REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1254 OF 2005

Rajendra & Anr. … Appellants

Versus

State of Uttar Pradesh … Respondent

J U D G M E N T

S.B. Sinha, J.

1. The  sole  surviving  appellant,  Rajendra  (Narpat,  Appellant  No.2

having died during the pendency of this appeal) is before us aggrieved by

and dissatisfied with a judgment and order dated 23.9.2004 passed by the

Division Bench of the High Court of Judicature at Allahabad in Criminal

Appeal No.181 of 1982 affirming a judgment of conviction and sentence

dated 20.1.1982 passed by the Vth Additional Sessions Judge, Ghaziabad in

Sessions Trial No.183 of 1981 under Section 302 read with Section 34 of

the Indian Penal Code and sentenced him to suffer rigorous imprisonment

for life.

2. The  prosecution  case,  as  disclosed  in  the  first  information  report

lodged  with  the  Dadari  Police  Station  by  Phoolwati  (PW1),  wife  of  the

deceased Ratiram on 27.5.1981 is as under:

Ratiram was a  Goldsmith.   He received  some ornaments  from the

appellant.  However, he did not return the same.  He had been assaulted a

couple of times by the appellants.  He left the village for Kanpur.  He has

two  sons,  Govinda  and  Jahangir  Ram.   Govinda  also  went  outside  the

village in ‘pursuit of his new field of engagement’.   

Appellants are stated to have visited the house of the deceased and

made enquiries in regard to his whereabouts from Phoolwati (PW1).  Eight

days  prior  to  the  incident,  Govinda  had  returned  home.   Phoolwati  was

again asked as to when the deceased would return to the village.  She asked

for an assurance that he would not be assaulted.  Richhpal who was Pradhan

of  the  village  (since  acquitted)  allegedly  gave  her  such  an  assurance.

Govinda thereafter went to Kanpur to ask the deceased to come back to the

village.  He reached his village at about 6.00 am in the morning.  At about 7

–  7.30  am,  the  accused  allegedly  came  with  Ratiram.   Return  of  the

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ornaments was demanded to which the deceased replied that he would repay

the debt in due course.  He was assaulted.  One of them put his hand around

his neck.  He was bodily lifted.  While he was being carried, he clutched to

the door frame which also came out.  He was thereafter said to have thrown

in a nearby well.  He died of asphyxia.   

3. Phoolwati went to the Police Station which was about three furlongs

away from the village.   A First  Information Report  (FIR) was lodged at

about  7.50  am.   In  the  said  FIR,  presence  of  Munna  (PW1),  Surajbhan

(PW3) and Jahangir Ram (PW4), minor son of the deceased was disclosed.

The Investigating Officer came to the village.  The dead body was taken out

of the well at about 10.00 am and was sent for post mortem.  In the post

mortem, the  cause  of  action  for  death  was  stated  to  be  asphyxia  due  to

drowning.  No injury on the person of the deceased was, however, noticed.  

4. Although in the FIR, the assailants of the deceased were said to be

Narpat, Rajendra and Richhpal  (Pradhan of the village); Phoolwati (PW1)

as also Jahangir Ram (PW4) in their depositions stated that Richhpal did not

participate  in  the  commission  of  the  crime  and  according  to  them,  an

unknown  person  had  come  with  Narpat  and  Rajendra.   In  view  of  the

aforementioned statement by PW1, she was declared hostile.  Munna (PW2)

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and  Surajbnan  (PW3)  also  did  not  support  the  prosecution  case  in  its

entirety.   PW4,  the  minor  son  of  the  deceased,  however,  supported  the

prosecution case.   

5. The learned Sessions  Judge acquitted  Richhpal,  accused No.1,  and

recorded  a  judgment  of  conviction  against  Narpat  and  Rajendra  and

sentenced them to undergo rigorous imprisonment for life.  An appeal was

preferred thereagainst. On the date of hearing, i.e. 30.4.2007, however, the

appellants were not represented.  It was again listed on 17.8.2004.  As even

on that day, nobody appeared on behalf of the appellants, the High Court

took up the hearing of the matter and heard the learned counsel for the State.

The judgment of conviction and sentence passed by the learned Trial Judge

was affirmed.   

6. Mr. Sushil Kumar, learned senior counsel appearing on behalf of the

appellant, would submit:

1) PW1,  Phoolwati,  PW2,  Munna  and  PW3,  Surajbhan,  having  been

declared  hostile  and  PW4,  the  minor  son  of  the  deceased  having

stated that he had deposed as tutored by his mother, the judgment of

conviction and sentence cannot be sustained.

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2) The  prosecution  case  have  not  been  corroborated  by  the  medical

evidence, as the autopsy surgeon did not find any injury on the person

of  the  deceased  nor  any sign  of  throttling,  appellant  is  entitled  to

grant of benefit of doubt..

3) As PW1 had not made any allegation against Richhpal, her evidence

cannot  be  said  to  be  wholly  reliable  for  the  purpose  of  passing  a

judgment of conviction.  

