Allahabad High Court
Sri Kant Pandey And Others vs State Of U.P. on 11 November, 2020
Bench: Manoj Misra, Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD RESERVED ON : 15.10.2020 DELIVERED ON : 11.11.2020 REPORTABLE Court No. - 48 Case :- CRIMINAL APPEAL No. - 1247 of 2000 Appellant :- Sri Kant Pandey And Others Respondent :- State of U.P. Counsel for Appellant :- R.M. Pandey,Rajesh Kishore Srivastava(Ac) Counsel for Respondent :- Govt. Advocate,Rajeev Kumar Saxena,Virendra Kumar Yadav Hon'ble Manoj Misra,J.
Hon'ble Saumitra Dayal Singh,J.
(Delivered by Hon'ble Manoj Misra, J)
1. This appeal assails the judgment and order dated 26.05.2000 passed by the IVth Additional District & Sessions Judge, Mirzapur in Sessions Trial No. 66 of 1997 by which the appellants Sri Kant Pandey (A1); Ram Kant Pandey (A2); and Amar Jeet Pandey alias Babboo (A3) have all been convicted under sections 302 read with Section 34 I.P.C. and sentenced to undergo imprisonment for life and fine of Rs. 5,000/- each with default sentence of six months rigorous imprisonment.
INTRODUCTORY FACTS INCLUDING THE PROSECUTION CASE
2. The prosecution case as per the first information report (FIR) (Ex. Ka-1), which was lodged on 29.01.1997 at 9:30 am at P.S. Kotwali Dehat, District Mirzapur by Manoj Kumar Pandey (P.W.1), is to the effect that in the morning of 29.01.1997, at about 8 am, while the deceased (Vijay Shyam Pandey), the uncle of P.W.1, was sitting with P.W.1 near the fireplace to ward off winter chill, the accused Sri Kant Pandey (A1); Rama Kant Pandey (A2); and Amar Jeet Pandey (A3) came with spear (Ballam) in their hands shouting and exhorting each other to finish off the deceased Vijay Shyam Pandey as he had been doing pairvi (pursuing of cases) in pending court cases. Upon hearing them, the deceased ran towards the door of his house but by the time could reach there, all the three accused surrounded him and stabbed him with Ballam. P.W.1 (the informant) raised alarm. On hearing his cries, Radhey Shyam Pandey (PW.2, the father of the informant and brother of the deceased); Sanjay Kumar Pandey (PW.3, another brother of the deceased); Mool Chand Gaur (not examined); Kamla (not examined) and others, who were all not examined, arrived and challenged the accused, as a result, all three accused escaped with their respective Ballam. Whereafter, the deceased was rushed to the District Hospital, Mirzapur where, upon arrival, the doctor (P.W.4) declared him dead.
3. The written report (FIR) was scribed by Surendra Bahadur Singh Yadav (not examined) on dictation of P.W.1, but was, allegedly, lodged by P.W.1
4. The inquest was held at the mortuary of the district hospital. It commenced at about 11 am and was over by 12:30 pm. The inquest report (Ex. Ka-7), amongst others, is witnessed by PW1 but not by P.W.2 and P.W.3, and the other inquest witnesses have not been examined in the trial.
5. The post-mortem examination was conducted at about 3:45 pm, on 29.01.1997, by Doctor S.P. Singh (P.W.5) who prepared and proved the post-mortem report (Ex. Ka.3). According to the autopsy report, following ante-mortem injuries were found on the body of the deceased : (i) stab wound, left side of chest 14cm below and backward to left nipple, measuring 2cm x ½ cm x cavity deep; (ii) stab wound 2cm x 1 cm over right side of abdomen 25 cm below right nipple and cavity deep; (iii) stab wound over back on right side of vertebral column, 38 cm below root of neck measuring 1 ½ cm x ½ cm x muscle deep; and (iv) stab wound over right side of thigh 23 cm above knee joint measuring 2 cm x ½ cm x muscle deep. Margins of stab wounds were clear.
6. Internal examination revealed that abdominal aorta was ruptured coinciding with track of injury no.2. Stomach was empty though small intestine contained partially digested food material and gases whereas large intestine had faecal matter and gases. According to the opinion of the doctor, the death was due to haemorrhage and shock as a result of ante-mortem injuries.
7. On external examination of the body, it was observed: "Average built. Muscular body. Rigor mortis present in both upper and lower limbs. Face pale eyes half closed. Putrefaction not set."
8. The time since death was estimated about one-half day.
9. The investigation was conducted and completed by Kapil Dev Tripathi (P.W.7) who, allegedly, recovered the murder weapon, a blood stained Ballam, from the spot and prepared its fard (recovery memo) (Ex. Ka-18). Collected blood stained earth and plain earth from the spot, prepared its fard (Ex. Ka 19). The blood on Ballam and blood stained earth was sent for chemical examination. The chemical report (Ex. 21) confirmed presence of human blood though the sample was not found fit to determine blood group. Soil comparison report ( Ex.Ka 22) confirmed that the plain earth and the blood stained earth had same soil characteristics. After recording statement of witnesses, PW7 prepared and submitted charge sheet (Ex. Ka 20) against all the three appellants. After taking cognisance on the police report, the case was committed to the Court of Session. Upon committal, charge of an offence punishable under Section 302 read with Section 34 I.P.C. was framed against all the three accused i.e. appellants. The accused denied the charges and claimed for trial.
10. During the course of trial, seven prosecution witnesses were examined. PW-1 (Manoj Kumar Pandey-informant); PW-2 (Radhey Shyam Pandey, father of the informant and brother of the deceased); and PW-3 (Sanjay Kumar Pandey, brother of the deceased) were the eye-witnesses of the incident. PW-4 Dr. K.K. Jain proved that the deceased was brought dead to District Hospital, Mirzapur by Manoj Kumar Pandey (P.W.1) at about 8:35 am in the morning of 29.01.1997. PW-5 Dr. S.P. Singh, who conducted the post-mortem, proved the post-mortem report. PW-6 Suryabhan Singh, who was posted as Head Moharir at P.S. Kotwali Dehat on 29.01.1997, proved the registration of the FIR, the Chik FIR and the GD entry thereof. He also deposed that special report of the registration of the FIR was sent and GD entry of its return (Ex. Ka 6) was made at 17:25 hours on the same day. PW-7 Kapil Deo Tripathi, the then Station House Officer of Kotwali Dehat, who conducted the investigation, proved various stages of the investigation including the documents connected therewith as also the site plan (Ex. Ka 17).
11. The incriminating circumstances emanating from the prosecution evidence were put to the accused under Section 313 Cr.P.C. The accused challenged the prosecution evidence as false and claimed that the incident occurred in the night; the deceased had several enemies; and that they have been falsely implicated. The defence, however, led no evidence.
12. The trial court found the prosecution evidence reliable and that the charge was proved beyond reasonable doubt. Hence, all the three accused were convicted under Section 302 read with Section 34 I.P.C. and sentenced accordingly, as already noticed above.
13. We have heard Sri I.K. Chaturvedi, learned senior counsel, assisted by Sri Pankaj Dwivedi and Sri Prakash Dwivedi, for the appellants; Sri Ankit Srivastava, learned A.G.A. for the State; and Sri Virendra Kumar Yadav, learned counsel for the informant.
SUBMISSIONS ON BEHALF OF THE APPELLANTS
14. Challenging the judgment and order of the trial court, the learned counsel for the appellants submitted as follows:-
(a) That there was no strong motive for the crime. Initially, the motive was attributed only to Sri Kant Pandey (A-1) as the person who threatened the deceased to withdraw case against his master, Prem Sao, but, later, it was improved to suggest that all the three accused were interested in the land that was subject matter of dispute between the deceased and Prem Sao. No evidence was led to demonstrate as to how the accused would get the land by withdrawal of the case when the land had already been sold to Prem Sao.
