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PETITIONER: JAGDISH NARAIN & ANR.

       Vs.

RESPONDENT: STATE OF U.P.

DATE OF JUDGMENT:       12/03/1996

BENCH: MUKHERJEE M.K. (J) BENCH: MUKHERJEE M.K. (J) ANAND, A.S. (J)

CITATION:  JT 1996 (3)    89        1996 SCALE  (2)650

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T M.K. MUKHERJEE,J.      Jagdish Narain,  the appellant  No.1, alongwith his two sons Avdhesh  and Avinash  and two  friends Rameshwar Dayal, the appellant  No.2, and  Surya Prakash  was  tried  by  the Additional Sessions  Judge, Pilibhit, for rioting and murder of his  step brother  Jitendra Nath.  The trial  ended in an acquittal; and  aggrieved thereby  the  State  preferred  an appeal. During  the pendency  of the appeal Avdesh and Surya prakash  died  and  consequently  their  appeal  abated.  As regards others,  the High  Court affirmed  the acquittal  of Avinash  but  reversed  that  of  the  two  appellants  (the respondents therein)  and convicted and sentenced them under Sections 148  and 302,  read with Section 149 IPC. The above order of  conviction and sentence is under challenge in this appeal preferred under Section 379 Cr.P.C.      Shorn of  details  the  prosecution  case  is  that  on February 11,  1977 the deceased, his son Achal Kumar (P.W.1) and his  servant Devi Ram (P.W.2) were carrying sugarcane in a bullock-cart  from their village Mar to a mill in Bilsanda for getting  the same  weighed. While  P.Ws. 1 and 2 were in the bullock  cart with  the latter  driving it, the deceased was following  the cart on foot. At or about 2 P.M. when the cart had,  after crossing  a culvert  situated on the kachha road, reached  near the  field of  one Ram  Autar, the  five accused persons  came out from behind a heap of straws armed with deadly  weapons including guns. Then the appellant No.1 fired a  shot at  Jitendra Nath  felling him  down. The  gun which the  deceased was  carrying also  fell  down.  On  the exhortation of  Avinash and  Avdesh, the appellant No.2 also fired  a   shot  hitting   Jitendra  Nath.   Thereafter  the miscreants fled away alongwith the gun of the deceased.      Achal Kumar  (P.W.1) then  rushed  to  Bilsanda  Police Station, which  was at a distance of one mile, and lodged an information about  the incident.  On that information a case was registered  against the  accused persons  and  Inspector

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D.R. Thapalyal (P.W.6) took up investigation. He went to the scene of  occurrence accompanied  by other  police personnel and after  holding inquest  upon the  dead body  sent it for post-mortem examination.  He prepared a site plan and seized some blood  stained earth, two pellets and one pair of shoes from the  site. On  completion of investigation he submitted chargesheet against  the accused  persons and  in due course the case was committed to the Court of Session.      The accused  persons pleaded  not guilty to the charges levelled against  them and  their defence  was that they had been falsely implicated.      To sustain  the charges  levelled against  the  accused persons the  prosecution relied  upon the ocular accounts of Achal Kumar (P.W.1) and Devi Ram (P.W.2), who were allegedly in the  cart, and  Daya Ram  (P.W.3) who claimed that he was passing along  the road  at the  material time. Besides, the prosecution  examined   the  doctor,  who  held  post-mortem examination upon the deceased, the Investigating Officer and some other  formal witnesses. The reasons which weighed with the trial  Court to  disbelieve  the  evidence  of  the  eye witnesses and,  for that matter the prosecution case, are as under: i)   The testimonies of the eye witnesses stood contradicted by their  earlier  statements  recorded  under  Section  161 Cr.P.C.; ii)  Though, according  to the  eye witnesses,  the deceased was attacked while going along the sait (road) his dead body was found in the field (of Ram Autar) and no explanation was offered by the prosecution to reconcile the anomaly; iii) Even though  the Investigating Officer admitted that he knew from  the very  beginning about  the importance  of the place from  where the  shots were  fired he did not indicate that place  in the  site plan  he prepared  and such failure made the investigation faulty and suspicious; iv)  No attempt  was made  by the  Investigating Officer  to ascertain to whom the pair of shoes found near the dead body belonged; and v)   A number  of documents  were filed  on  behalf  of  the accused persons  to show  that the  deceased had enmity with other persons also and, therefore, it could not be said that they were  the only  persons who  were likely  to commit the murder of  Jitendra Nath,  more so  when he was armed with a gun.      In reversing  the order  of acquittal  and passing  the impugned order the High Court first reappraised the evidence in the  light of  the above  findings and  demonstrated that each of  them was  perverse. It then considered the evidence of the  three eye witnesses to ascertain whether it could be safely  relied   upon  to   base  a   conviction.  On   such consideration the High Court found that PWs 1 and 2 were the most probable  and natural witnesses and that their evidence was  credit  worthy.  The  High  Court,  however,  left  the evidence of  PW 3  out of consideration as, according to it, he was  not an  independent witness.  The High Court further found that the evidence of P.W.1 stood fully corroborated by the PIR which was lodged within half an hour of the incident and  that   the  evidence  of  both  P.Ws.  1  and  2  stood corroborated by the medical evidence.      This being  a statutory  appeal we have, for ourselves, carefully perused  the evidence  adduced by  the prosecution (no evidence  was led  by the  defence) particularly that of P.W.1 and  2 keeping  in view  the judgments  of the learned Courts below; and we are constrained to say that none of the grounds  canvassed   by  the   trial  Court  to  acquit  the appellants  can   be  sustained.  The  contradictions  which