4) It is unlikely that a person having been assaulted for a period of half

an hour and having been dragged would not suffer any injury on his

person.

7. Mr. R.K. Gupta, learned counsel appearing on behalf of the State, on

the other hand, supported the impugned judgment.

8. A  case  of  this  nature,  in  our  opinion,  should  be  given  a  holistic

approach.  The deceased and his elder son had to go out of the village to

earn their  livelihood.   The deceased,  as  is  evident  from the  materials  on

record, had to leave the village as he had been assaulted by the appellants on

a number of occasions.  Richhpal was the Pradhan of the village.  When he,

along  with  appellants,  asked PW1 to  see  that  the deceased  should  come

back, she wanted an assurance that he would not be assaulted.  Only when

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such  an  assurance  was  given,  the  elder  son  Govinda  was  sent  with  a

message and the deceased came back to the village from Kanpur.  Almost

immediately after the deceased had arrived at his house, three persons came

and demanded return of the jewellery.  When he pleaded his inability to do

so, he was assaulted.   

It is true that no injury was found on his person but it must be borne

in mind that he was assaulted with fists and kicks.  Although PW1, in the

FIR, stated  about  throttling,  evidently,  neck  was  not  pressed  to  such  an

extent  which  would  leave  a  mark  of  an  injury.   Both  PW1  and  PW4

categorically stated that somebody had caught him by the neck and others

caught his feet and he was taken near the well and was dropped.   

The  FIR was  lodged  almost  immediately  after  the  occurrence  had

taken  place.   PW1  ran  to  the  Police  Station.   Although  in  her  cross-

examination, Phoolwati, inter alia, stated that a report from her was taken

after  the  post  mortem  examination,  the  Investigating  Officer  was  not

confronted with any question as regards timing of the lodging of the FIR.  In

any event, the fact that some report had been lodged which prompted the

Investigating  Officer  to  register  a  case  so  as  to  enable  him to  start  the

investigation is not in dispute.   

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In fact, Mr. Sushil Kumar drew our attention to the statement of PW8,

Constable Brahmapal Singh, who alleged that the he had gone to the village

at about 7.00 – 8.00 in the morning whereafter the dead body was taken out

as also the statement of the Investigating Officer, Shri Ramvir Singh (PW6)

who  had  stated  that  the  dead  body  was  taken  out  at  about  10.00  am.

Indisputably, therefore, prior thereto the FIR had been lodged.  Indisputably

again, the inquest report was prepared at 10.00 am.   

9. It may not be correct to contend that the dead body was taken out in

between 7.00 and 8.00 am.  What was stated by PW8 was that he visited the

village in between 7.00 to 8.00 am.

It  is  evidently  a mistake as  inquest  report  was  prepared  at  10  am.

After  the  FIR  was  recorded,  the  Investigating  Officer  had  come  to  the

village.  It is, therefore, wholly unlikely that dead body could be taken out

in between 7.00 and 8.00 am.  We are not pointing this out only to show that

the FIR must have been lodged immediately after the occurrence took place

and, thus, there was hardly any possibility on the part of PW1, who was a

simple and rustic villager, to implicate the appellant herein falsely.   

10. The well was situated within a distance of about 10 ft. from the house

of the deceased.   The house must have been made of bricks and mud as

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when  PW1 brought  the  fact  of  uprooting  the  door  to  the  notice  of  the

Investigating Officer, he advised her to fix the same with mud.   

11. PW4 was an eye-witness.  He supported the prosecution case in its

entirety.   According  to  him, when  the  accused persons  tried  to  drag  his

father after beating him, he, his mother and grand-mother came forward to

protect  him but  they  were  pushed  away.   He,  in  his  cross-examination,

categorically stated that as he had started weeping, he did not know for how

much time the assault continued.  Her presence at the place of occurrence

cannot be doubted.

12. So far as the criticism as regards his deposition by Mr. Sushil Kumar

that  he  was  a  tutored  witness  is  concerned,  we  may notice  the  relevant

statement bade by him before the learned trial judge :

“I  had  told  Darogaji  that  “Richhpal,  Narpat  and Rajendra  had  dropped  my father  in  the  well  by holding  him  by  his  feet”.   It  was  told  by  my mother that Richhpal was not present there and on her saying I had made such statement.”

We may notice that in his examination-in-chief, he stated that Narpat

and Rajendra, who were present in Court, along with one person more, who

came to  his  house  to  enquire  about  his  father  Ratiram.   It  was  only  in

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relation to the said question, namely the presence and/or active participation

of Richhpal, he made the above statement.  It, therefore, cannot be said that

he was a tutored witness.

What  might  have  been  tutored  to  him by his  mother  was  that  he

should  not  implicate  Richhpal.   Richhpal,  we have  noticed  hereinbefore,

was the Pradhan of the village.  It is not wholly unlikely that PW1 had been

put to some pressure by him as a result whereof she not only did not support

her  statement  in  the  FIR  that  Richhpal  had  also  participated  in  the

commission of crime but have asked her son also to tread the same path.

