P.W.3) came and told P.W.1 and P.W.2 that Kallia; Mahak Chand; Mahkar; and Nand Kishore have killed informant's wife (Kailaso - the deceased) and caused injury to Sarmoz (deceased's niece) with Ballam and Bhala.
After the FIR was lodged, the Investigation Officer (for short I.O.), namely, Satyabir Singh Chauhan -P.W.8, proceeded to the spot, recovered bloodstained and plain scrapes of the floor beneath the two cots as well as the bloodstained covers etc., and prepared a fard (Ex Ka-9). Inquest report (Ex Ka 8) was also prepared, which revealed that inquest proceedings started at about 7 am and concluded by 9 am on 25.09.1987. In the column relating to clothes found on the body of the deceased, it was recorded that the body was having just a lower undergarment on it. A Chithi Majrubi (letter for medical examination/ treatment of the injured) addressed to the In-charge Primary Health Centre, Machare, Meerut was prepared for Sarmoz. She was however referred to P.L. Sharma Hospital, Meerut. At P.L. Sharma Hospital, Meerut, at about 7.15 AM, on 25.09.1989, she was examined by Dr. S.C. Nigam (P.W.6), who prepared her injury report (Ex. Ka-5). A punctured wound 2.8 cm x 0.8 cm x depth not probed on right side abdomen, 8 cm above the umbilicus, at about 11 o'clock position, margin clean cut and everted, with Omentum protruding out from the wound, was found. Injury was kept under observation and X-ray was advised. The injury report observes that detailed examination could not be done due to serious condition of the patient. Duration of the injury was found fresh, caused by sharp, hard and pointed object.
The autopsy of the deceased was conducted by Dr. G.C. Gaur (P.W.5) on 25.09.1987, at about 4:30 pm. The autopsy report (Ex.Ka-4) discloses following ante-mortem injuries:
"(i) Incised wound measuring 4 cm x 1.5 cm x bone deep with underlying 5th vertebrae cut on right side of neck, 3 cm below the angle of right mandible placed horizontally;
(ii) Incised wound measuring 8 cm x 1 cm x skin deep on upper surface of right shoulder;
(iii) Incised wound measuring 2.5 cm x 1 cm x chest cavity deep on left side of chest, 10 cm below the left axilla."
As per the report the estimated time of death was about one day before. The age of the deceased was estimated 40 years. According to the doctor, death was due to shock and haemorrhage as a result of the ante-mortem injuries noticed.
On 02.10.1987, the second I.O., namely, Rangnath Pandey (P.W.7), who took over investigation on 30.09.1987 from PW8, disclosed recovery of lantern and torch and prepared its Fard.
P.W.7 completed the investigation and submitted charge-sheet (Ext. Ka-8) against all the four accused, namely, Mahak Chand, Kallia and Mahkar, sons of Jai Lal; and Nand Kishore son of Phool Singh. The charge-sheet enlisted as many as 21 witnesses including Charat Singh (P.W.1); Mathura (P.W.2); Smt. Harpati (not examined) and Km. Babita (P.W.3) but the name of Km. Sarmoz (the person injured in the incident) was conspicuous by its absence.
After taking cognizance on the charge-sheet, the case was committed to the court of sessions. Before the charges could be framed, Kallia expired and the case against him therefore abated.
Charge of offences punishable under sections 302/ 34; 307/ 34; 449 IPC was framed against the accused-appellants. They pleaded not guilty and demanded for trial.
The prosecution examined nine witnesses, namely, Charat Singh (informant - P.W.1); Mathura (P.W.2); Babita (P.W.3); Chandrabir Singh (P.W.4); Dr. G.C. Gaur (P.W.5); Dr. S.C. Nigam (P.W.6); Rangnath Pandey (P.W.7); Satyabir Singh Chauhan (P.W.8); and Shaukat Ali (P.W.9). Their testimony in brief is as follows:
P.W.1 - Charat Singh reiterated what was stated in the FIR. He proved the written report i.e. the FIR (Ex Ka 1) and stated that it was scribed by Brahmpal under his instructions. He stated that at the time of the incident, he was at the house of distant relative Ram Chandra, who was on death- bed. Ram Chandra's house was just about 25-30 paces away from his house. When he heard cries of ladies coming from his house, he and P.W.2 rushed towards the house and saw Mahak Chand and Kallia with Bhala, and Nand Kishore and Mahkar with Ballam, coming out and running away towards the west in the Gali. He stated that he rushed upstairs to find out that on the roof of the second floor his wife was lying dead and his wife's sister's daughter Km. Sarmoz lying unconscious in an injured condition and, from the third floor, his brother's wife Smt. Harpati (not examined) and his brother's daughter (Babita-P.W.3) shouting. After informant's arrival they came down to the second floor and informed the informant and P.W.2 that Mahak Chand; Kallia; Mahkar and Nand Kishore have killed them. Soon thereafter, on a tractor, he went to the Police Station Kithore, with Sarmoz, to lodge the FIR and secure medical attention for the injured.
