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PETITIONER: STATE OF U.P

       Vs.

RESPONDENT: SMT. NOORIE @ NOOR JAHAN & ORS.

DATE OF JUDGMENT:       26/03/1996

BENCH: G.B. PATTANAIK (J) BENCH: G.B. PATTANAIK (J) MUKHERJEE M.K. (J)

CITATION:  JT 1996 (3)   570        1996 SCALE  (3)85

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T G.B PATTANAIK, J.      This appeal  by grant  of  special  leave  is  directed against the  order of  acquittal passed by the High Court of Allahabad, Lucknow Bench in Criminal Appeal No. 55 of 1978.      The four  respondents were  tried  for  offences  under Sections  147,  148,  302/149  and  201/511  I.P.C.  on  the allegation  that   they  along  with  some  unknown  persons mercilessly assaulted  deceased Bachan  Shah with knives and lathis and  lathis and  thereafter carried  a cycle  of  the deceased and  dragged the  dead body  of the deceased to the nearby grove and left it in a pit and escaped from the place of  occurrence.   The  learned   Additional  Sessions  Judge convicted 4  respondents under Section 147 and 302 read with Section 149  I.P.C. and  further convicted respondents Inder Dutt, Raghu  Raj and  Bikram under  Sections  148,  302  and 201/511 of the Indian Penal Code. Respondent Noori, however, was acquitted  of the  charge under  Section 201/511 against her. All  of them  were sentenced to life imprisonment under Section 302/149  and respondent  Noori was further sentenced to undergo  for one  year under  Section 147  and the rest 3 respondents were  sentenced under  Section 148 of the Indian Penal Code  and R.I.  for one  year under Section 201/511 of the Indian  Penal Code.  Sentences have been directed to run concurrently. The respondents then filed appeal and the High Court acquitted all of them for the charges levelled against them and hence this present appeal.      Prosecution case  in  nutshell  is  that  deceased  Ram Bharosey alias  Bachan Shah  had agone  to his  tubewell  at 10.30 A.M.  on  25.2.1975  for  getting  the  same  repaired through the  mechanic, Latta  Mallah P.W.  2. As  he did not come home  to take his lunch till 2.30 P.M. his nephew Iqbal Narain P.W.  1 went to call his uncle for food. When both of them were returning respondent Noori stopped the deceased on the way  and started  talking to  him. In  the meantime  the three other  respondents along with two unknown persons came

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armed with  knives and  lathis and  started  assaulting  the deceased.  While     the   deceased  was   being  assaulted, respondent Noori  was standing.  P.W.  2  who  followed  the deceased and  P.W. 1  soon reached  the  spot  and  saw  the occurrence. Noori  then left  the place of occurrence. Noori then left  the  place  of  occurrence.  Rest  of  the  three respondents  after   mercilessly  assaulting   the  deceased dragged the  dead body towards the grove and threw it into a pit, and  left the  place. The informant Iqbal Narain P.W. 1 prepared a  written report and lodged the same at Loni Katra Police Station  at 4.30  P.M. On  receipt of the said report which was  treated as  F.I.R. P.W. 7 registered the case and started investigation.  On reaching the place of occurrence, he held  the inquest and then sent another officer to search for the  accused persons  but the  accused persons  were not found. A  dog squad  was then  sent to  trace  out  the  two unknown persons  and the  said dog went upto the door of the accused Raghu  Raj which was found locked. The dead body was sent for  postmortem examination.  The investigating officer seized  incriminating   articles  and   sent  for   Chemical Examination.  Witnesses  were  examined  under  Section  161 Cr.P.C. Finally  on completion of investigation charge sheet was filed.  On being  committed the  respondents stood their trial. The  defence plea  is one  of denial. The prosecution examined 9  witnesses in  all of whom PWs 1, 2 and 3 are eye witnesses to  the occurrence.  PW. 6  is the  doctor who had conducted autopsy  over the dead body of the deceased. PW. 4 is a  witness to  the inquest  as well as witness to certain seizure made  in the  course of  investigation. PW. 5 is the constable who  carried the  dead  body  to  the  morgue  for postmortem examination.  PW. 7 is the police officer who had recorded the FIR and investigated into the offence. PW. 8 is a constable  and formal witness. PW. 9 is the Head Constable who had  made some  entries at the Police Station on receipt of the  written  report.  Prosecution  also  proved  several documentary evidence  of which Ext. 26 is the FIR, Ext. 9 is the postmortem report of the deceased, Ext. 40 is the Report of Chemical  Examiner and  Ext. 39 is the Serologist Report. The defence  also examined one witness as PW. 1. The learned Additional Sessions  Judge on  a  scruitiny  of  the  entire materials on  record come  to the conclusion, mostly relying upon the  evidence of  3 witnesses PWs. 1, 2 and 3, that the prosecution has  been able  to establish  the charges beyond reasonable doubt and accordingly convicted and sentenced the accused persons  as already stated. On appeal by the accused respondents the  High Court  though accepted the prosecution story that the deceased was murdered in the Galiayar and his body was  shifted to the pit where it was dumped but held it was not  established that the said murder had been witnessed by the  alleged  witnesses  namely  PWs.  1,  2  and  3  and therefore the  possibility that the deceased was murdered by others and  the appellants were implicated on mere suspicion and sentence passed by the learned Additional Sessions Judge and acquitted the accused respondents.      Mr. Pramod  Swarup, the  learned counsel  appearing for the appellant  contended that  the reasonings  given by  the High Court  in  discarding  the  prosecution  story  and  in disbelieving the  oral testimony  of PWs  1 to  3 are wholly unsustainable in law and consequently the order of acquittal is vitiated.  The learned  counsel also  contented that  the High Court wholly erred in law in discarding the prosecution case  on   the  basis   of  certain   infirmities   in   the investigation and  this has resulted in gross miscarriage of justice  by  ordering  acquittal  of  the  respondents.  The learned counsel  for the  appellant, however,  fairly stated