(b) That the incident occurred in the night, much before the time of the incident put up by the prosecution, and in some other manner, which is borne out from the following circumstances:
(i) The post-mortem of the deceased was completed by 3:45 pm on 29.01.1997. As per autopsy report estimated time since death was one-half day which is confirmed by presence of rigor mortis on both upper and lower part of the body as also by the presence of semi-digested food material in the small intestine; and faecal matter in the large intestine.
(ii) The body of the deceased was brought to the hospital at 8:35 am and was declared already dead by PW.4. The distance of the hospital from the place of occurrence is 10 km. As per the testimony of P.W.1 and P.W.3, the tractor of Panna Lal Bind was used for carrying the body to the hospital. Panna Lal Bind, as per the statement of P.W.1, resided 10-11 km away. Therefore, if the tractor of Panna Lal Bind was utilised, it would have taken at least an hour or about to arrive at the spot and another 30 to 45 minutes to reach the hospital. Hence, if the body reached the hospital by 8.35 am, the murder must have taken place prior to 7 am in the morning.
(c) There is material improvement in the prosecution case from that taken in the first information report lodged by P.W.1, alleged eyewitness of the incident. This improvement is contrived either with a view to hide the truth or to fill the gap in the prosecution story as a blood-stained Ballam was found by the police. Whereas as per the FIR all the three accused came with Ballam in their hands and after inflicting injuries upon the deceased escaped with their respective Ballam.
(d) The ocular evidence of all three eye-witnesses with regard to the mode, sequence and manner in which the three accused inflicted injuries on the victim is so identical and parrot-like that it gives an impression that they did not at all witness the incident but were just spinning a story to explain the murder of the victim. Further, presence of PW.2 and PW.3 is highly doubtful on the spot at the time of the incident as their presence is neither reflected in medical papers nor the inquest report. More over, in cross examination, PW-1 admitted that his father had built a Pucca house about two furlongs away.
(e) The external dimensions of the injuries found on the body of the deceased were similar so as to suggest that they could be from one weapon. This probability gets fortified from the circumstance that the Ballam allegedly recovered from the spot had blood stain up to a length of five hand-span when, otherwise, none of the injuries was through and through the body. Blood to this extent could be found only if the Ballam was used multiple times to inflict deep injuries or the Ballam was kept in an upright position resulting in dripping of blood from the top. But since the Ballam was found lying on the ground, possibility of over implication, out of enmity, is hightly probable.
(f) The investigation of the case has not been fair as, firstly, the recovery of the Ballam from the spot appears contrived; secondly, it was tampered so much so that the pointed metallic portion of the Ballam was dismembered from the stick portion and only the metallic portion was kept and sealed; and, thirdly, the finger prints available on the Ballam, if any, were neither lifted nor sent for forensic examination to ascertain whether Ballam found on the spot was used by the accused Sri Kant Pandey. The recovery of the Ballam from the spot appears doubtful, because it was shown lying next to the place where the deceased was assaulted whereas in the FIR it was stated that all the accused had escaped with their Ballam. The error, if at all, in the FIR cannot be inadvertent as the Ballam was lying on the spot. Whereas, the Ballam had blood up to a length of five hand-span which is much more than the depth of human body. More so, when none of the injuries was through and through. This clearly suggests that Ballam was hidden some where in an upright position letting the blood drip across its length. But when it was found, the prosecution story improved in conspiracy with the I.O. to save the guilty.
(g) The deceased had no issue. His wife had left him, probably, after legal proceeding. On his death, his property came to the informant's side. Further, the deceased was made accused in a murder case and suggestion was put to P.W.2 that he had evil eye on other persons' wife therefore his own wife had left him. All of which suggest that the deceased had several enemies. That apart, suggestion was given to P.W.2 and P.W.3 that they got him murdered to grab his property. Thus, there was strong motive for the informant side to spin a false story not only to save their own skin but also to implicate the appellants who were allegedly eyeing the land for which the informant side had been litigating.
15. In a nutshell, the submission of the learned counsel for the appellants is that the deceased was killed in the night hours either by persons with whom he had enmity or by his own family comprising his brothers and nephew which gets probabilized by discovery of the murder weapon in the house and to save their own skin, the informant side, with the help of the police, developed a case that the appellants committed murder. This theory gets credence from the circumstance that when the police discovered the murder weapon in the house, the case was improved to show that the appellant no.1 had left the murder weapon while fleeing. This theory gets further support from the circumstance that the police to help the informant side, dismembered the murder weapon into two parts. The stick portion, which could have carried finger prints, was not kept, whereas the metallic portion was kept as a material exhibit, and, deliberately, finger prints available on the stick portion of the Ballam, allegedly left by Sri Kant Pandey, were not lifted and compared with those of the accused.
16. In addition to above, it was submitted on behalf of the appellants that absence of injury on any of the prosecution witnesses of fact, against whom the motive, if any, was equally strong, being rival claimants to the land, suggests that they were either not present on the spot or they are hiding the truth. Further, there is no recovery of either blood stained clothes or the murder weapon or any incriminating material on the pointing out, or from the possession, of the appellants. Thus, there is no corroboration to the prosecution case which flows from highly interested witnesses. Lastly, it was urged, the prosecution produced no independent witness of the incident though, as per allegation, witnesses had arrived upon hearing the cries. All this leaves a ring of doubt around the prosecution case thereby entitling the accused-appellants the benefit of doubt.
SUBMISSIONS ON BEHALF OF THE PROSECUTION
17. Per contra, the learned A.G.A. and the learned counsel for the informant submitted that the motive for the crime has been proved. Even if the motive was not so strong, that cannot be a ground to acquit the accused against whom the guilt has been established by cogent and reliable ocular evidence which stood the test of cross examination and is not in conflict with, rather corroborated by, medical evidence . The doctor (PW-5), who conducted post-mortem examination had clearly suggested that death could have taken place within 12 hours, which suggests that the incident could have occurred at the time put by the prosecution. Nothing much turns on the use of Tractor of Panna Lal Bind to carry the deceased to the hospital because no question was put to the prosecution witnesses as to whether the tractor of Panna Lal had to be called or it was already available. On the issue that the ocular evidence was not specific with regard to the exact role of each of the three accused, it was submitted that absence of such particulars would not discredit the testimony, particularly, when it is deposed that all the accused came armed with Ballams and, after exhorting each other, surrounded the victim, inflicted fatal injuries, thereby exhibiting a common intention to finish off the victim. On the issue of improvement in the prosecution case from that taken in the FIR, it was contended that omission in the FIR was explained by PW-1 by stating that while dictating the FIR he may have inadvertently missed out mentioning that fact. Moreover, that omission was corrected at the earliest opportunity, that is while recording statement under section 161 CrPC. Hence, non mention in the FIR that one of the accused persons left the murder weapon while fleeing is inconsequential. It was submitted that the prosecution evidence is reliable and is corroborated by medical evidence, therefore the trial court rightly held that the prosecution was successful in proving the guilt of all the three accused beyond the pale of doubt. Hence, the appeal is liable to be dismissed.
18. Having noticed the rival submissions and having perused the record, before we proceed to test and analyse the submissions against the weight of evidence on record, it would be apposite to find out whether the eyewitnesses fall in the category of interested witnesses. If so, then what precautions are to be taken while appreciating and evaluating their testimony.