In his cross-examination, he stated that he was in the armed forces. He retired in 1983. He has a factory in Noida where polythene bags are manufactured. His son manages the factory. He also visits Noida. His son's children had gone to their maternal grand parents home. He has 30 bighas of agricultural land in the village which is managed through servants though sometimes he manages it himself. He stated that at the time of incident there was no servant in the house though he had a servant by the name of Manoj, aged 25-30 years, who is a resident of Bihar. He admitted that his servant used to stay in his house but his family resided in the village. However, on the date of the incident he was looking after the tube well and was not present in the house. With regard to Km. Sarmoz, he stated that she is yet to get married. At the time of the incident she must have been 15-16 years old. He stated that from the police station, Sarmoz was taken to the hospital. On the next day, he met Sarmoz in the hospital but she could not speak as she was unconscious and was being taken for surgical procedure. He stated that his brother (Bharat Singh) had a licensed gun. At the time of the incident, Bharat Singh was at Noida with his son. He stated that his father Mehar Singh had contested election against Mahak Chand's brother Jai Pal. Thereafter, his brother Bharat Singh contested election against Mahak Chand and lost. He stated that his cousin Ram Chandra died on 25.09.1987, at about 6 pm. Ram Chandra had multiple civil litigation with Nand Kishore. He stated that prior to this incident Bharat Singh was shot at by the accused. The shot had hit him on or about the knee.
In his cross examination, he stated that his brother's house, that is Bharat Singh's house, is separate from his own and both the houses had separate staircase up to the second floor. The roofs however were joint. In informant's house there are two floors whereas the third floor is open with grill. In between his house and Bharat Singh's house there is a partition wall, which is of full height to the extent of one-half the length of the house and of one-half height in the remaining portion. He stated that at Bharat Singh's house, informant's father, Bharat Singh's wife and two daughters were there on the date of the incident whereas Bharat Singh's sons had gone to Noida.
In his cross-examination, P.W.1 disclosed that the third floor of his brother's house has no staircase. To have access to it one has to use a ladder from the roof of informant's house. He stated that when he had reached the second floor of his house, there was no one next to the deceased or Sarmoz but soon after his arrival PW3 and her mother (informant's Bhabhi) had come down. He stated that the main gate of the house is at a distance of about 4 or 5 paces from the staircase and is located in the middle of the two houses. It has an iron gate which was not locked by him. He stated that in the verandah, on the ground floor of Bharat Singh's house, on the date of the incident, his father was sleeping.
In his cross-examination, he also stated that Nand Kishore had lodged a case against him, his brother and two others, which was pending. He denied the suggestion that the crime was the doing of some one within his own house and that he has falsely implicated the accused-appellants on account of enmity.
P.W.2 - Mathura reiterated the prosecution case as narrated by P.W.1. He admitted that he comes from the same 'Khandan' (ancestry) as of Charat Singh- P.W.1.
In his cross-examination, he stated that he and the informant were the first to reach the spot and after they had reached, Harpati and Babita (PW3) arrived from the third floor and told them that it was the doing of the accused-appellants. He stated that after he, P.W.1, Harpati and Babita (P.W.3) had arrived, several other persons also arrived. He stated that Sarmoz was unconscious and that he has not spoken to her about the incident till date. He admitted that he knew about Manoj, the servant of P.W.1, but, at that time, Manoj was at the tube well. He stated that he did not see Manoj at the police station also. In his cross-examination, he admitted that Sarmoz had gained consciousness after two days; and that he had not spoken to her even after she gained consciousness as he did not consider it necessary to inquire from her. He denied the suggestion that on the date of the incident, the informant was at Noida and, after getting information, had rushed back. He also denied the suggestion that he is lying because he comes from the same ancestry.
P.W.3 - Babita -In her statement in chief stated that in the night of the incident, at about 11:30 pm, while she was sleeping on the the third floor of her house with her mother Harpati, she heard shrieks of her Chachi (Aunt - Smt. Kailaso - the deceased) and her Bhanji (neice - Sarmoz, the person injured) coming from the second floor of their house. Upon hearing the shrieks, she woke up and saw Mahak Chand with Bhala; Nand Kishore with Ballam; Mahkar with Ballam; and Kallia with Bhala assaulting her Aunt (Chachi) and Sarmoz with the weapons. She stated that the night was dark but a lighted lantern was hanging from the rack placed towards the head side of the bed of the deceased. She could recognize the accused in that light. Upon witnessing the incident she raised an alarm upon which the accused ran away. Soon, thereafter, his uncle Charat Singh (P.W.1) and Mathura (P.W.2) arrived. On their arrival, she descended from the third floor to the second floor and told them about the incident.
A suggestion was given to her that talks regarding marriage of Sarmoz (the person injured) with Rakam Singh son of Maglesh were on but her aunt-deceased was not agreeable to the relationship. She refuted that suggestion but admitted that Rakam Singh had come to the village 2-3 days later. She also stated that she saw him in the village 2-3 months before. She, however, admitted that Sarmoz had come to the village about four days before the incident and had never come earlier. She also admitted that in the house of her uncle (P.W.1), his servant (Manoj) used to stay. Manoj used to look after her uncle's agricultural operations as well as the tube-well. She stated that her father and brother used to stay at Noida; that her father and uncle (P.W.1) had factory at Noida. But PW1 had been in the village since 5-10 days before the incident. She stated that two months after the incident, Manoj left his job and went away. She admitted that fodder for the animals of her house was brought by servants.
In her cross-examination, she stated that in the night of the incident, she slept at 11 pm. Like every day, she used to sleep on the third floor of her house. In the night of the incident, she had taken the bedding and a quilt to the third floor. She had a separate cot for herself whereas her mother slept on a separate cot laid just next to her cot.