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persuaded the  trial Court  to disbelieve  the eye witnesses related to their omissions to make certain statements before the Investigating Officer, which they made before the Court. On perusal  thereof we find that the omissions were so minor and insignificant that they did not amount to contradictions at all.  To eschew  prolixity of  this judgment we, however, refrain from  detailing them  except referring  to  one,  to illustrate the entirely wrong approach of the trial Court in this regard.  PW 2  testified that while driving the cart he was sitting  on the  bundles of  the sugarcane  but  in  his statement recorded  under Section  161 Cr.P.C.  he  did  not state that  he was  so seated.  Indeed, it  is only for this minor omission that the trial Court found the evidence of PW 2 wholly unreliable.      As regards  the comment  of the  trial Court  that  the prosecution made  no attempt to dispel the anomaly about the place where  the deceased was attacked and his dead body was found, we are in complete agreement with the observations of the High Court that the above comment was the outcome of non consideration of  the evidence.  P.W.1 testified  that while the cart was proceeding on the kacha road and it had reached the place where the road turned towards the east, his father moved on  to the  pagdandi, (hilly  circuitous track)  which passes through  the field  of Ram  Autar. According  to  the evidence of  P.W.6, which  remained uncontroverted, the dead body of  Jitendra was  found lying  near the pagdandi and he held  inquest   there.  The   evidence  of  the  prosecution witnesses thus  clearly proves  that Jitendra  Nath met with his death  at the  place where  his dead body was Lying. The finding of  the trial Court in this regard must therefore be said to be perverse.      In responding  to the next criticism of the trial Court regarding  the  failure  of  the  Investigating  Officer  to indicate in the site plan prepared by him the spot wherefrom the shots  were allegedly  tired by  the appellants  and its resultant effect  upon the  investigation itself,  the  High Court observed  that such  failure did  not detract from the truthfulness of  the eye  witnesses and  only amounted to an omission on  the part  of the  Investigating Officer. In our opinion neither  the criticism  of the  trial Court  nor the reason ascribed  by the  High Court  in its  rebuttal can be legally  sustained.   While  preparing   a  site   plan   an Investigating Police  Officer can  certainly record  what he sees and  observes, for  that will be direct and substantive evidence being  based on  his personal knowledge; but as, he was not  obviously present  when the incident took place, he has to  derive knowledge  as  to  when,  where  and  how  it happened from  persons who  had seen  the incident.  When  a witness testifies  about what he heard from somebody else it is ordinarily  not admissible in evidence being hearsay, but if the  person for  whom he heard is examined to give direct evidence within  the meaning  of Section  60 of the Evidence Act,  the   former’s  evidence   would  be   admissible   to corroborate  the  latter  in  accordance  with  Section  157 Cr.P.C.. However  such a statement made to a Police Officer, when he  is investigating into an offence in accordance with Chapter XII of the Code of Criminal Procedure cannot be used to even corroborate the maker thereof in view of the embargo in Section 162 (1) Cr.P.C. appearing in that chapter and can be used  only to  contradict him  (the maker)  in accordance with the  proviso thereof,  except in those cases where sub- section (2)  of the  section appeals. That necessarily means that if in the site plan P.W.6 had even shown the place from which the  shots were allegedly fired after ascertaining the same from  the eye witnesses it could not have been admitted