WHETHER THE WITNESSES OF FACT FALL IN THE CATEGORY OF INTERESTED WITNESS
19. In this regard it be noticed that PW1 is nephew of the deceased. PW2 is father of PW1 and brother of the deceased; and PW3 is the brother of the deceased. Except these three witnesses no other witness of fact has been examined. As per the prosecution case, victim's family including the above three witnesses and the three accused, who are real brothers, come from a common ancestor. One Shitla Prasad, coming from that ancestry, sold ancestral land to one Prem Sao. Accused Sri Kant Pandey (A-1) was under employment of Prem Sao. It is the case of the prosecution that the sale made by Sheetla Prasad in favour of Prem Sao was challenged by the victim's family including the three witnesses in civil court. In that case, arguments were heard a day before the incident. Pairvi on behalf of victim's family, in that case, was being done by the deceased. According to the prosecution, as taken in the FIR, accused Sri Kant Pandey (A-1), as an employee of Prem Sao, was threatening the deceased to withdraw the case. Later, to attribute motive to all the three accused, the prosecution case was improved to suggest that all the three accused were interested in that land as it was appurtenant to their house. Thus, viewed from any angle, the three eye witnesses are not only related to the deceased but also interested in the conviction of the accused persons as they perceive that the accused had an eye over the land for which they had been litigating with Prem Sao. Hence, in our view, the three eye-witnesses fall in the category of an interested witness.
LAW WITH REGARD TO EVALUATION OF TESTIMONY RENDERED BY AN INTERESTED WITNESS.
20. In Hari Obula Reddy v. State of A.P., (1981) 3 SCC 675, a three-judge Bench of the apex court, with regard to the care and caution with which the testimony of an interested witness is to be appreciated and assessed, in paragraph 13 of the judgment, as reported, had observed 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. Since perfection in this imperfect world is seldom to be found, and the evidence of a witness, more so of an interested witness, is generally fringed with embellishment and exaggerations, however true in the main, the court may look for some assurance, the nature and extent of which will vary according to the circumstances of the particular case, from independent evidence, circumstantial or direct, before finding the accused guilty on the basis of his interested testimony. We may again emphasise that these are only broad guidelines which may often be useful in assessing interested testimony, and are not iron-cased rules uniformly applicable in all situations."
Emphasis Supplied
21. In Jalpat Rai v. State of Haryana, (2011) 14 SCC 208, after reiterating the general principles as noticed above, in paragraph 42 of the judgment, as reported, the apex court cautioned the courts of the stark reality that where there is rivalry, hostility and enmity there is a tendency to over implicate and distort the true version against the person(s) with whom there is rivalry, hostility and enmity. In that context, it was observed as follows:
"42.......................... But it is a 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 an 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.
22. Prior to that, in paragraph 41 of the judgment, with regard to the mode to be adopted by the court to assess the worth of the testimony of interested witnesses, it was observed:
"41................To find out the intrinsic worth of these witnesses, it is appropriate to test their trustworthiness and credibility in light of the collateral and surrounding circumstances as well as the probabilities and in conjunction with all other facts brought out on record."
23. Thus, the law is clear that though testimony of an interested witness can alone form the basis of conviction but before acting on it the court must carefully test whether it is free from suspicion, embellishment and exaggeration and whether the substratum of the story narrated by the witness is such which is consistent with the other evidence on record, the natural course of human events, the surrounding circumstances and inherent probabilities of the case so that it carries conviction with a prudent person.
EVIDENCE LED BY THE PROSECUTION
24. Now, we shall proceed to notice the evidence brought on record by the prosecution. For the sake of convenience and better understanding of the case, the evidence led by prosecution is being split into multiple parts. First part is in respect of the relationship, status and place of living of the accused and the witnesses of fact including the location of the place from where blood stained soil and blood stained Ballam was recovered. Second part is with regard to the motive for the crime. Third part is in respect of the incident including the sequence of events, pre and post the incident. Fourth is the medical evidence in respect of the ante mortem injuries and the approximate time of death.
Evidence in respect of the relationship, status and place of living of the accused and the witnesses of fact including the location of the place from where blood stained soil and blood stained Ballam was recovered.
25. The evidence led in respect of relationship, status and place of living of the accused and the witnesses of fact would go to show that the victim and the accused had common ancestry. As per the site plan (Ex. Ka 17), prepared and proved by the I.O., the accused, the deceased and the witnesses had their place of residence in close proximity with each other. The deceased and his brothers' house block is shown towards north with three rooms and multiple exit points, opening in different directions, suggestive of separate exit points for the inmates of the house. The house of the accused lies separately towards south of the house of the deceased and his brothers. The house of one of the Pattidars, namely, Sheetla Prasad, lies south to the house of the victim and towards west of the house of the accused. The fire place where the deceased was allegedly sitting with PW1 is on extreme north at about 14-15 paces from the northern door of the deceased's house. Blood stained earth, where the deceased was allegedly assaulted, is towards north, next to the door of deceased's house, and just by its side is the place where the Ballam, allegedly, left by accused Sri Kant Pandey (A-1), was found.
26. In paragraph 8 of his cross examination, PW1 admitted that his father had two pucca quarters built near the road which were at a distance of two furlongs from the place of occurrence but at the time of the incident those quarters had no electricity supply.
27. As regards their status, all the three eye-witnesses examined by the prosecution are literate. PW1 is B.A. 1st year student with Political Science, Sociology and Ancient History as his subjects (vide paragraph 6 of his statement recorded on 10.11.1998). PW2, who is father of PW1, is a teacher in an Inter College; whereas, PW3 is a student appearing privately for intermediate examination (vide statement of PW3 made during his cross examination on 22.4.1999). Interestingly, according to PW2 (vide paragraph 15 of his cross-examination), the deceased was least literate. He had been educated upto class 2 or 3 but could sign. It has come in the evidence that though the deceased was married but his wife had left him after court proceedings and he was single with no issues. It has also come in the evidence that on his death, his property had come to the informant's family.
28. With regard to the antecedents of the deceased, it has come in the evidence that he had been implicated in a murder case. As regards the antecedents of the accused nothing much has come though it has come that they are all married with family.
Evidence in respect of motive for the crime
29. In respect of motive for the crime, in the FIR the motive shown is that a Pattidar of the victim's family, namely, Sheetla Prasad Pandey, had sold his land to one Prem Sao for whom Sri Kant Pandey (A-1) was working. The victim's family had questioned that sale in court in connection with which, on behalf of informant's side, the deceased was doing pairvi. In that proceedings, a day before the incident, arguments were heard. It has been alleged that Sri Kant Pandey (A-1) had threatened the victim not to do pairvi and to withdraw the case. Thus, in the FIR motive was limited to accused Sri Kant Pandey (A-1). Later, there was improvement. According to which, the accused were Pattidars of the informant side. Another Pattidar, Sheetla Prasad Pandey, while leaving the village, sold his house with appurtenant land to Prem Sao. Victim's family (informant side) had interest in that land, as a result, they challenged the sale in court. The land fell towards south of informant's house and towards west of accused persons' house. Therefore, all the accused were themselves interested in that land. And Sri Kant Pandey was putting pressure upon the deceased to withdraw the case.
30. However, no evidence was led to show as to how the accused persons would get that land by killing the victim. Further, there is no evidence that on any previous date or otherwise any incident of altercation or fight, on any issue, occurred between the accused and the victim which may have driven them to take a decision to finish off the deceased in the manner in which he was.