In her cross-examination, she admitted that there is no staircase to gain access to the third floor of her house. The height difference between the third floor and second floor of her house is just 2 - 3 feet. She stated that the roof of her house and the deceased's house is joint. On that day, she had used a wooden ladder to go to the third floor. On a daily basis, she used to go to the third floor in the same manner. She stated that in the night of the incident, when she heard the noise, she peeped down to discover that the accused were assaulting the deceased and the injured. According to her the cot of the deceased and the injured were at a short distance of about two paces from her place though at a lower height on the second floor roof. When she woke up, she saw accused persons inflicting injuries on the deceased and the injured. Firstly, she stated that the accused persons' face was towards the deceased and the injured and their back was towards her but, later, she corrected herself and stated that their face was towards her. She stated that the cots of the deceased and injured were laid towards west from her position. The accused persons were seen towards north of the cots. Behind the cots there was a room and adjoining that room there was staircase which could be seen from the place from where she saw the incident, though the main gate could not be seen from that place. She stated that Charat Singh (P.W.1) and Mathura (P.W.2) had arrived soon after the accused had left.
In her cross-examination, she stated that the I.O. had recorded her statement in the morning itself, at about 5 am, at her house; and her mother's statement was also recorded there. Thereafter, the I.O. had again visited the village five days later and recorded her as well as her mother's statement.
She stated that at the time of the incident, the deceased - Kailaso was just wearing a Nikkar (lower undergarment) and apart from that there was no cloth on her body. Sarmoz was wearing a Salwar suit.
She denied the suggestion that on the night of the incident, she was sleeping inside her room and that she had not seen the incident. She also denied the suggestion that the accused have not committed any offence and that she is lying.
P.W.4 - Chandravir Singh proved the G.D. entry of the first information report and the chik FIR. In his cross-examination, he stated that the Inspector had left the police station to go to the spot at about 3:30 am. He also proved that Chitthi Majrubi was issued to the constable for examination of the injured at PHC, Machara.
P.W.5 - Dr. G.C. Gaur proved the autopsy report. He stated that all the three injuries were by sharp edged weapon; autopsy was conducted on 25.09.1987 at about 4.30 pm; and that the death could have occurred about a day before though it is possible that the injuries could have been caused in the night of 24/25.09.1987.
In his cross-examination, he stated that the injuries could have been caused by a knife as well as Ballam if the top had sharp edges. But the injuries could not have been from a Bhala. He stated that there could be variation of six hours on either side in the estimated duration of death.
P.W.6 - Dr. S.C. Nigam stated that he examined Sarmoz for her injuries on 25.09.1987 at 7:15 hours. He stated that Sarmoz was aged about 15 years and was brought by constable. He proved the injury report. He stated that it is possible that the injury caused to her was by a pointed weapon. He stated that it is possible that the injuries could have been caused to her on or about midnight between 23.00-24.00 hours. He stated that the injury was grievous in nature.
In his cross-examination, he stated that he was not shown any report of the Primary Health Centre, Machara. He could not tell whether the injured was provided any medical aid at the Primary Health Centre. He stated that he cannot say whether any information was given for recording of the dying declaration of the injured. He stated that he has not mentioned in his report whether the injured was conscious. He also stated that he has not mentioned about the pulse rate and the blood pressure of the injured. He admitted the possibility of the injury being on account of falling over pointed object but stated that if that was the case then injuries would have been there on other parts of the body also.
P.W.7 - Rangnath Pandey stated that he took over charge of police station Kithore on 29.09.1987 and prior to his posting, the investigation of the case was conducted by Satyabir Singh (P.W.8). He stated that on 30.09.1987, he took over the investigation of the case. On 02.10.1987, he recorded statement of Mathura; Smt. Harpati; Km. Babita; Mahkar Singh, etc. He stated that he had taken the torch from Mathura and prepared a Fard (Memo) in front of Jaikaran and Tikaram. Witness Charat Singh had also provided torch and lantern to him of which Fard (Memo) was prepared. He stated that on 06.10.1987, he recorded statement of Sarmoz and, on the same day, he also recorded the statement of her mother (Prakasho) and brother (Rajesh). He stated that on 08.11.1987, he had completed the investigation and prepared charge-sheet (Ex. Ka-8).
In his cross-examination, he stated that the previous Investigation Officer Satyabir Singh had filled Parchas in the case diary up to page no. 88. However, the Parchas entered by him in the case diary starts from page no. 92. He stated that probably pages 89 to 91 were filled in respect of some other case but he is not aware of that. He stated that during investigation he had heard that statement of Km. Sarmoz was recorded by the doctor as a dying declaration. He admitted that he had recorded the statement of Km. Sarmoz and had also incorporated the statement given by her to the doctor in the case diary . However, he had not recorded the statement of that doctor. He admitted that he had not put the accused for identification by Sarmoz because he had ample evidence and therefore he did not consider it necessary. He stated that he had recorded the statement of Mathura, Smt. Harpati and Km. Babita in the village itself. He had seen the house of Mathura. He does not remember as to how far it is from the place of occurrence. He stated that he did not consider it necessary to make any alteration in the site plan prepared by the first I.O. even though in the site plan prepared by the first I.O., the place from where Mathura saw the assailants was not shown. He stated that he had recorded the statement of Sarmoz at the police station and had entered her age as 15 years and, at that time, her mother and brother were there.