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that so far as respondent Noori is concerned on the basis of evidence on  record it  would be  difficult  to  assail  her acquittal made  by the High Court. Mr. Ranjit Kumar, learned counsel appearing  for the  respondents on  the  other  hand submitted that  in view  of the  proved animosities  of  the prosecution witnesses  and in  view of the gross infirmities in their  evidence, the  High Court  was fully  justified in discarding prosecution  case. According  to Mr. Ranjit Kumar though prosecution  case so  far as death of Ram Bharosay is concerned is  true but  the  prosecution  case  as  unfolded through the witnesses PWs 1 to 3 and the manner in which the death occurred  in not  true  and  therefore  the  order  of acquittal passed  by the High Court should not be interfered with by this Court.      In view  of the rival stand of the parties the question arises for consideration is whether the evidence of PWs 1 to 3 can be discarded on the grounds advanced by the High Court or not?  Before scrutinizing  the evidence  of  these  three witnesses it would be appropriate to examine the correctness of the  reasonings advanced  by the High Court in discarding the prosecution  case. But  before doing so we may first set out the  case against  respondent Noori.  The only  evidence against Noori  was that  while the  deceased and  PW. 1 were coming she  stopped them on the way and talked with deceased and at  that point  of time  other accused  persons came and assaulted the  deceased. There is not an iota of material on record to indicate any prior meeting of Noori with the other accused persons nor is there any material to implicate Noori in any  way with the occurrence. Noori has not been assigned any role in the assault of the deceased. In this view of the matter the  order of  acquittal of  respondent Noori  by the High Court cannot be interfered with by this Court.      The High  Court came to the concisions that PW. 2 could not have reached the place of occurrence simultaneously with PW. 1  and the  deceased since  he had to screw one bolt and lock the  tube-well which in the process would have taken at least five minutes. It is neither the evidence of PW. 1 that PW. 2  came with   them to the place of occurrence not is it the evidence  of PW.  2 that  he was along with the deceased and PW.  1. On  the other hand the evidence of PW. 2 is that after the  deceased and  PW. 1  left the  tube-well,  PW.  2 tightened the  bolt and  left for home and while he was at a distance of  100 paces from the place of occurrence he heard shouting of  PW. 1 and then he ran and on reaching the place of occurrence he saw that deceased had fallen down and there respondents, Inder Dutt, Vikram and Raghuraj were assaulting the deceased  with knives. The conclusion of the High Court, therefore, is based upon total misreading of the evidence of PWs  1   &  2   The  High   Court  has  commented  upon  the investigation as  to why  the fact  whether PW. 2 was at all engaged in  the repair  work of  the tube-well  had not been investigated into.  In our  considered opinion  it is wholly untenable  approach   and  had   no   relevance   with   the appreciation of  the evidence  PW.  2  The  High  Court  had commented upon  the evidence  of PW. 2 on the ground that at one place  he said  that he  was called by the investigation officer at  about the time of sun set whereas at other place he said  that he  was called by the investigating officer at night and  on this  score  the  High  Court  jumped  to  the conclusion that  PW. 2 cannot be accepted to be a witness to the occurrence.  We are  unable to  accept this reasoning of the High  Court. Instead  of focussing  its intention to the testimony  of   the  witness   with  regard  to  the  actual occurrence the  High Court has gone around the periphery and without even  discussing anything  so far  as occurrence  is