Evidence in respect of the incident including the sequence of events pre and post the incident
31. PW1 (Manoj Kumar Pandey) (the informant) in his testimony has deposed that, in the morning, when he woke up, he found the deceased sitting next to the fire-place located about 14 paces away from the door of the house of the deceased. After easing himself i.e. attending nature's call, he joined the deceased. At about 8 am, the accused persons (A1, A2 and A3), each armed with Ballam (spear), arrived exhorting each other to finish off the deceased as he was taking too much interest in the litigation. Upon hearing their shouts, the deceased stood up and ran, about 14 paces, towards the door of his house but was surrounded by all the three accused who assaulted him with Ballams, as a result, the deceased fell on the spot. On the alarm raised by PW.1, PW-2 and P.W3 including Mool Chand and Kamla Gaur, amongst others, arrived. They challenged the accused. The accused persons got worried and escaped. However, while escaping, accused Sri Kant Pandey (A1), dropped his Ballam. Immediately, thereafter, P.W.1 and others took the deceased to the hospital on a tractor of Panna Lal Bind, who resides 10-11 km away. It took them 30 to 45 minutes to reach the hospital. There, at the hospital, the doctor declared the deceased dead. After the deceased was declared dead, PW1 stayed at the hospital for about one-half hour and during that period he dictated the first information report to Surendra Bahadur (not examined); thereafter, he took the report and lodged it at the police station. He stated that his father (PW2) had accompanied him to the hospital but did not accompany him to the police station. At the police station, the investigating officer (I.O.) recorded his statement and, thereafter, the I.O. took him to the place of occurrence. He showed the place of occurrence to the I.O. The I.O. left two police officers there and from there he, along with the I.O., went to the hospital. At the hospital, inquest proceedings were held.
In his cross-examination,at paragraph 21, P.W.1 stated that when he went to the spot with the I.O. he had shown the Ballam to the I.O. The I.O. took that Ballam in his possession and, thereafter, he and the I.O. went to the Hospital where inquest was conducted and statements of PW2 and PW3 were recorded.
In respect of the place from where he watched the incident, PW1 stated that he witnessed the incident sitting next to the fire-place. When question was put to him as to why he himself did not escape seeing the accused coming and exhorting each other, he stated in paragraph 16 of his cross-examination that there was no reason for him to run. On question whether he made effort to save the deceased, he stated that he made no effort because he was alone and the accused were three. He could not tell whose blow hit first or who hit where and as to how the accused were locationally positioned qua the deceased. He just stated that all the three accused exhorted each other to finish off the deceased, thereafter, they surrounded the deceased and inflicted multiple blows. Some of the blows landed on the wall of the house though he could not tell whose blow landed on the wall. Interestingly, in paragraph 17 of his cross-examination, he stated that the accused had assaulted the deceased for about 5-6 minutes.
Upon a specific question as to why he did not mention in the report that Sri Kant Pandey (A-1) had left his Ballam, he stated that he might have missed out, inadvertently, due to panic, while dictating the report. He refuted the suggestion that the incident was of night; perpetrated by unknown person; that he had not witnessed the incident; and that false story has been spun to implicate the accused. He also refuted the suggestion that PW2 and PW3 were not on spot. In his cross-examination, however, PW1 admitted that on death of Vijay Shyam (the deceased), his property, comprising house and 2-4 Bigha land, came to his family.
32. PW2 (Radhey Shyam Pandey) and PW3 (Sanjay Kumar Pandey) both deposed that when they heard cries of PW1 they came out, witnessed the incident and challenged the accused upon which they ran away. While they were running away, Sri Kant Pandey (A-1) dropped his Ballam whereas the other two accused ran away with their Ballam. These two witnesses state that they along with PW1 took the deceased to the Hospital on a tractor where the doctor declared him dead.
In his cross examination PW2 stated that the tractor used for going to the hospital was of Surendra Bahadur whereas PW3 stated that the tractor was of Panna Lal Bind.
In respect of his location at the time of hearing the cries of PW1, PW2 stated that he was at the Dallan of his own house which is at a distance of about 20-22 paces from the house of the accused. He also stated that the house of the accused could easily be seen from that spot. He stated that from the outer portion of his house, the accused could be noticed if they move out of their house. However, on the date of the incident, he didn't see them coming but did hear faint noises of their exhorting each other to finish off the deceased and soon thereafter he heard cries of his son upon which he came out but had nothing for defence. He could not tell as to which accused was in the front and who was at the back as also who was on which side of the deceased. He could not tell as to who hit the deceased where.
PW2 stated that he was with PW1 at the hospital but as PW1 was going to lodge the report he remained at the hospital though he was not part of the inquest which took place at the hospital. He refuted the suggestion with regard to the false implication of the accused as also that he was not present at the spot as well as at the hospital therefore he was neither a witness to the inquest nor had gone to lodge the report.
Similar is the statement of PW3 who also, allegedly, came out with PW2 at the spot upon hearing the cries. He too could not tell which accused was where and who inflicted what injury and where.
Defence suggestion to PW2, inter-alia, was that the deceased was a person with criminal antecedents, had been involved in murder of Kajhanchi Kunbi; that he used to have evil eye on other women therefore his own wife had left him; and that he had an evil eye on the wife of PW3. It was also suggested that they (informant's side) had themselves finished him off in the night to grab his property as he had no other heir.
The suggestion that the informant side had planned his murder to grab his property was denied but the suggestion that the deceased was implicated in a murder case and that his wife had left him was not denied.
Similar suggestion was given to PW3. Apart from that, though he denied, it was suggested to him that the accused were falsely implicated to ensure that they are forced to flee so that their entire land in the village could be grabbed.
33. PW4 (Dr. K.K. Jain) deposed that at about 8.35 am PW1 had brought body of the deceased to the hospital. He kept the body at the mortuary and sent report (Ex Ka 2), in respect of receiving a dead body with injuries, to police station Kotwali City. Ex Ka 2, the report sent by PW4, is an information that a dead person (description given) with injuries was brought to the hospital by Manoj Kumar Pandey (PW1).
34. P.W.6 (Surya Bhan Singh) deposed that he was the Head Clerk at P.S. Kotwali Dehat (where the FIR was lodged) and was posted as such on 29.01.1997 when the first information report was lodged. He stated that on his instruction, Chik FIR was prepared by Assistant, Munna Ram (not examined), whose signature he recognises. Thereafter, GD entry of the report was made by him in his own hand and signature as Entry No. 11 at 9.30 am on 29.01.1997. He stated that special report was prepared by him and dispatched within one hour. Its return was entered by him on the same day as Entry No. 23 at 15:25 hours.
In his cross-examination, he specifically stated that the informant arrived at the police station at 9.30 am and, at that time, when he had prepared the GD entry of the report, the I.O. was present. Immediately after making entry of the report, he handed over copy of the Chik FIR, copy of the report and other papers to the I.O. Whereafter, the I.O., after taking the papers, left the police station with a Sub-Inspector, four constables and home-guard for the Sadar Hospital and the place of occurrence of which time, entered in the G.D. entry, is 9.30. am. He stated that the return of the I.O. on the same day is not entered in the GD. He could not tell as to when the I.O. returned though he could guess that he might have returned in the next two or three days. He admitted that on 29.01.1997 no other report of cognizable offence was entered in the GD. He, however, refuted the specific suggestion that the GD remains with the police and as per convenience and need entries are made.
35. P.W.7 (Kapil Deo Tripathi), the Investigating Officer, stated that after GD entry of the FIR, statement of the person, who made entry in the GD of the FIR, and statement of the informant was recorded and then he left for the hospital where inquest was done. At the hospital, on the same day, he recorded the statement of Radhey Shyam Pandey (P.W.2) and Sanjay Kumar Pandey (P.W.3) and, thereafter, went to the spot with the informant. He stated that distance of hospital from the place of occurrence is about 10 km and the distance of the police station from the place of occurrence is 9 km. He stated that he reached the hospital at about 10:30 am and stayed there till 12:30 pm, that is when the body was handed over for post-mortem. He stated that on 30.1.1997 he recorded statements of Vidyawati, Phool Chandra Gaur and Kamla Gaur. On 31.1. 1997, he recorded statement of Sub-Inspector Lotai Ram and the inquest witnesses. On 1.2.1997, he recorded statement of constable and home guard who got the post mortem conducted. On 3.2.1997, he recorded the statement of accused and, on 4.2.1997, forwarded the charge sheet. On the discovery of Ballam on the spot, he stated that it was found lying just about one and half feet away from the spot where blood was found on the ground.