P.W.8 - Satyabir Singh stated that since April 1987 to 27th September 1987, he was the Prabhari Nirikshak at P.S. Kithore. He stated that the FIR was registered at 3:30 hours on 25.09.1987 in his presence. The Chik FIR was entered by the Head Moharir where after he recorded the statement of the informant (Charat Singh - P.W.1) and visited the spot. He proved the inquest report; recovery of blood-stained and plain floor scrapes along with bed pieces, covers etc. He proved that the body was sealed and thereafter handed over to the constable for autopsy. He stated that inquest proceedings were got over by 9 am where after he examined the site and prepared site plan (Ex. Ka 14). He also prepared the site plan for the lower floor, which was marked Ex. Ka-15.
In his cross-examination, he stated that within 10-15 minutes of the registration of the first information report, he had left for investigation. He stated that when he had recorded the statement of Charat Singh (PW1), at that time, no other witness was present though he had searched for the witness but they were not found and Mathura was not there at that time. He stated that the informant stayed with him in the village till 12 noon and thereafter he had left for the hospital. He stated that he had searched for Babita but she was not found in the house. He stated that he had not inquired about Harpati. Thereafter, he left in search of the accused. He stated that he had prepared the site plan, as per the directions of Harpati. He stated that after getting the site plan prepared, he could not find Harpati as he had gone in search of the accused. He admitted that in the site plan, he had not shown the place from where the informant had seen the accused. He stated that the distance between the house of Ram Chandra and the place from where the witnesses had seen the accused must be about 65 paces. Though the distance of the place from where the witnesses saw the accused must have been 3-4 paces. He stated that Sarmoz was in a serious condition and therefore she was sent to the hospital from the police station. He stated that he neither recorded the statement of Sarmoz nor he went to the hospital. He stated that as far as he remembers he had sent a report for recording of her dying declaration. He denied the suggestion that the case was not registered in his presence and he did not visit the spot and did paper work while sitting at the table. He also denied the suggestion that he got the accused falsely implicated.
P.W.9 - Shaukat Ali. He stated that he had taken the body for autopsy and that he did not let anybody touch the body in between.
In his cross-examination, he stated that the body was taken in an ambassador car of which number was DEB 1202. He does not remember whose car it was. He stated that the injured was not with him.
The entire incriminating evidence was put to the accused at the time of recording their statement under Section 313 Cr.P.C.
The accused (Mahak Chand) challenged the correctness of the prosecution evidence and claimed that informant's brother Bharat Singh had contested Pradhan election against him and had lost just before the incident and, therefore, out of enmity, he has been falsely implicated. The accused (Mahkar) denied the prosecution evidence and claimed that he is a lawyer and that to prevent him from doing pairvi in the court cases and to get his arms license canceled, he has been falsely implicated along with other accused. The accused (Nand Kishore) also challenged the correctness of the prosecution evidence and claimed that the informant - Charat Singh, who is brother of Bharat Singh, had disturbed his 'barja' and that a civil litigation is pending as a result of which there is enmity and therefore he has been falsely implicated.
The trial court, after considering the evidence led by the prosecution, held the appellants guilty for offences punishable under Sections 302/34, 307/34 and section 449 I.P.C. The trial court took the view that the prosecution case was duly proved by the eye-witness account of Babita (PW3) and by the testimony of two witnesses of circumstance, namely, Charat Singh (PW1) and Mathura (PW2). Further, the testimony of Babita (PW3) was corroborated by the medical evidence. In respect of non-examination of the injured (Km. Sarmoz), the trial court took the view that it is quite possible that Km. Sarmoz, being new to the village, may not have been able to recognize the accused and therefore the prosecution may not have considered it necessary to examine her. Hence, no adverse inference is to be drawn on non-examination of Km. Sarmoz.
We have heard Sri S.C. Pandey for the appellant no.1 (Mahak Chand); Sri Jagdish Prasad Tripathi for appellant nos. 2 and 3 (Mahkar and Nand Kishore); and Sri Deepak Mishra, learned A.G.A., for the State.
Learned counsel for the appellants contended that admittedly the three accused, namely, Mahak Chand, Mahkar; and Kallia are real brothers; that informant's father (Mehar Singh) had contested election of Gram Pradhan against Mahak Chand's brother Jai Pal; that election was won by Jai Pal; that, thereafter, an election petition was filed, which was decided in favour of informant's father, namely, Mehar Singh; that in the subsequent election, which was just before the incident, Mahak Chand won election of Gram Pradhan against informant's brother Bharat Singh; that, according to the prosecution, the brother of the informant was shot at by the accused in connection with which another case of attempt to murder was lodged in which Mahak Chand, amongst others, was an accused; that, in that case, Nand Kishore had obtained bail but, according to the prosecution, Mahak Chand was absconding; that it has come on record that Nand Kishore was having litigation with the family of the informant and that Mathura (P.W.2) had the same ancestry as the informant; and that eye-witness Babita (P.W.3) is daughter of Bharat Singh, the brother of the informant. Thus, it is clear that all the three eye-witnesses, namely, P.W.1; P.W.2; and P.W.3 were not only inimical but highly interested in seeking conviction of the accused. Hence, their testimony ought to be considered with great caution and tested on the touchstone of probabilities.
