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PETITIONER: STATE OF U.P.

       Vs.

RESPONDENT: BHAGWAN AND OTHERS

DATE OF JUDGMENT:       08/08/1997

BENCH: M. M. PUNCHHI, V. N. KHARE

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T KHARE, J.      By the  present appeals  the appellant,  State of U.P., questions the  correctness of  the judgment  dated 27.2.1990 rendered by  the High  Court  of  Judicature  at  Allahabad, acquitting the  respondents herein  by allowing  the appeals preferred  by   the  respondents   and  setting   aside  the convictions recorded against them by the Additional Sessions Judge, Mainpuri.  Before we take up the arguments of learned counsel for  the appellant,  it is  necessary to set out the prosecution case.      In short, the prosecution story is that on 22.2.1985 at about 2.30  p.m., in  village Nagla  pati,   Police  Station Bhongaon, District  Mainpuri, the  deceased  Kalicharan  was returning from  the court  of SDM, Bhongaon, after attending the proceedings  in his  case.  When Kalicharan reached near the house  of Ganga  Ram, the  accused Malkhan  s/o. Bhagwan Singh armed  with country  made pistol,  Sher Singh  son  of Bhagwan Singh armed with rifle, Bhagwan Singh son of Dhanpat armed with  country made  pistol, Murari  son of  Ram Narain (Murari died  during sessions  trial) armed  with gun,  Shri Krishan son  of Bhola  Nath armed  with country  made pistol (Katta), Indrapal;  son of  Ram Bharose  armed with  country made pistol,  Bhim Sen  son  of  Lakhan  Singh,  armed  with country made pistol and Netra Pal son of Bhagwan Singh armed with country  made pistol,  emerged behind  the fodder grass and hut of Dampat Lal and on exhortation of Bhagwan Singh to kill the  deceased, Kali  Charan, Sher Singh, Malkhan Singh, Shri Krishna  and Indrapal  fired at  Kalicharan with  their kattas and  guns with  intention  of  killing  him.    After hearing the  gun shots  and hue  and cry Bhopal son of Natho Ram, Ram  Chandar son of Parsadi.  Puttu son of Kalyan Singh and the  wife of  Kalicharan. Smt.  Laungshri came  rushing. Tika Ram  who was following Kalicharan from t he house, came forward with  exhortation.  In order to save Kalicharan, his wife Smt.  Laungshri  fell  upon  the  body  of  Kalicharan, Bhagwan Singh  again exhorted  the accused  persons to  kill Smt. Laungshri.   On  such exhortation, Netra Pal and Murari fired shots from their respective weapons on Smt. Laungshri. Kali Charan  and his  wife, Smt. Laungshri died at the spot.

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Thereafter, the  accused dragged  the dead  bodies from  the pace of  occurrence towards  the direction of West and after crossing the  road, took  the bodies  to the Bitaura of Deva Jeet, where  they were attempting to burn the dead-bodies by sprinkling kerosene  oil thereon.   Tika Ram, brother of the deceased, Kali Charan, orally lodged the F.I.R. on 22.2.1985 at about  3.15 p.m. at P.s. Bhongaon, District Manipuri.  On the basis  of the  report lodged  by Tika  Ram, a  case  was registered at  General Diary  No.28 under Sections 147, 148, 307/149, 302/149  and 201  IPC, against the accused Malkhan, Sher Singh,  Bhagwan Singh, Murari, Shri Krishan, Indra Pal, Bhim Sen  and Netra  Pal.   Senior Sub  Inspector of  Police Sukhvir Singh, who started investigation of the incident, on reaching the  spot, saw  the dead  bodies which  were  still during.     The  Investigating  Officer  with  the  help  of villagers who  were  collected  at  the  place,  managed  to extinguish the fire by pouring water on it and the bodies of Kali Charan  and his  wife Smt.  Laungshri  were  recovered. Thereafter, the  inquest report  and plan  were prepared and the dead-bodies  were sent  for post-mortem, by Shri Sukhbir Singh.   At this  stage, Senior  Inspector (Police)  Bhogaon undertook the  investigation of the cane in his hand.  Since the age  and time  of death  of the  deceased could  not  be ascertained  by   Dr.  Gulecha,   Medical  Officer,   S.N.M. Hospital, Firozabad, who conducted the post mortem, the case was referred  to the  State  Medico-Legal  Expert,  for  his opinion. Dr. B.K. Saxena, Superintendent Balrampur Hospital, Lucknow, conducted  the second  post mortem  examination  of both the  bodies on  28.2.1985.   According to him, cause of death was  due to  the injuries  caused  by  fire  arm  ante mortem, and  the time  of death  was  around  2.30  p.m.  on 22.2.1985.      The  learned   Sessions  Judge,   after  recording  the testimony of  the witnesses,  held that  the accused persons are guilty  under sections  302/147, 201/149,  307/143  IPC. The accused  Bhagwan and  Netra Pal  were sentenced to dealt under Section  302 IPC  and all other accused were sentenced for life  imprisonment.   Aggrieved by  the judgment  of the learned Sessions  Judge, Bhagwan  and  Netra  Pa;  preferred Criminal  Appeal   No.2060/88  while   Malkhan  and   others preferred Criminal  Appeal No.2048/88 before the High Court. The High  Court allowed  both  the  appeals  by  its  common judgment dated  27.2.1990, which  is under  challenge in the present appeals.      Learned counsel for the appellant urged that there were minor  discrepancies   in  the   statements  of  prosecution witnesses and  as such  their testimony  could not have been discarded by  the High  Court.   Counsel also urged that the testimony of the eye witnesses could not have been discarded by the  High Court merely because all the eye-witnesses were found to  be from  the same  family and  had enmity with the accused persons.   Since  these  two  arguments  are  inter- linked, we propose to deal with both the arguments together. Before we  proceed to  consider the arguments, we would like to observe  here that,  it is true that testimony of an eye- witness having minor discrepancies has to be given weightage unless discrepancies  are such which demolish the basic case of the  prosecution.   similarly, the  testimony of  a  eye- witnesses who is partisan by itself is also not a ground for discarding  the  evidence  as  testimony  of  such  partisan witness  necessarily   is  not   false  evidence,  but  such testimony requires  thorough and careful scrutiny.  in light of such legal position, we proceed to consider the arguments advanced on  behalf of  the appellant  in order to establish the case,  the prosecution  has examined  Tika  Ram  (PW.1),