In his cross examination, inter alia, question was put to him whether he properly investigated the alleged motive for the crime, particularly, when the land had already been sold. To which he replied by stating that Sri Kant Pandey (A-1) was working for Prem Sao and therefore that aspect was not investigated further.
Suggestion was given to the I.O. that the first information report was prepared on his suggestion and that he falsely showed recovery of the murder weapon as abandoned by one of the accused at the spot and deliberately did not lift finger prints available thereon for comparison because the murder weapon carried no finger prints of Sri Kant Pandey (A1). The I.O. refuted the suggestion by stating that as there was ocular evidence that Sri Kant Pandey had left that Ballam, he did not consider it necessary to lift finger prints for comparison.
Medical evidence in respect of ante mortem injuries and the approximate time of death
36. PW 4 (Dr. K.K. Jain) before whom the deceased was brought by informant (P.W.1) stated that the deceased was brought dead before him at 8:35 pm. He, however, was silent as regards the approximate time of death of the deceased.
37. P.W.-5 (Dr. S.P. Singh), who conducted the post-mortem and prepared report on 29.01.1997 at 3.45 pm, proved the report and deposed that all injuries found on the body of the deceased could be from a Ballam and that the deceased could have died within 12 hours of the post-mortem.
In his cross-examination, he stated that death could have occurred around 3:45 am and if 6 hours variance is taken, it could also be around 10 pm of the previous night. On the presence of semi-digested food and gases in the small intestine, P.W.5 stated that the incident could have occurred three hours after food intake. He stated that faecal matter found in the large intestine could be of the food intake taken much before the last meal. He stated that injury no.2 and 3 could not be from one blow. He stated that none of the wound found on the body was through and through. He stated that injury no.3 was from back whereas the rest of the injuries were from the front; and that injury no. 2 alone was sufficient to cause death.
ANALYSIS OF THE PROSECUTION EVIDENCE
38. At this stage, before we proceed to analyse the evidence, it would be useful to notice the law with regard to the role of motive in assessing the credibility of prosecution case. In this regard, it be observed that it is trite law that non-existence of motive would by itself not have a material bearing on the prosecution case, particularly, based on direct ocular evidence if the ocular account is otherwise reliable and trustworthy (vide Sheo Shankar Singh v. State of Jharkhand, (2011) 3 SCC 654, para 15). Moreover, motive is something which a person has in his mind and it is not always easy to tell as to what motivated the accused to commit the act for which he is put to trial. However, though existence of a motive for committing a crime is not an absolute requirement of law but is a relevant factor which is to be taken into consideration by the courts for assistance in analysing the prosecution evidence and determining the guilt of the accused (vide Alagupandi v. State of T.N., (2012) 10 SCC 451, para 29). Similarly, where the crime is alleged to have been committed with a particular motive, it would be relevant to inquire whether the pattern of the crime fits in with the alleged motive (vide State of U.P. v. Hari Prasad, (1974) 3 SCC 673, para 2). Further, in Badam Singh v. State of M.P., (2003) 12 SCC 792, the apex court, upon finding that the prosecution evidence was suspect and the deceased was a history sheeter and, therefore, could have had multiple enemies, whereas the prosecution had failed to prove motive against the accused put on trial, while giving benefit of doubt to the accused, in para 20 of the judgment, as reported, observed:
".........Even though the existence of motive loses significance when there is reliable ocular testimony, in a case where the ocular testimony appears to be suspect the existence or absence of motive acquires some significance regarding the probability of the prosecution case."
Thus, although absence of strong motive may not be fatal to the prosecution case but where there is an occasion to suspect the prosecution testimony, motive acquires some significance regarding the probability of the prosecution case.
39. Now, we shall proceed to analyse the evidence in detail. But before that, it would be useful to draw a broad picture of the prosecution case as borne out from the prosecution evidence noticed above. On the issue of motive for the crime, as we have already noticed, the prosecution has not come out with any clinching evidence to show that all the accused had strong motive to finish off the deceased, particularly, in the manner in which the prosecution narrates the incident. As per the prosecution case, the deceased, the witnesses and the accused, all resided in close proximity with each other. Therefore, if the accused had planned the murder of the deceased, they would not come out in the open and let themselves be noticed. Ordinarily, such dare devil murder, as narrated by the prosecution, takes place where the accused party is either infuriated or is in such a dominant position that it knows that regardless of the resistance they would be able to finish off the job. In that context, (a) there is no evidence to show that any such event had taken place which would have infuriated all the three accused, and, (b) there is also no evidence that all the three brothers had planned any such attack on the deceased. The only evidence that has come is with regard to accused Sri Kant Pandey (A-1) threatening the deceased, on behalf of his employer, Prem Sao, to withdraw the case. But no such extension of threats have been attributed to the other two accused. As to whether the accused were in such a dominant position that they feared no one, there is not much evidence with regard to criminal antecedents of the accused. Rather, they are stated to be persons having their respective families. Moreover, their alleged conduct of running away and getting so nervous, that one of them left his Ballam on spot in the process of fleeing, when challenged by unarmed PW2 & PW3 and others, belie the devil may care attitude attributed to them by the prosecution.
40. We are conscious that each person reacts differently to a given situation and therefore what has been stated above by itself is not sufficient to discard the prosecution story but it does puts us on guard to meticulously test the prosecution evidence.
41. At this stage, we would like to remind ourselves that though it is settled legal position that non-existence of motive would by itself not have material impact on a case based on direct ocular evidence but where the prosecution evidence appears to be suspect, the existence or absence of motive acquires some significance regarding the probability of the prosecution case as has been held by the apex court in Badam Singh (supra).
42. When we meticulously examine the prosecution evidence, we find that the prosecution case improves during the course of investigation. In the FIR the prosecution case attributes no motive to the two brothers of Sri Kant Pandey (A-1). There the motive is attributed only to Sri Kant Pandey, as a person who used to threaten the deceased to withdraw the case filed against his master, Prem Sao. Later, story was developed that all the accused were themselves interested in that land which was subject matter of litigation with Prem Sao. But, interestingly, the I.O. did not test the veracity of this story and we fail to understand, in absence of any evidence, as to how the accused would get the land by withdrawal of the case against Prem Sao who had become its owner consequent to its purchase by him. The other improvement during investigation was that in the FIR it was specifically stated that all the three accused, after inflicting injuries, fled with their respective Ballams, but, later, it was stated that Sri Kant Pandey had dropped his Ballam while fleeing from the spot. This improvement in ordinary circumstances might be inconsequential because an FIR need not be an encyclopaedia. But what is important is that the ocular evidence is general all throughout with respect to the role of each accused but all of a sudden it becomes specific. This puts us on guard so as to examine whether this improvement is contrived with ulterior purpose, on the prompting of the I.O., after the I.O. found the Ballam, to make the eye witness account consistent with the position on spot, or it was spontaneous at the time of recording the statement under Section 161 Cr.P.C. For this, we would have to examine whether the statement of PW1, PW2 and PW3, under section 161 CrPC, was recorded before or after the visit of the I.O. to the spot.