It has been contended by the learned counsel for the appellants that admittedly the murder took place on the roof top of informant's house. The house of Bharat Singh, brother of informant, was separate though adjacent to the house of the informant. The deceased and the injured were sleeping on the roof of the second floor of their house in the open. The eye-witness Babita had allegedly seen the incident from the third floor of her house, namely, Bharat Singh's house. The third floor of her house was barely 2-3 feet higher than the second floor. Therefore it can not have rooms, etc. In fact, it cannot be called a third floor as it was a mere platform. This gets corroborated by the evidence that it had no staircase for access. Hence, to show that PW3 could witness the incident, the prosecution has set up an artificial and false story that like everyday Babita (PW3) used to carry her cot and bedding including quilt, etc to the third floor of her house by using a wooden staircase from the adjoining roof of deceased's house. It has been submitted that in the site plan, no cot is shown on the third floor of Bharat Singh's house from where Babita allegedly saw the incident. Even no ladder was shown and its existence has not been noticed during investigation. It has been contended that it is highly unnatural that a person would sleep on a roof which has no staircase for access, more so when the weather conditions are not so hot as would be clear from the statement of PW3 that she had carried a quilt (Rajai). Hence, the presence of Babita at the time of the incident at the place from where she allegedly saw the incident is highly doubtful. Consequently, her testimony is not reliable.
It has also been contended that from the testimony of Babita as well as the inquest report it is established that the deceased was just in her lower undergarment, which means that she was naked from top. According to the prosecution case, there was a lantern lit towards the head-side of the cot of the deceased and in the light of that lantern, though the night was dark, the witness saw the incident. It has been submitted that it is highly improbable that any person who is sleeping nude would have a lantern placed on her head-side to let herself be a spectacle for others. This circumstance lends credence to the probability that P.W.3 was not at the top of the third floor and in a position to witness the incident.
It has been submitted that if P.W.3 had not witnessed the incident, then the testimony of PW1 and PW2 falls to the ground as they have responded to her cries. Hence, the prosecution evidence is highly unreliable and not worthy of acceptance.
In addition to above, it has been urged that the injuries sustained by the deceased appear to be knife injuries and not from a Ballam as, ordinarily, a Ballam has a pointed top and, therefore, when it enters the body it would leave sign of a punctured wound with laceration and not incised wound as appears to be the case. Hence the medical evidence also does not corroborate the ocular evidence of Babita. Otherwise also, two persons are stated to have carried Bhala whereas only a solitary Bhala injury has been found and that too on the body of the injured Sarmoz though, as per the testimony of PW3, all four accused were seen inflicting injuries without specifying as to who caused which injury and to whom. Hence, the possibility of over implication is also there and in absence of clear and cogent evidence which may allow the court to sift the grain from the chaff, all the accused are entitled to the benefit of doubt.
It has next been urged that there is no explanation for non-examination of Km. Sarmoz (injured) as a witness even though it has come in the statement of the Investigation Officer that he had recorded the statement of Sarmoz during the course of investigation after she had gained consciousness. Moreover, the prosecution has not been able to demonstrate that she was not available or was won over. The injured witness would have been the best witness in the facts of the case and withholding her evidence gives rise to an adverse inference against the prosecution case and makes a serious dent to its credibility.
It has also been urged that there has been no recovery of any weapon of assault. Further, no effort has been made to recover the weapon of assault which suggests that the police had made no effort to find out the truth. Hence, there is no link evidence to corroborate the testimony of highly interested witnesses.
It has also been pointed out that there is no cogent reason for the appellants to kill informant's wife and injure informant's wife's niece inasmuch as if they had any score to settle it was with Bharat Singh and his family. Hence, why would they attack female family members of his brother. Moreover, the allegation that threat was extended that the entire family would be eliminated, if compromise was not arrived at in the attempt to murder case, was never reported. Hence, the motive for the crime is weak though motive to falsely implicate is strong.
Lastly, it was contended that the crime appears to be handiwork of some insider or servant of the house and to hide public shame, the injured witness has not been produced. It has been submitted that the nude condition in which the body of the deceased was found, particularly, when the weather was not hot, as according to witness (PW3) she had carried a quilt to cover herself, would lend credence to that kind of possibility more so when the deceased, as per autopsy report, was just aged about 40 years old. To buttress this possibility, it was argued that admittedly PW1 was not present in the house and there were no other male members in the house of PW1 to keep a check on them. To add to that possibility it has been argued that it appears that PW1 was not even there in the village and may have arrived on information which possibility gets support from use of private Ambassador vehicle to carry the body of the deceased to the mortuary. It has thus been argued that the finding of guilt returned by the court below is not sustainable and is liable to be set aside.
Per contra, the learned A.G.A. submitted that P.W.3 is a reliable witness, who stood the test of cross-examination and her presence in her own house, which adjoins the house of the deceased, is natural and therefore she cannot be discarded as a person who had not seen the incident. He also submitted that mere fact that the deceased was found only in her undergarment does not make the prosecution case unworthy of acceptance inasmuch as it is quite possible that the deceased may have been in a habit of sleeping that way by covering herself with covers etc. It has been submitted that here is a case where the time of death has been proved by medical evidence; the FIR is prompt; and the medical evidence is not in conflict with the ocular evidence. It was also submitted that where the ocular evidence is consistent and reliable, motive loses importance. It was further urged that non-examination of the injured witness would not prove fatal to the prosecution case inasmuch as in the darkness of the night Km. Sarmoz, who was hit by a Bhala and had become unconscious, may not have been in a position to recognize the persons who inflicted injury upon her more so because she was not a resident of that village and had come there just 4-5 days before the incident and, therefore, may not have been in a position to recognize the accused. Hence, non examination of Km. Sarmoz is not fatal to the prosecution case. Learned AGA thus prayed that the appeal be dismissed and conviction be maintained.
We have considered the rival submissions and have perused the record carefully.