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in evidence being hit by Section 162 Cr.P.C. The law on this subject has been succinctly laid down by a three Judge Bench of this  Court in  Tori Singh vs. State of U.P., AIR 1962 SC 399. In  that  case  it  was  contended  on  behalf  of  the appellant therein  that if  one looked at the sketch map, on which the place where the deceased was said to have been hit was marked,  and compared  it with  the  statements  of  the prosecution witnesses  and the medical evidence, it would be extremely improbable  for the  injury which  was received by the deceased  to have  been caused  on that part of the body where it had been actually caused if the deceased was at the place marked  on the  map. In repelling the above contention this Court observed, inter alia,:      "..........the mark  on the sketrh-      map was  put by  the  Sub-Inspector      who  was   obviously  not  an  eye-      witness to  the incident.  He could      only have put it there after taking      the   statements    of   the    eye      witnesses. The  marking of the spot      on   the   sketch-map   is   really      bringing on  record the  conclusion      of the  Sub-Inspector on  the basis      of  the   statements  made  by  the      witnesses  to   him.  This  in  our      opinion would  not be admissible in      view of the provisions of S. 162 of      the Code of Criminal Procedure, for      it is  in effect  nothing more than      the statement  of the Sub-Inspector      that  the  eye-witnesses  told  him      that the  deceased was  at such and      such place  at the time when he was      hit.  The   sketch-map   would   be      admissible so  far as  it indicates      all  that   the  Sub-Inspector  saw      himself at  the spot;  but any mark      put on  the sketch-map based on the      statements made by the witnesses to      the    Sub-Inspector    would    be      inadmissible in  view of  the clear      provisions of  S.162 of the Code of      Criminal Procedure as it will be no      more than  a statement  made to the      police during investigation."                      (emphasis supplied) While on this point, it will be pertinent to mention that if in a  given case  the site plan is prepared by a draftsman - and not  by the  Investigating  Officer  -  entries  therein regarding the  place from  where shots  were fired  or other details derived  from other witnesses would be admissible as corroborative evidence as has been observed by this Court in Tori Singh’s case (supra) in the following passage:      "This   Court   had   occasion   to      consider  the  admissibility  of  a      plan drawn  to scale by a draftsman      in which  after  ascertaining  from      the  witnesses  where  exactly  the      assailants and the victims stood at      the  time   of  the  commission  of      offence, the draftsman put down the      places in  the map,  in Santa Singh      v. State  of Punjab,  AIR  1956  SC      526. It  was held  that such a plan      drawn to  scale was  admissible  if

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    the  witnesses   corroborated   the      statements of  the  draftsman  that      they  showed  him  the  places  and      would not  be hit  by S.162  of the      Code of Criminal Procedure."                      (emphasis supplied) The trial  Court ought not to have also made much out of the failure on the part of the Investigating Officer to find out to whom  the pair of shoes found near the dead body belonged for the  prosecution rested  its case upon eye-witnesses and not circumstantial  evidence. If the prosecution intended to prove the  accusation levelled  against  the  appellants  by circumstantial evidence, then proof of the circumstance that the shoes  belonged to one of them would certainly have been incriminating but  when the prosecution rested its case upon the evidence  of the  eye witnesses  that question was of no such moment. In any event, the lacunae as pointed out by the trial Court  could not have in any way impaired the evidence of the  eye witnesses  nor affected the prosecution case, as rightly observed by the High Court.      The last  reason given by the trial Court to disbelieve the prosecution  case in  the context  of the  fact that the deceased had  enmity with  others is  absurd for such a plea would have  been available  to anyone  who might  have  been arraigned for  the murder.  The High  Court,  was  therefore fully justified  in observing  that the  deceased might have enmity with  others but the question as to who had committed the murder  was to  be answered by the Court on the basis of the evidence adduced.      Coming now to the evidence on record, we find that both PWs 1  and 2  were the most probable witnesses, as they were accompanying the  deceased at  the material  time  and  that inspite of  a detailed  searching cross-examination  nothing could be  elicited by the defence to discredit or contradict them. Besides,  we find  the FIR that P.W. 1 promptly lodged within half  an hour  of the  incident,  fully  corroborates P.W.1. The  evidence of  the doctor (PW 4), who held autopsy and found  two gunshot  wounds on the person of the deceased also  corroborates   the  evidence  of  the  above  two  eye witnesses. We  are, therefore,  in agreement  with the  High Court that  the prosecution  succeeded in proving that owing to the  two shots  fired by the appellants Jitendra Nath met with his  death. The  High Court,  however, was  not legally justified in  convicting the  appellants under  Sections 148 and 149/302  IPC for  consequent upon the order of acquittal recorded by it in favour of Avdhesh, Section 148 and 149 IPC could not  have any  manner of  application -  it being  the positive  case   of  the  prosecution  that  only  the  five arraigned were the miscreants. Since, however, the manner in which the  incident took  place clearly  indicates that  the appellants shared  the common  intention of  committing  the murder of  Jitendra Nath  they are liable for conviction for the murder with the aid of Section 34 IPC.      On the conclusions as above we set aside the conviction and sentence  of the  appellants under  Section 148 IPC; and alter their  conviction under  Section 302/149 to 302/34 IPC but maintain  the sentence  of imprisonment for life imposed for the  former. With  the above modifications the appeal is dismissed.  The  appellants,  who  are  on  bail,  will  now surrender to their bail bonds to serve out the sentence.