43. In that regard, it be noticed that with regard to the sequence of action by the I.O., post registration of the first information report, there is discrepancy between the statement of I.O. and P.W.1. According to P.W.1, post registration of the first information report, he along with the I.O. and other police personnel went to the spot. The I.O. saw the spot, took the Ballam into his possession and, thereafter, proceeded to the hospital to carry out inquest, etc. Whereas, according to P.W.7 (I.O.), after registration of the first information report, he proceeded straight to the hospital, conduced inquest proceeding, recorded the statement of P.W.2 and P.W.3 and, thereafter, proceeded to the spot. Both, PW7 and PW1, however, are consistent in their stand that statement of PW1, under section 161 CrPC, was recorded at the police station immediately after registration of the FIR. In that context, PW7 states that first he recorded the statement of the person who prepared the Chik FIR and, thereafter, he recorded the statement of the informant (PW1). The case diary sequence suggests that first the statement of Munna Ram (the person who prepared the Chik FIR), second the statement of Surya Bhan Singh (PW.6 - the person who made GD entry of the FIR) and third the statement of the informant was recorded. But, according to P.W.6, no sooner the FIR was registered at 9:30 am, the I.O. took the papers and left the police station at 9:30 am itself, for visiting the hospital and the spot, which fact is corroborated by the G.D. Entry as would be clear from the statement of PW6. Further, P.W.6 does not say that after registration of the FIR the statement of the person who prepared the Chik FIR, or his own, or of the informant, was recorded by the I.O. Thus, a serious doubt arises with regard to the recording of the statement of the informant immediately after lodging of the FIR and the sequence of events noticed above generates a strong probability that it was recorded after the I.O. had visited the spot. Further, this improvement does not appear to be natural as the prosecution testimony against all three accused is so general throughout that making it specific against one, in respect of dropping the weapon, appears to be contrived either to hide the truth or to make the testimony consistent with the position on spot. This possibility gets credence from the circumstance that, according to the prosecution witnesses of fact, admittedly, PW2 and PW3 had been with PW1 at the hospital and remained there in the hospital till inquest was over, therefore, as the FIR, according to PW1, was dictated by him at the hospital, the possibility that PW1 inadvertently omitted to state that Ballam was left by accused Sri Kant Pandey (A-1) appears highly improbable as he would then have been corrected by the other two witnesses of fact, namely, PW2 and PW3, who were with him.
44. Once that is the position, a serious doubt arises with regard to the genuineness of the prosecution version taken in the FIR thereby throwing possibility of the FIR version being contrived, may be on the basis of strong suspicion or for some other reason, which, upon discovery of the murder weapon on spot by the I.O., to offer explanation, was improved.
45. Another interesting feature of the case emerges when we notice the memorandum of recovery of the weapon of assault, dated 29.01.1997, which was marked Ex. Ka-18 on the basis of the statement of the I.O. (PW7). The memorandum is in vernacular. It reads as under:
"QnZ ysus dCtk iqfyl vkyk dRy ,d vnn cYye [kwu vkywnkA le{k xokgku loZ Jh lR;sUnz ;kno S/o jke tru ;kno o lksgu yky ;kno S/o ';ke lqUnj fuoklhx.k xzke ftxukSMh Fkkuk dksrokyh nsgkr fetkZiqj lEcfU/kr eq0v0la0 21@97 /kkjk 302 IPC Fkkuk dksrokyh nsgkr fetkZiqj ds ?kVukLFky ij iMs gq, eqfYte JhdkUr ik.Ms; S/o lq[knso ik.Ms; fuoklh HkjiV~Vh }kjk gR;k esa iz;qDr cYye fuEufyf[kr gqfy;k dk dCtk iqfyl esa fy;k x;kA ,d ckal dh ykBh ftlesa 14 xk¡B o 14 iksj gS ds ,d rjQ djhc 10 vaxqy yEck yksgs dh iksiyh yxh gS ftlesa pwMh esa djhc 2 okfyLr 2 vaxqy YkEck yksgs dk cYye yxk gSA oYYke ds vxzHkkx djhc 5 ckfYkLr rd [kwu yxk gSA cYye e; yksgs dh iksiyh ykBh ls rksMdj vyx djds cYye dks ,d dIkMsa esa j[kdj loZ eqgj fd;k x;kA uewuk eqgj cuk;k x;kA QnZ ekSds ij fy[k i g0& lR;sUnz ;kno g0&vi0 g0&lksgu yky ;kno S.O izn'kZ d&18 29-01-97"
46. The witnesses of the recovery are Satyendra Yadav and Sohan Lal Yadav. Neither of them has been examined. The interesting part of this recovery memorandum is that the stick part of the Ballam was separated from the metallic part, which was bloodstained. The metallic part was kept in a sealed cover whereas there is no statement that the stick part was separately sealed and kept. Moreover, we have not been shown that it was separately kept and sealed.
47. When a Ballam is used by a person, he holds the Ballam from its stick part because holding it from the metallic part may expose its holder to the risk of injury. The finger print of its user would therefore be available on the stick part. Interestingly, the memorandum of recovery states that the stick part was separated from the metallic part and the metallic part was sealed which suggests that the stick part of the Ballam was not sealed for being made a material exhibit. This throws a serious doubt on the credibility of the investigation as to whether there was an attempt to hide the truth. Hence, a specific suggestion was put by the defence to the I.O. that the finger print on the Ballam was not got matched with that of Sri Kant Pandey, who had allegedly used the Ballam, because he knew that it did not carry his finger prints. The investigating officer very cleverly dodged the suggestion by stating that as there existed an eye-witness account, he did not consider it necessary to get the finger prints matched.
48. No doubt, lapses on the part of an investigation officer may not by itself be fatal to the prosecution case but where the lapses are such that it generates suspicion as to whether there is an effort to hide the truth and it hampers the discovery of truth by the court or seriously prejudice the defence of the accused, in the facts of a case, it may give rise to an inference that the investigation was with a view to cover up the truth thereby causing serious dent to the credibility of the prosecution case.
49. In the instant case, according to the prosecution, there were three assailants, each armed with Ballam. Only one Ballam was found on spot whereas no effort was made to recover the other two Ballams. The Ballam that was found was not got connected with any of the accused by getting the finger prints thereon matched. Rather, the stick portion, where finger prints might have been available, was dismembered and separated from the metallic part, which alone was sealed. No effort was made to recover blood stained clothes either of the witnesses or of the accused. Further, no effort was made to even investigate the motive for the crime against the other two accused. Charge sheet was admittedly submitted by 4th of February 1997, that is within a week of the incident. All this leaves us to wonder whether the investigation was with a view to find out the truth or to frame the accused thereby throwing various possibilities, as suggested by the defence to the prosecution witnesses of fact and to the I.O., that it was a night incident where some of the enemies of the deceased might have done the job and nobody could witness the incident and, later, on the basis of suspicion, story was weaved, or, the perpetrator of the crime was some one from within and therefore to hide the truth, not only the story was weaved but the murder weapon was falsely shown to have been recovered from the spot and dismembered by severing that portion which could have carried the finger prints. All these doubts get pronounced when we notice that the prosecution had failed to disclose any strong motive for the accused to commit the crime.
50. In respect of the medical evidence with respect to the approximate time of death, doctor K.K. Jain (P.W.4), before whom the deceased was brought by informant (P.W.1), stated that the deceased was brought dead before him at 8:35 am. He remains silent as regards the approximate time of death of the deceased. One thing is clear from his statement that the deceased was brought dead at the hospital at 8.35 am. There is no corroboratory material (i.e. blood-stained clothes, etc. of witnesses) to suggest that a profusely bleeding person was carried to the hospital. Therefore, in absence of any corroboratory material, whether it was a dead corpse brought at the hospital is anybody's guess. Further, P.W.-5 (Dr. S.P. Singh), who conducted the post-mortem, though in his statement in chief stated that the deceased might have died within 12 hours of the post-mortem but in cross-examination stated that death could have occurred at about 3:45 am and if 6 hours variance is taken, it could also be around 10 pm of the previous night. On the basis of presence of semi-digested food and gases in the small intestine, P.W.5 stated that the incident could have occurred three hours after food intake. It is noteworthy, that the prosecution case is not that the deceased had consumed anything in the morning just before the incident though it is the prosecution case that the deceased had eased himself by attending nature's call in the morning, yet faecal matter was found in the large intestine. Though, with regard to the presence of faecal matter in the large intestine, the doctor clarified that even if a person had relieved himself in the morning it is still possible that some faecal matter is left in the large intestine but when the entire medical evidence is taken into account the probability of death having taken place much earlier than the time put by the prosecution, is quite high.