Before we proceed to assess the prosecution evidence it would be apposite for us to cull out the facts as regards which there exist no dispute. The admitted position is that the informant's family and the accused family had been political rivals. The father of the informant had contested Gram Pradhan election against brother of the accused Mahak Chand, Kalia and Mahkar. The informant's father had lost the election but had filed an election petition which, according to the informant, was allowed. Likewise, informant's brother, Bharat Singh, contested election against Mahak Chand. This election of Gram Pradhan was won by Mahak Chand soon before the incident. Thereafter, there was a case registered against the present set of accused-appellants in respect of making an attempt on the life of Bharat Singh in which Bharat Singh is stated to have received gunshot injury on or about his knee. According to the prosecution case, two of the accused persons of that case were granted bail whereas Mahak Chand was absconding. It has also come on record that there had been litigation with the other set of accused, namely, Nand Kishore. P.W.3, the alleged eye-witness, is daughter of Bharat Singh. Informant (P.W.1) is brother of Bharat Singh and Mathura (P.W.2) hails from the same ancestor. It is thus clear that eye-witness of the incident, namely, P.W.3, and the witnesses of the circumstance, namely, P.W.1 and P.W.2, are all interested witnesses and none of them have suffered injury.
Before we proceed further, it would be apposite for us to take notice of the law as to how the testimony of an interested witness is to be weighed and dealt with.
In Hari Obula Reddy and others v. The State of Andhra Pradesh : (1981) 3 SCC 675, a three-judges bench of the apex court, in paragraph 13 of its judgment, as reported, has held as follows:-
"................ it is well settled that interested evidence is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for discrediting or rejecting sworn testimony. Nor can it be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon. Although in the matter of appreciation of evidence, no hard and fast rule can be laid down, yet, in most cases, in evaluating the evidence of an interested or even a partisan witness, it is useful as a first step to focus attention on the question, whether the presence of the witness at the scene of the crime at the material time was probable. If so, whether the substratum of the story narrated by the witness, being consistent with the other evidence on record, the natural course of human events, the surrounding circumstances and inherent probabilities of the case, is such which will carry conviction with a prudent person. If the answer to these questions be in the affirmative, and the evidence of the witness appears to the court to be almost flawless, and free from suspicion, it may accept it, without seeking corroboration from any other source."
In Pandurang Chandrakant Mhatre and others v. State of Maharastra : (2009) 10 SCC 773, the apex court, in paragraph 60 of its judgment, as reported, had observed as follows:-
"60. In cases involving rival political factions or group enmities, it is not unusual to rope in persons other than who were actually involved. In such a case, court should guard against the danger of convicting innocent persons and scrutinise evidence carefully and, if doubt arises, benefit should be given to the accused."
In Jalpat Rai and others v. State of Haryana : 2011 (14) SCC 208, the apex court in paragraph 42 of its judgment, as reported, had observed as follows:-
"42. There cannot be a rule of universal application that if the eye- witnesses to the incident are interested in prosecution case and /or are disposed inimically towards the accused persons, there should be corroboration to their evidence. The evidence of eye-witnesses, irrespective of their interestedness, kinship, standing or enmity with the accused, if found credible and of such a caliber as to be regarded as wholly reliable could be sufficient and enough to bring home the guilt of the accused. But it is reality of life, albeit unfortunate and sad, that human failing tends to exaggerate, over-implicate and distort the true version against the person(s) with whom there is rivalry, hostility and enmity. Cases are not unknown where entire family is roped in due to enmity and simmering feelings although one or only few members of that family may be involved in the crime."
Having noticed the decisions of the apex court, the legal principle deducible is that the testimony of an interested witness no doubt can form basis of conviction but the same must be accepted with caution only after it is carefully scrutinized and if, on such scrutiny, is found to be intrinsically reliable or inherently probable. The first test which is to be applied is to find out whether the presence of that eye-witness at the place/scene of occurrence from where he or she has allegedly witnessed the incident at the material time was probable. Once, the witness passes that test, his or her testimony has to be tested on other parameters to rule out possibility of false implication and, at times, over implication because it is not uncommon that where there is strong enmity the entire family of the other side is roped in even though it may be the act of only one or few of them.
Keeping in mind the above legal principle, now we shall examine the reliability of the prosecution evidence led in the instant case. To conveniently achieve that object, it would be useful to divide the evidence led into parts:
(a) First, the occurrence was witnessed by P.W.3 and her mother Harpati (not examined), from the third floor of their house/roof top, which adjoins the house of the deceased. Upon witnessing the incident, they raise alarm.
(b) Second, upon hearing the alarm, the informant (P.W.1) and Mathura (P.W.2), who were at the house of one Ram Chandra, rush to the house of the deceased/ informant (P.W.1).
(c) Third, as P.W.1 and P.W.2 arrive near the gate of P.W.1's house they see in torch light the accused with their respective weapons making a quick exit. They, however, do not challenge them nor make any attempt to apprehend the accused, probably, because they were unarmed.
(d) Fourth, P.W.1 and P.W.2 rush upstairs to find the deceased lying dead on her cot and Km. Sarmoz lying unconscious in an injured condition on another cot.
(e) Fifth, P.W.3 and her mother (Harpati) came downstairs to inform PW1 and PW2 that the accused-appellants have done the act.
If the presence of eye-witness P.W.3 is found doubtful at the time and place of occurrence then the entire prosecution case crumbles because it is only after hearing the cries of P.W.3 and her mother (who has not been examined), that PW1 and P.W.2 arrived otherwise they were at another house.