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concerned has  discarded  the  testimony  and  in  our  view erroneously. So  far as  PW. 3  is concerned  the High Court discarded his  testimony by  comparing his evidence with the evidence of PW. 2 and on coming to a conclusion the he could not have seen Noori clearly from the place of occurrence. As stated earlier  the very  approach  of  the  High  Court  in appreciating the  evidence has  been rather  faulty  and  no attention has  been bestowed by the High Court in discussing the basic prosecution case. The conclusion of the High Court that the  evidence of PW. 3 does not inspire confidence is a wrong conclusion  without discussing  his evidence  and  the said  conclusion   is  wholly   unsustainable  in   law.  On discussion of  medical evidence,  the High Court came to the conclusion that  the ocular version of the evidence does not receive complete  support and corroboration from the medical evidence. But  we are  unable to  sustain this conclusion of the High  Court also.  The Doctor  PW. 6  who conducted  the postmortem examination  found as many as 9 punctured wounds, 3 incised wounds, one lacerated wound and three abrasions on different parts  of the body of the deceased. The High Court accepted the  prosecution case that the punctured wounds and incised wounds  could be  caused by  a knive  but since  the lacerated wound  which was  found between right index finger and thumb  measuring 3  cm x  2 cm  could not be caused by a knive, the  High Court  jumped to  the conclusion  that  the medical evidence  does not corroborate the ocular statement. We find  it difficult to sustain this conclusion. Commenting upon the  investigation the  High Court  observed that it is not free  from taint. The aforesaid conclusion is based upon the fact  as to why the dog was given a smell of the bicycle of the  deceased instead  of the  piece of  Dhoti which  had allegedly  got  stuck  to  a  tree.  The  further  reasoning advanced is  as to  what was  the necessity  of dragging the deceased and  throwing the  dead body into a pit. Then again the High Court observed that the bicycle of the deceased had been touched  by Noori  alone apart  from  deceased then how the dog  after smelling  the bicycle  proceeded towards  the house of  Raghuraj. In  our considered  opinion the  alleged infirmities found  out by the High Court neither can be held to be  sufficient to  hold the  investigation to be  tainted nor  can   it  be   taken  into  account  to  discredit  the persecution case.      The High  Court having acquitted the accused persons on appreciation of  the evidence, we have ourselves scrutinised the evidence  of  PWs.  1,  2,  and  3.  The  conclusion  is irresistible that  their evidence  on  material  particulars have been brushed aside by the High Court by entering in the realm of  conjecture and  fanciful speculation  without even discussing  the  evidence  more  particularly  the  evidence relating to  the basic prosecution case. While assessing and evaluating the  evidence of  eye witnesses  the  court  must adhere to two principles, namely whether in the circumstance of the  case it  was possible  for the  eye  witness  to  be present  at   the  scene   and  whether  there  is  anything inherently improbable  or unreliable.  The High Court in our opinion has  failed to  observe the aforesaid principles and in fact  has mis-appreciated  the evidence  which has caused gross miscarriage  of justice.  Credibility of a witness has to be  decided by  referring to his evidence and finding out how he has freed in cross-examination and what impression is created by his evidence taken in one context of the case and not by entering into realm of conjecture and speculation. On scruitinising the  evidence of  PWs. 1, 2 and 3 we find they are consistent  with one  another so  far as  the  place  of occurrence, the  manner of  assault, the  weapon of  assault

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used by  the accused  persons, the  fact of  dragging of the dead body  of the  deceased from  the place to the grove and nothing has  been brought  out in their cross-examination to impeach their  testimony. The medical evidence. In that view of the  matter we unhesitatingly come to the conclusion that the prosecution  has  been  able  to  establish  the  charge against the  accused persons  and the  High Court  committed error in acquitting the three respondents namely Inder Dutt, Raghu Raj and Bikram. In the aforesaid premises the order of acquittal passed  by the  High Court  so far  as  respondent Noori is  concerned is  confirmed but the order of acquittal so far  as accused  Inder  Dut,  Raghu  Raj  and  Bikram  is concerned is  set aside  and their  conviction and sentences passed  by   the  learned   Additional  Sessions  Judge  are confirmed. The  appeal is allowed in part. Respondents Inder Dutt, Raghu  Raj and  Bikram are  directed to  surrender  to serve the balance period of sentence. Their bail ponds stand cancelled.