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Bhopal(PW-2) and  Putta Lal  (PW-3), who  are eye witnesses. From the  evidence on  record, as  well as the statements of these three eye witnesses, it is almost established that the eye-witnesses are  partisan witnesses  and had  enmity  also with some  of the accused directly.  The finding of the High Court that  these three witnesses are partisan witnesses and had enmity  with the  accused persons is consistent with the evidence on  record.   The testimony  of such  eye-witnesses cannot be  discarded on  the ground  that they  are partisan witnesses, but  their testimony  has to  be judged with more circumspection.   The case  of the  prosecution as stated in the FIR  was that  the incident  in which Kalicharan and his wife Laungshri  was shot  dead, occurred  near the  house of Gangaram and the accused bad emerged at that time out of the but of Dammi Lal from behind the Kharpatwar.  In the present case,  the   investigating  officer  after  spot  inspection prepared a  map of the place of occurrence shown as spot ’A’ and ’B’  Spot ’B’  is a place where Kalicharan, the deceased was first  shot at  and spot ’A’ is place where the deceased Kalicharan fell down.  The distance between the two spots is 40 paces.  Spot B  is situate  towards the eastern corner of the eastern  chabootra of  Ganga  Ram’s  house.  Spot  A  is situate at  north western corner of Lakhan’s house. Tika Ram (PW-1) who is the brother of the deceased Kalicharan, in his cross-examination has  stated that  Kalicharan was  fired at near the house of Lakhan and at that time he was at the gate of   Lakhan and  Gangaram. He further stated that Kalicharan after walking  one or  two paces  fell down Smt. Laungi-shri arrived and  fell upon  the body  of the deceased Kalicharan and she  too was shot and then both were murdered. According to his  testimony, Kalicharan fell down after running one or two paces after he was fired. The place of occurrence as set out in the FIR becomes doubtful because the distance between the spots  A and  B is about 40 paces. It is also noticeable that no  blood was  found at spot B where it is alleged that Kalicharan - the deceased was first fired. Similarly, Bhopal (PW-2) stated  that Kalicharan received gun shot in front of Gangaram’s house and the deceased after walking 2 or 3 paces he fell  down.  All  these  three  eye  witnesses  in  their respective testimony  stated that kalicharan was first fired at on  the spot  ’B’ shown  in  the  map,  prepared  by  the investigating officer  which was  towards the  east side  in front of  the house of Gangaram. Kalicharan, thus, according to these  eye witnesses,  thereupon ran  towards  the  place where the  accused were present and where he fell down after walking 2/3  paces. The testimony of these eye witnesses are totally different  than the story set out in the FIR and the statement of  the eye  witnesses, as  recorded under Section 161 Cr.  P.  C.  For  these  reasons,  commencement  of  the occurrence at  the point ’B’ or firing at Kalicharan for the first time becomes doubtful.      The further case, as set out in the FIR is that, on the exhortation Sher  Singh, Malkhan  Singh,  Shri  Krishna  and Inder Pal  who were  armed with  Kattas and  guns, fired  at Kalicharan when his wife Laungi Shri also fell upon his body to save him. At this stage, Bhagwan Singh again exhorted and then Netra  Pal and Murari fired at Smt. Langshri with katta and gun,  whereas Tika  Ram (PW  1) is  his testimony stated that on  the  exhortation  of  Bhagwan  Singh,  Sher  Singh, Malkhan Singh,  Shri Krishna  and Indra  Pal Kalicharan  was fired whereupon  Smt. Langshri fell upon Kalicharan’s person in order  to save  him. At  that stage  Bhagwan Singh  again exhorted to  kill Smt.  Laungshri, as she has become an eye- witness, Murari  and Netra  Pal and  Bhagwan fired  at  Smt. Laungshri. Curiously  enough, Tika Ram (PW 1), in his cross-