When we carefully scrutinize the entire prosecution evidence including the statement of the witnesses examined by the prosecution, we find that the presence of P.W.3 at the top of the third floor roof of her house, at the material time, is highly improbable and, in our view, highly doubtful. It appears to us that her presence there has been shown to create an eyewitness account of the incident. The reasons for the above view are stated herein below:
(a) The house of the deceased and of PW3 is separate and there exists a partition wall as would be clear from the testimony of PW1. The third floor roof from where P.W.3 has allegedly witnessed the incident does not have a staircase to access it. According to P.W.3, she used to sleep on that roof with her mother by climbing on to that roof with the help of a wooden ladder planted on the roof of the house of the deceased. According to P.W.3 she and her mother had separate cots there and she had carried her bedding including quilt to sleep there. Admittedly, house of PW3 and PW1 was partitioned by a wall. The third floor of PW3's house was just about 3 feet higher than the second floor with no staircase to have access to it, which suggests that it would be more like an open platform built on a pedestal with no room. Why would a person sleep there on the top of the roof, which has no staircase for access, and, that too, by planting a make-shift ladder or staircase on another person's house. This doubt could have been dispelled if the Investigation officer had found a staircase or a cot on the roof of the third floor at the time of making spot inspection. The site plan (Ext. Ka-14) prepared by the Investigation officer though discloses the cots of the deceased and the injured lying adjacent to each other on the roof of the second floor of their house but no cot is shown over the third floor of the house of PW3. The place from where P.W.3 and her mother allegedly witnessed the incident is shown as a platform about three and one-half feet higher than the roof where the deceased's cot was placed. No cot or any form of bedding, to enable persons to sleep on that platform, is shown in the site plan. Even in the statement of the I.O. existence of a cot or bedding at the top of the third floor, where the witness P.W.3 and her mother slept, and from where they saw the incident, is not disclosed. Thus, what follows is that, firstly, it is highly improbable that two ladies would climb a wooden ladder planted in another person's house to sleep at the top of the roof and, secondly, if they had actually slept there with cots laid there, why the presence of the cot and the covers etc. were not noticed by the Investigation officer and noted in the site plan, particularly, when it was allegedly prepared on the directions of the mother of PW3 who was allegedly with PW3 at the time of the incident though not examined as a witness.
(b) The other circumstance which puzzles the court and lends credence to our belief that PW3 was not there from where she allegedly spotted the accused is as to why the deceased would be sleeping nude in just a lower undergarment with a lantern lit on her head-side and thereby let herself be a spectacle to P.W.3 and her mother from the top of the third floor of their house. Normally, a person, particularly a lady, would like to cover herself if she is aware that she can be spotted by others with no clothes on. This suggests that either the deceased was aware that there was no one to see her in that state or that there was something else.
(c) Apart from above, it has come in the evidence of P.W.2 (Mathura), during his cross-examination, that when they had reached upstairs, Babita (PW3) and her mother Harpati arrived. If they had witnessed the incident they would have been the first to come and check the victims soon after the accused had left the place.
(d) If P.W.3 and her mother were present there, upon raising of their alarm, why would they be spared by the accused. More so, when their enmity with the family of Bharat Singh was greater than that with the informant and, at that moment, they were sitting ducks with no male member in the house.
We thus find substance in the defense argument that the presence of P.W.3 at the top of the third floor of her house, which had no access from a staircase, at the material time, appears to be highly improbable and doubtful and it appears that she has been set up as an eye-witness of the incident.
At this stage, we would like to notice certain other features that have surfaced during the course of cross-examination of the prosecution witnesses which throws possibility with regard to involvement of some other person in the crime. It has come on record that there had been a servant by the name of Manoj, aged about 25-30 years, who used to reside in the house of the informant. Though he was married but his family did not reside with him and after the incident he was not seen. It had come in the prosecution evidence that later he had left the job. The prosecution tried to explain this by stating that on the date and time of the incident he was at the tube-well. How far was the tube-well from the place of the incident is not disclosed. Apart from that, the main gate of the adjoining two-houses, that is of informant and his brother, was common. The father of the informant was sleeping on the ground floor of informant's brother's house. Ordinarily, when outsiders enter another person's house in the darkness of night they are likely to alert or disturb the inmates of the house. This circumstance probabilizes the involvement of some one from within. To clarify and to remove all doubts in the prosecution case as also to throw light on the genesis of the incident, the injured Sarmoz, who was sleeping next to the deceased, was a crucial and a material witness but she has not been examined.
We find from the prosecution evidence that Sarmoz's statement was allegedly recorded by the I.O. during investigation. But what she disclosed has not been disclosed by any of the prosecution witnesses. Admittedly, Sarmoz had gained consciousness. Further, nothing has been brought on record to demonstrate that she has expired or has been won over by the accused or for any other reason was not available as a witness. No explanation whatsoever has come in the prosecution evidence as to why she has not been produced as a witness.
The court below has not drawn adverse inference on account of her non-examination by observing that she was an outsider in the village and might not have been able to recognize the accused persons. This view of the court below does not appeal to us. Firstly, because even if she had been an outsider she may have been able to recognize her assailants when they were put in the dock. And, secondly, even if she had not been able to recognize the accused persons, she could have thrown light on the number of persons involved; the presence of PW3 on the spot; and whether any insider was involved. Thus, in our considered view, she was a material witness who could have unfolded the true facts. The prosecution by not examining her as a witness and by not tendering any explanation in that regard has invited an adverse inference with regard to the credibility of its case.