51. No doubt, medical evidence cannot estimate the exact time of death with precision but it does serve as a probability and can be taken into consideration with other pieces of evidence to find out as to whether there is a ring of truth or doubt surrounding the prosecution case.
52. In the instant case, one thing is clear that the medical evidence does not rule out the possibility of death of the deceased having taken place in the night hours or at least in the wee hours of the morning, much prior to the time of death put the prosecution, which, as per the statement of P.W.1, is about 8 am in the morning.
53. In this regard, at this stage, it would be useful to notice another piece of oral testimony which, coupled with medical evidence, gives rise to a strong probability that the incident occurred much earlier than what has been put by the prosecution. Before noticing that testimony, it be noted that in the prosecution evidence it has come that the distance of the hospital from the place of occurrence is about 10 km. The body of the deceased was brought to the hospital on a tractor at about 8.35 am. P.W.1 in his cross-examination disclosed that the tractor used for carrying the body of the deceased was of Panna Lal who resided 10-11 kms away. The above statement of P.W.1 was recorded on 08.12.1998. On the same day, when the statement of P.W.2 was recorded he admitted that deceased was taken on a tractor to the hospital but he did not disclose whose tractor it was. Later, on 09.12.1998, during his cross-examination, P.W.2 cleverly disclosed that the tractor was of Surendra Bahadur. Surendra Bahadur, allegedly, resided nearby. He was the person to whom the FIR was dictated by PW1 (the informant) but he was not examined. The reason for PW2 to state that the tractor of Surendra Bahadur was used was perhaps to show that the tractor was brought from the neighbourhood and not from a far off place. Because if Panna Lal Bind's tractor had been used, who resided 10-11 kms away, the tractor coming from that far and then reaching the hospital, would not have been possible within 35 minutes of the incident. Hence, keeping in mind that PW2 is literate and is stated to be a teacher, there appears to be a deliberate improvement by him over the testimony of PW1. But, interestingly, the statement of PW1, with regard to the tractor being of Panna Lal Bind, is corroborated by PW3. Hence, it could be concluded that the tractor of Panna Lal Bind was used in carrying the deceased to the hospital. Though no specific question has been put to the prosecution witnesses as to whether the tractor was available then and there or had to be called but when we take this piece of evidence/circumstance in conjunction with the deliberate attempt of PW2 to show that tractor of a neighbour was used, suspicion arises as to whether the prosecution is hiding true facts and when we take it conjointly with the medical evidence, it suggests that the death could have occurred much earlier than 8 a.m. This probabilizes the defence suggestion that the incident took place much earlier than that stated by the prosecution and that it occurred in the night or wee hours of the morning, more so, when there is no link evidence to suggest that a bleeding human body was carried to the hospital.
54. However, as it is well settled that where the ocular evidence is clear, specific and wholly reliable, and is not in absolute conflict with the medical evidence so as to render it completely unreliable, the ocular evidence would prevail over the medical evidence, we would now proceed to weigh the ocular evidence, keeping in mind the analysis already made above.
55. As far as the ocular evidence is concerned, there are three prosecution witnesses of fact, namely, P.W.1 (the informant), who is the nephew of the deceased, P.W.2 (father of P.W.1), who is the brother of the deceased, P.W.3, who is another brother of the deceased. The accused are brothers inter se. According to the prosecution witnesses, the accused were interested in the same land in respect of which, according to the prosecution case, there was litigation between informant's side and one Prem Sao, whose servant was the appellant no. 1 (Sri Kant Pandey). Under the circumstances, as we have already found, the prosecution witnesses would fall in the category of an interested witness. Hence, their testimony would have to be meticulously examined and tested with a view to find out whether it is free from suspicion and is wholly reliable and trustworthy. In addition to that, we would have to rule out possibility of over implication.
56. The testimony of the prosecution witnesses of fact, in nutshell, is that while the deceased and PW1, both having attended nature's call, were sitting next to the fireplace, the accused-appellants came with Ballam in their hand and exhorted each other to finish off the deceased as he was doing pairvi in the civil litigation; upon which, the deceased ran towards the door of his house, where he was surrounded and inflicted blows with Ballams by all the three accused, some of the blows even fell on the wall of the house; seeing all that, P.W.1 raised alarm. On his cries, P.W.2 and P.W.3 as well as others arrived, they challenged the assailants, as a result, the assailants fled away. While fleeing, one of the assailants, namely, Sri Kant Pandey (A1), dropped his Ballam on the spot whereas, the remaining two ran away with their respective Ballams. This ocular account of the incident narrated by P.W.1 is reiterated by P.W.2 and P.W.3.
57. The interesting part of the ocular testimony is that when specific questions were put to these eye-witnesses as to which accused inflicted what injury and where and as to who inflicted the first injury, as also who stood where qua the victim including who was ahead and who was behind, none of the eye-witnesses, who are literate persons, could answer. No doubt, where a large number of persons surround the victim and inflict him with multiple blows it might be difficult to particularise the role of an individual accused as held in Budhwa @ Ram Charan and others v. State of M.P., 1991 Supp (1) SCC 9 (para 5), where there were 15 accused inflicting blows on the deceased. But, in the instant case, firstly, the alleged group of assailants is not that large which may block the view completely, secondly, amongst four injuries, there were three from the front and one from the back and, amongst those four, just two were cavity deep, therefore, the person who inflicted those injuries could, in all probability, be noticed, thirdly, the three eye witnesses were allegedly watching the incident from different angles, as would be clear from the site plan, hence, they had every opportunity to witness the blows separately, and, fourthly, these witnesses are literate and were not father, son or wife of the deceased, or persons who received injuries in the incident, as to entitle them the allowance of being in complete shock. Thus, statement of these three witnesses rendered in a parrot-like manner, that all the three accused exhorted each other, surrounded the deceased and inflicted blows, could be considered tutored or contrived, as has been observed by the apex court in Ram Bilas V. State of MP, 1997 SCC (Cri) 1222, and made with a view to avoid the travails of a close cross-examination. On this aspect, we are fortified by the note of caution put by the apex court in Budhwa @ Ram Charan and others v. State of M.P. (supra) while holding that in a melee where several people are giving blows at one and the same time it is quite impossible to particularise the blows. In para 5 of that judgment, as reported, the apex court had observed as follows:
"In a melee where several people are giving blows at one and the same time it will be impossible to particularize the blows. If any witness attempts to do it, his veracity is doubtful. But it cannot be forgotten that it is simpler to make an omnibus statement that all the accused assaulted with their weapons because that obviates close cross-examination."
(Emphasis Supplied)
58. Another noticeable feature of the case is that the deceased suffered no injury on his hands, though he suffered as many three stab wounds from the front. Ordinarily, when a person is awake and multiple attempts are made to stab him he would use his hands to stop the infliction of blows and in the process might receive injuries on his hands unless hands are tied or caught hold by any of the accused. Absence of injury on the hands does throw a possibility that either the deceased's hands were held or he was taken by surprise. The prosecution evidence does not show that his hands were held and, admittedly, as per prosecution case, the deceased tried to run away, hence, the element of surprise is ruled out. Thus, lack of specific description of the manner and mode of assault becomes all the more relevant to throw a doubt whether the eye witnesses actually witnessed the incident or have proceeded to implicate the accused on strong suspicion or there was something else, particularly, when we notice it from the angle that the deceased was single, with past record of being implicated in a murder case and that on his death his property came to the informant's family. More so, when only a solitary murder weapon was found on the spot.