13. We may also notice that PW1 in her evidence stated that she rushed

towards the Police Station alone, in the following terms :

“I rushed towards the Police Station alone.  I do not know in how much time I reach at P.S.  My report  was  recorded  at  the  Police  Station  in  the evening when the dead body of my husband was brought to the Police Station after pulling out.  At this  stage,  the  witness  burst  into  tears,  started crying out and virtually collapsed.  She is not in a fit  state  of  mind  and  so  the  statement  of  the witness deferred.  Put up after some time.”

She, thus, became emotional.  Her state of mind at the time of cross-

examination can very well be imagined.   

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14. It is now well settled that in India, the principle falsus in uno, falsus

in omnibus has no application.  Thus, only because she deviated from her

statement made in the FIR in respect of Richhpal, her evidence cannot be

held to be totally unreliable.   

It is,  therefore, not possible for us to accept the submission of Mr.

Sushil Kumar that on these grounds alone, we should reject the testimonies

of  PW1 and PW4.  It  is  trite  that  a  judgment  of  conviction  can  also  be

recorded on the basis of the statement made before the Court by a solitary

witness.   Indisputably,  for  the  said  purpose,  witness  must  be  held  to  be

trustworthy.   The Court  may, for  the  said  purpose  in  given cases,  make

endeavours to find out corroboration in material particulars.   

15. The  medical  evidence  corroborates  the  prosecution  case.   The

circumference of well was about three meters.  Dr. Sarvesh Bihari Mathur

(PW7), the autopsy surgeon, found the eyes of the deceased half open and

the nails of hand and feet bluish.  He further found Kuti Sansaria which is

goose-skin/goose-flesh  in  the  foot-base (Talwa).   Small  particles  of  sand

were found in the wind pipe.  Lungs were found to have air bubbles.  There

existed blood on the left hand side of the heart and the right side was found

to be empty.  According to him, the death took place 12 hours before the

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post mortem examination.  The cause of death, in his opinion, was due to

drowning which caused asphyxia.  In his cross-examination, he stated that it

might be possible that the deceased had committed suicide.  But that was

only a possibility.  If the evidence of the eye-witnesses is to be believed and

found to be reliable and we do not find any reason as to why they should not

be so held, only because autopsy surgeon talked of some other possibility,

as it  would not  lead to the  conclusion  that  the medical  evidence did  not

corroborate the prosecution case.   

16. Apart  from  the  statements  made  by  PW1  and  PW4  which  are

sufficient to bring home the charges as against the appellant herein, we may

also notice that although PW3 was declared hostile, he also, to some extent,

supported  the  prosecution  case.   Indisputably,  the  said  witness  had  gone

back from his statement made before the Investigating Officer under Section

161  of  the  Code  of  Criminal  Procedure.   In  his  deposition,  however,

Surajbhan  stated  that  he  had  seen  a  crowd  and  had  also  witnessed  that

Ratiram was being taken out of the well.  Although according to him he had

not seen Narpat, Rajendra and Richhpal dropping Ratiram into the well, in

his cross-examination he stated as under :

“On  the  place  of  incidence  large  crowd  was assembled and some of them were speaking that

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Narpat  and  Rajendra  had  thrown  Ratiram  into well.  I don’t know the names of those persons so I cannot tell about them.”

17. Thus, the fact that immediately after the death a crowd had assembled

and people were talking about the death having been caused to the deceased

by Narpat  and Rajendra,  to  some extent,  supported  the  prosecution  case.

Both, Munna and Surajbhan were named as witnesses in the FIR.  Although

they  were  declared  hostile,  a  part  of  their  statement  can  be  taken  into

consideration for the purpose of finding out as to whether the appellants are

guilty of commission of the said offences or not.  It is a well settled law that

the evidence of a hostile witness may not be totally rejected, and subject to

closure  scrutiny,  a  portion  thereof  which  is  consistent  with  the  case  of

prosecution  or  defence,  may be accepted.   {see  State  of  U.P. v.  Ramesh

Prasad & Anr. [AIR 1996 SC 2766]}.

18. We  have  been  taken  through  the  entire  materials  on  record  and

addressed at length by Mr. Sushil Kumar.  We place on record that although

the accused were not  represented  before the High Court  by an advocate.

Mr. Sushil Kumar very fairly took the stand that this Court should dispose

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of the entire appeal and need not remit the matter to the High Court for its

consideration afresh.

19. For the reasons aforementioned there is no merit in the appeal.  It is

dismissed accordingly.

20. As Narpat, Appellant No.2, has expired, appeal stands abated so far

as he is concerned.

……………………………….J. [S.B. Sinha]

..…………………………..…J. [Dr. Mukundakam Sharma]

……………………………….J. [R.M. Lodha]

New Delhi; April 8, 2009

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