It is well settled that a material witness must not ordinarily be withheld. And, if withheld, in absence of cogent explanation, adverse inference is to be drawn, particularly, where the prosecution evidence available is coming through highly interested witnesses, who are not injured. It is equally well settled that an injured witness in terms of credibility is put on a higher pedestal than other witnesses because, firstly, his presence at the place of occurrence is guaranteed by his injuries and, secondly, why would he let off his assailants.
In Prabhat v. State of Maharastra : (2013) 10 SCC 391, failure to examine a crucial injured witness who could have thrown light on the prosecution narrative was held to have dented the credibility of the prosecution case.
No doubt, non-examination of an injured witness by itself may not be sufficient to discard the prosecution case particularly when it is not shown that the witness was alive or was in a position to depose in court or where there is a plausible explanation for his non-examination or where there are more than one injured witnesses and some or one of them have already been examined. Otherwise also, by mere non-examination of a witness the entire prosecution case is not to be discarded if, otherwise, the evidence led is highly reliable and satisfactorily proves the case beyond the pale of doubt. But where the prosecution evidence is coming from highly interested witnesses and there appears a doubt with regard to their presence and there appears a possibility of false implication or over implication, non-examination of an injured person as a witness, who is the lone survivor of the incident, in absence of any explanation in that regard, would assume importance and may dent the credibility of the prosecution case.
In the instant case, we find that all the prosecution witnesses are inimical and highly interested. Not a single independent witness has been examined to even demonstrate that shrieks were heard at Ram Chandra' house coming from the house of the informant, which according to the I.O. (P.W.8) was 65 paces away, thereby giving opportunity to the informant (PW1) and PW2 to rush to the spot. The place from where P.W.3 saw the incident and raised an alarm is an unnatural position inasmuch as that is a place which has no permanent staircase for access. Apart from that, the deceased was found only in a lower undergarment, with no other clothes on, which throws various questions for which, in our view, the injured alone, who was lying next to the deceased, was the best person to answer. Hence, in our considered view, non-examination of the injured witness, namely, Km. Sarmoz, in absence of any explanation offered by the prosecution for her non-examination, has seriously dented the credibility of the prosecution case.
There is another aspect of the matter which is with regard to strong possibility of over implication or false implication. It may be noticed that out of four accused persons, three are brothers and one, namely, Nand Kishore, is a person with whom litigation had been going on. The three injuries found on the body of the deceased could be from at the most three weapons and could also be from one, as they were all of similar nature i.e. incised wounds. Incised wound could be caused by a knife as well as Ballam, as is the case of the prosecution, provided the Ballam has sharp edges. The doctor (PW5) has ruled out the possibility of use of Bhala in causing injury to the deceased. On the body of the injured Sarmoz a solitary punctured wound, which could have been inflicted by Bhala, was found. Two persons are stated to have been armed with Bhala and two are stated to have been armed with Ballam. Under the circumstances, at least one person, who was armed with Bhala, has not caused injury. This gives rise to possibility of over implication.
Another aspect which needs to be considered is whether P.W.3 was really in a position to recognize the assailants in the light of a lantern and whether she could see as to who carried which weapon. In her testimony, P.W.3 stated that she heard mumbling sounds which woke her up. Thereafter she peeped down and could see the accused persons inflicting injuries with two types of weapon.
In her cross-examination, she, initially, stated that the back of the accused was towards her though, later, she corrected herself and stated that the face of the accused was towards her. The site plan prepared by the Investigation officer discloses the position of the two cots, that is of the deceased and of the injured. Both are in east-west direction. The head side of the cot is towards west. The cot of the injured is towards the south of the cot of the deceased. A lantern is shown to have been hanging from point 'G' which is at the head side of the cot of the deceased that is towards the western side. The location of P.W.3 and her mother is shown on the eastern side on the third floor of their own house. In her statement she has disclosed that she saw the accused towards the north of deceased's cot. When we see the site plan, if the accused were on the northern side of the cot of the deceased then they would have been far away from the cot of the injured, which was placed south of the cot of the deceased, and therefore they would not be at a striking distance. Hence, it appears that eye-witness may not have been able to witness the infliction of injury on the body of the injured. More over, from that position P.W.3 would get only the side view of the face of the accused as they would be looking towards the south.
When we take a conspectus of the entire prosecution evidence, we find that the prosecution has withheld the best evidence, namely, the person injured. They have not examined any independent witness. No recovery of any weapon of assault has been made. And above all, the place from where PW3 allegedly saw the incident is not a place where ordinarily a person would be, inasmuch as that place, firstly, was not accessible from the house of PW3 and, secondly, it had no permanent staircase access even from the house of the deceased. To top it all the I.O. has not shown that any cot or bedding was noticed by him lying there during the course of investigation or while preparing the site plan. Once, we doubt the presence of PW3 at the place of occurrence at the material time, the credibility of the remaining two witnesses of circumstance falls to the ground as they have allegedly responded to the cries of PW3 and her mother (who has not been examined).
In view of the discussion made above, we are of the considered view that the prosecution evidence on the whole fails to inspire our confidence as it poses more questions than what it seeks to answer. Hence, the benefit of doubt must go to the accused. Consequently, the appeal is allowed. The judgment and order dated 29.06.1993 passed by Additional Sessions Judge/ Special Judge, Meerut in S. T. No.294 of 1989 is set aside. The appellants are acquitted of the charges framed against them. If they are on bail, they need not surrender.
Let a copy of this order be sent to the trial court for compliance.
Order Date :- 21.10.2019 Sunil Kr Tiwari