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PETITIONER: NAMWAR DUBEY & ORS.

       Vs.

RESPONDENT: STATE OF UTTAR PRADESH

DATE OF JUDGMENT21/08/1995

BENCH: MUKHERJEE M.K. (J) BENCH: MUKHERJEE M.K. (J) NANAVATI G.T. (J)

CITATION:  JT 1995 (6)   222        1995 SCALE  (4)774

ACT:

HEADNOTE:

JUDGMENT:                           JUDGMENT M.K.MUKHERJEE.J.      The four appellants herein and two others were tried by the  Additional   Session  Judge.   Gyanpur   for   offences punishable under  Sections 148.  302/149 and  307/149 of the Indian Penal  Code (IPCD for short). The trial ended with an order of  conviction and  sentence recorded  against all  of them. Aggrieved thereby they preferred an appeal in the High Court which,  as regards  the appellants was allowed only in part in  that their conviction under Section 148 IPC was set aside but the other convictions were only altered to section 302/34 and  307/34 IPC.  The  remaining  two  convicts  were however, acquitted of all the charges.      Briefly stated. The prosecution case as narrated in the trial was  that on  September 8.1977,  at or about 8.00 A.M. Kamla Shankar  Dubey (PW  1) accompanied  by his brother Ram Surat Dubey  (PW 2)  and uncle  Loghar Dubey  (the decoased) left their house for going to Bhadoni. When they reached the Mirzapur Bhadhi  Road near  the local  market  all  the  six accused     persons.who  were  armed  with  various  weapons including pistols  accosted them  and. on the exportation of Jadunath (since  acouitted). Siya  Ram  Rahhiya  and  Namwar (three of  the appellants  herein) started firing from their respective fire-arms  causing injuries to PW 2. All three of them then  started running away in different directions only to be  chased by the miscreants. While PW 1 succeeded in his attempt other  two could not as PW 2 fell down nit by Ranvir (the other  appellant with  a candasa  and loonar.  Who  had taken refuge in the shop of one lalta. met with his death at the hands  of the  other miscreants. Thereafter PW 1 went to the police  station and  looced  an  information  about  the incident.  SHO   Surender  Bahadur  Singh  (PW  5)  took  up investigator of  the case  and first  went to the Government Hospital Bhadohi where he recorded the statement of PW 2. As PW 2’s  condition was  grave he was referred to the District Hospital Varanasi  and there a Magistrate recorded his dying

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declaration.      PW  5  went  to  the  scene  of  occurrence  and  after completing the inquest proceeding forwarded the dead body of Lagnar to  the Government  Hospital. Gyanour for post-mortem examination. After  examining the  witnesses and  completing other formalities of investigation he submitted charge-sheet and in  due course  the case  was committed  to the Court of Session.      The accused  persons pleaded  not puilty to the charges levelled against  them and  contended  that  they  had  been falsely implicated due to enmity.      To bring home the charges levelling against the accused the prosecution  examined Kamla  Shankar Dubey  (PW  1)  and injured Ram Surat (PW 2) as the two eye witnesses. The trial Court found  that notwithstanding  the fact  that they  were closely related  to the  deceased their  evidence  could  be safely  relied  upon  as  it  stood  corroborated  by  other evidence on  record. In appeal, the High Court held that the claim of  Kamla Shanker  Dubey that he had seen the incident could not  be entertained  as his house was at a distance of 2.1/2 furlongs  away from the scene of occurrence and in all probabilities he  had reached  the place  of  incident  only after it had taken place. The High Court, however, found the evidence of  PW 2  reliable and  sufficient to  sustain  the prosecution case  but nonetheless  felt inclined to dive the benefit of  reasonable doubt  to the  other two  accused  as there was  no evidence  of their participation in the actual assault either of PW 2 or the deceased.      Having regard  to the fact that the High Court has, for justifiable reasons.  found the presence of PW 1 at the time of the  incident doubtful we are left with the only question as to  whether the  evidence of  PW 2  is of such a sterling quality that  it could  be made the sole basis for upholding the conviction  of the  appellants by  the  High  Court.  To answer  this  question  we  have  carefully  considered  his evidence in  the light  of  other  evidence  on  record  and particularly  his  statement.  which  was  recorded  by  the Magistrate as his dying declaration (Ext. Kha.1) and can now be treated  as his  earlier statement recorded under Section 164 of  the Code  of Criminal Procedure, and keeping in mind that while  exercising its jurisdiction under Article 136 of the Constitution  this Court does not reappraise evidence to disturb a  concurrent  finding  of  fact  unless  brave  and palpable  injustice   has  been   occasioned  thereby.  Such exercise of ours persuades us to unnesitatingly hold that PW 2 is  unworthy of  credit as his evidence materially debarts from and  contradicts his  earlier statement made before the Magistrate.      The most  qlaring discrepancy which goes to the root of the matter  and shatters  the cases  version of  PW2  is  as reparce the  site where  the murderous attack on Lognar took place. According  to his  sworn testimony the entire assault on the deceased took place in the shop of Lalta which as the evidence on  record shows.  was at a distance of about 40/50 feet to  the east  of Varanasi-Bhaoohi  Road. In his earlier statement he  however stated  that his uncle was shot at and died on  the road.  Indeed, in  his earlier statement he did not even  mention about  the shod  of Lalta.  The reason for such shifting of the place of occurrence is not far to seek. The investigation  Officer stated  in his  evidence that  he found blood  only in  the shop  of lalta  and nowhere  else. Obviously to  fit in  with the presence of blood only in the shop of  Lalta, PW  2 mace  the above concocted statement in Court. As  regards the  sequence of  events also  there is a marked discrepancy  in the evidence of PW 2. At the trial he

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stated that  as soon as they reached the road the miscreants bounced upon  them. But his earlier statement was that after coming out  of their  house they  went to  a petal  shop and there while they were waiting for the betels ordered by them to be served the miscreants came there and attacked them. PW 2 next  stated in  his deposition that after being assaulted he rushed  to the  courtyard of  Ramdular which  was on  the western side of the Varanasi, Bhadohi Road and from there he saw the  assault on  his uncle  in the  shop of  Lalta.  but earlier he  had stated  that after  being assaulted  when he went running  to the  house of Ramdular he did not allow him to enter  apprehending that  he (Ramdular) might be fired at also and  that he  fell down  in front of his gate. There is also material  discrepancy as  regards the nature of weapons carried by  the appellants  and used  for assault or him and his uncle.      In appears that when PW 2 was confronted with different portions of his earlier statement in accordance with Section 145 of  the Evidence Act. he claimed that he was unconscious and denied  to have  made the  statements attributed to him. That such claim of PW2 was false - and was obviously made to ripple out  of the  earlier statement  - would  be  patently clear from  the unimoachable  evidence  of  Dr.  B.P.  Singh (D.W.I who  was the  Medical Officer of Varanasi Hospital at the material  time. He  testified that  in his presence Shri S.M. Maurya.  Deputy Collector,  Varanasi recorded the dying declaration of  Ram Surat in his presence and that Ram Surat was in  his senses.  In support of his testimony he not only proved the  dying declaration  but also  his endorsement and that of  the Magistrate  thereon. In  cross  examination  he denied the  suggestion that  Ram Surat was senseless and was not able to give the statement.      For  the   foreading  discussion   we  are   unable  to conclusively infer  solely relying upon the evidence of PW 2 that the  four appellants  committed the murder of his uncle or attempted  to commit his murder. The appeal is therefore, allowed. The  impugned order  of conviction  and sentence is hereby set aside and the appellants are acouitted of all the charges.  The   appellants  who  are  in  jail  be  released forthwith.