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examination stated that Kalicharan was first fired at by Sri Krishna, Sher  Singh Malkhan  Singh, Netra Pal and Bheem Sen together at  the gate  of Ganga  Ram. However,  this witness also added  the name  of Bhimsen  as well amongst the person who alleged  to have fired for the first time at Kalicharan, which was  not the  case of the prosecution. Similarly, Tika Ram mentioned  the names  of Netra Pal among those who fired for the  first time and also Bhagwan Singh along with Murari and Netra  Pal as  co-murderers, which  was at variance with the case  in F.I.R.  Bhopal (PW  2), in his testimony stated that Murari, Bheem Sen and Netra Pal fired at Smt. Laungshri which is not the case in the FIR. According to Puttu Lal (PW 3), he after having heard the noise, arrived at the place of occurrence. According  to him, Sher Singh shot at Kalicharan in his  presence. On  exhortation of  Bhagwan Singh  to kill Smt. Laungshri  as she  has become  an eye-witness,  Murari, Netra Pal  and Bheem  Sen fired  at Smt. Laungshri, Tika Ram was the  real brother  of the deceased Kalicharan and Bhopal (PW 2)  was an  accused in  the case of murder of the son of accused Bhawan  Singh and  if the  cause of  murder of  Smt. Laungshri was her becoming an eye witness, then it that case Tika Ram  (PW 1)  and  Bhopal  (PW  2)  who  were  following Kalicharan ought  to have  been shot  at. Thus reasoning for killing  Smt.   Laungshri  renders  the  testimony  of  eye- witnesses as  unreliable. Further, Tika Ram (PW 1) stated in the FIR  that the accused fired at him when he was 7/8 paces behind Kalicharan  the deceased.  But, curiously  enough, he stated that  he did not receive any injury as he hid himself into the  trench of kachcha road. The place where he alleged to have  hid himself  from where he witnessed the occurrence was not  exhibited in  the map. The fact that Kalicharan had not received  any injury  coupled with other facts as stated above, makes  his presence doubtful as an eye witness at the place of  occurrence. Putta  Lal (PW  3)  in  his  testimony stated that when gun shot was fired, he took his own gun and arrived at near  Mathia which is 16 paces towards south east from  the   point  ‘B’  and  from  there  he  witnessed  the occurrence. This  witness stated that he has shown the place of hiding  to the  Investigating Officer, but such place has not been  exhibited in  the map.  The FIR  further discloses that the  accused    persons  dragged  the  dead  bodies  of Kalicharan and Smt. Lungshri from the place of occurrence to bitaura of  Deojeet and  sprinkled kerosene  oil thereon and were going  to ignite  the fire.  This part  of  the  F.I.R. suggests that  PWs-1 and  2, after  witnessing the sprinkled kerosene oil  on the  dead  bodies,  rushed  to  the  police station. Tika  Ram (PW  1), in  his statement stated that as soon as  the accused  persons commenced  dragging   the dead bodies of  the deceased persons, he fled away from there. He could not  be see sprinkling of kerosene oil and also he did not get  the facts  ascribed in  the FIR.  Similarly,  PW  2 (Bhopal) stated that he remained in hiding till the time the dead bodies  were taken  to Pitaura  and the  accused person were going  to ignite the fire having sprinkled kerosene oil on the  dead bodies  and as soon as the accused persons were about to  ignite fire  he left for the police station. Here, were find  contradiction in  testimony of  PW 2  and  PW  1, Bhopal and  Tika Ram  - respectively, and such contradiction becomes very relevant when the investigating officer did not record the  statement of  any of  the eye witnesses named in the FIR on the first day although he arrived at the place of occurrence at  about  3.30  P.M.  Non-recording  of  such  a statement  on  the  day  of  occurrence  despite  sufficient opportunity  to   record   it   raises   doubt   about   the authentically of  the contents  of  the  FIR  and  also  the

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testimony of  the eye  witnesses. There are many other vital discrepancies in the testimony of the eye witnesses inasmuch as the  testimony of  the witnesses are at variance with the case set  out in  the First  Information Report and as such, the High  Court was justified in discarding the testimony of the witnesses.  The High Court has correctly appreciated the evidence and  at no  stretch of  imagination it  can be said that the  findings recorded  by the High Court are perverse. For these  reasons there  is no  merit in these appeals. The appeals are accordingly dismissed.