59. Another important feature of the case is that though, according to PW1, the deceased was surrounded by the three accused and assaulted for as long as 5-6 minutes and, in the process, multiple blows were inflicted, some of which fell on the wall, but ante mortem injuries found were only four. Importantly, the ante-mortem injuries found on the body were all of similar dimensions, though depth was different, which could be from one weapon. Admittedly, except for one Ballam, which as per prosecution case was lying on spot, no other weapon was recovered. Further, from a perusal of the memorandum of recovery of that Ballam, we find that up to 5 hand-span (Ballisht) from the top the Ballam had blood. Noticeably, according to the doctor (PW5), none of the injury was through and through. Hence, if blood is found on the top of the Ballam up to an extent of two feet or more, the use of that Ballam for inflicting more blows than one gets probabilized unless that Ballam is kept in an upright position so as to let the blood trickle down by gravity. But, according to the prosecution case, the Ballam was found lying on the ground. Thus, even though four ante mortem injuries were found as against three assailants, the possibility of over implication cannot be ruled out, particularly, when we notice that initially motive was attributed only to accused Sri Kant Pandey as a person who used to threaten the deceased on behalf of his master Prem Sao.
60. At this stage, we may observe that though it is well settled that in a case where there appears over implication it is open to the court to sift the grain from the chaff and convict that accused against whom the evidence is found reliable but that exercise would not be permissible here. Because the prosecution case against all the three accused is so inextricably mixed that if we separate one the entire case would fall. Hence, if we have to extend benefit of doubt to any of the three accused, it would have to be extended to all. In this regard it would be useful to notice the decision of the apex court in Lakshmi Singh v. State of Bihar, (1976) 4 SCC 394, where, in paragraph 17 of the judgment, as reported, it was observed:
"17. ... This is a case where it is not possible to disengage the truth from falsehood, to sift the grain from the chaff. The truth and falsehood are so inextricably mixed together that it is difficult to separate them. Indeed if one tries to do so, it will amount to reconstructing a new case for the prosecution which cannot be done in a criminal case."
SUMMARY OF OUR ANALYSIS AND THE CONCLUSIONS DERIVED THEREFROM
61. On over all assessment of the evidence and circumstances analysed above, we summarise our analysis with conclusions as follows:
(a) The motive for the crime though feeble, at the time of lodging the FIR, was attributed only to the accused Sri Kant Dubey (A-1) and not to his two brothers, by stating that he (A-1) wanted the deceased to withdraw the case instituted against his master (Prem Sao) questioning the sale of property/ land made by Sheetla Prasad, a Pattidar, and for that end had been threatening the deceased. Later, the prosecution story improved so as to attribute motive to all the three accused, who are real brothers, by claiming that they all were interested in that land. But as this land was admittedly sold to Prem Sao and the litigation of the deceased was with Prem Sao therefore burden was on the prosecution to show as to how the other two brothers would gain if the litigation ends, which the prosecution failed to discharge. We are thus of the view that the prosecution has not been able to prove any serious motive for the accused persons to have committed the murder in the manner alleged by the prosecution.
(b) The prosecution case improved during the course of investigation from that taken in the FIR not only to explain an important discovery, that is the murder weapon, but also to attribute motive to all the accused, which is suggestive of the prosecution story being contrived.
(c) The investigation was perfunctory. No effort was made to test whether all the three accused had motive to commit the crime in the manner alleged. No effort was made to connect the murder weapon allegedly found on the spot with the accused to whom its use was attributed. And, inexplicably, it was tampered so much so that the stick portion of the murder weapon (Ballam) was separated from the metallic portion and the metallic portion alone was sealed. This act of the I.O. hampered the discovery of truth as also prejudiced the defence of the accused because the concerned accused was deprived of the opportunity to apply for comparison of the finger prints available on the stick portion, if any. Further, no effort was made to recover the other two Ballams as well as blood stained clothes of either the accused or the informant or any member of the victim's family to confirm their participation or presence at the time of the incident. The investigation was rather hastily concluded and charge-sheet forwarded within just 7-8 days. All that leads us to infer that the investigation was not with a view to discover the truth but to complete a formality or may be to hide the truth.
(d) The medical evidence as regards probable time of death, the time by which the body reached the hospital, the distance of the hospital from the place of occurrence and the distance of the place of occurrence from the place of residence of the person whose tractor was used for carrying the body to the hospital, suggest that death of the deceased had taken place much earlier than the time of the incident put by the prosecution thereby probabilizing the defence suggestion that it occurred in the night hours, which seriously dents the prosecution story.
(e) The ocular evidence rendered by all the three witnesses of fact is totally general and parrot-like in respect of role of all the three accused even though the three witnesses, allegedly, had opportunity to witness the incident from different angles and, therefore, if they had really witnessed the incident they could have particularised the role of each accused. But they miserably failed in that regard, despite specific questioning. Interestingly, however, to explain the discovery of murder weapon, all of them became specific to state that it was left by Sri Kant Pandey though, in the FIR, the allegation was that all three ran away with their Ballams. Keeping in mind that all the witnesses of fact are literate, not father/ son/ wife of the deceased, and they suffered no injury in the incident, their parrot-like statement that all three accused exhorted each other, surrounded the deceased and inflicted multiple blows, without specifying their role on material counts, despite specific questioning, leads us to infer that they have either not witnessed the incident which might have occurred in the night, as suggested by the defence, or they have contrived a story on strong suspicion, or for some other reason, may be because there was involvement of someone from within, either to grab the property of the deceased who was alone, as he was left by his wife and had no issue, or for some other reason, as also suggested by the defence. Thus, on overall assessment, keeping in mind the other conclusions/ inferences enumerated above, we are of the firm view that the prosecution case is not free from suspicion and the ocular evidence is not reliable and trustworthy.
(f) There is also a strong possibility of over implication generated by following circumstances: (i) a solitary murder weapon was recovered, that too on spot, with blood stains found up to a length which was much in excess of the depth of any of the injuries found on the body of the deceased, suggestive of its multiple use; and (ii) the external dimension of the injuries, other than its depth, found on the body of the deceased was similar. Possibility of overimplication derives strength from the improvement made during the course of investigation to attribute the use of the murder weapon discovered on the spot specifically to Sri Kant Pandey (A-1). All of this, coupled with the fact that the prosecution has failed to prove any cogent motive to the two brothers of Sri Kant Pandey to commit the crime, while keeping in mind that there is always a possibility of over implication, particularly, when the prosecution case flows from an interested witness, the probability of false implication of at least two accused (i.e. A-2 & A-3) is very high. But, as the case against all the three accused is so inextricably mixed that it is impossible to sift the grain from the chaff, all the three accused are entitled to the benefit of doubt.
62. In view of the foregoing analysis and conclusions, we are of the considered view that the prosecution has failed to discharge its burden to prove the charge against all the three accused beyond the pale of doubt. Hence, the benefit of doubt must go to all the accused. Consequently, the conviction and sentence order passed by the trial court is liable to be set aside.
63. Accordingly, the appeal is allowed. The judgment and order dated 26.05.2000 passed by the IVth Additional District & Sessions Judge, Mirzapur in Sessions Trial No. 66 of 1997 is set aside. All the appellants are acquitted of the charge framed against them. It be noted that all the appellants were, earlier, on bail pending this appeal. But, subsequently, on non-appearance of their counsel, non-bailable warrants were issued against them. Although there is no report that non bailable warrants were executed but according to the learned counsel for the appellant the non bailable warrants have been executed and the appellants are now in jail. In view of the above, it is directed that if the appellants are in jail, they shall be released forthwith, unless wanted in any other case, subject to compliance of the provisions of Section 437 A CrPC before the trial court below. In case the non-bailable warrants have not been executed, they shall stand withdrawn and if the appellants are not in jail they need not surrender, subject to compliance of the provisions of Section 437-A as directed above.
64. Let a copy of this order be sent to the trial court for compliance.
Order Date :- 11.11.2020.
Sunil Kr Tiwari