State of U.P. Vs. Hari Ram & Ors
[1983] INSC 117 (7 September 1983)
FAZALALI, SYED MURTAZA FAZALALI, SYED MURTAZA
THAKKAR, M.P. (J)
CITATION: 1983 AIR 1081 1983 SCR (3) 885 1983
SCC (4) 453 1983 SCALE (2)268
ACT:
Criminal Proceedings - F.I.R. is not supposed
to contain minute details.
Evidence of interested witness-Manner in
which it should be dealt with.
HEADNOTE:
The respondents were convicted and sentenced
under 8.
302 read with s. 34 I.P.C. for having caused
the death of one Rajinder Kumar by assaulting him with knives and ballams
(spears). The F.I.R. was lodged within an hour of the occurrence and the
Investigating officer reached the spot within three hours of the lodging of the
F.I.R. and immediately thereafter examined, among others, PWs 1 and 2 who were
eye witnesses to the occurrence. According to the post-mortem report the
deceased had sustained one stab wound, one incised wound, two lacerated wounds
and two abrasions. The central evidence against the respondents consisted of
the statements of PWs 1, 2 and 3 which was accepted by the trial court.
The respondents preferred an appeal to the
High Court which acquitted them inter alia on the ground that there was
inconsistency between medical and ocular evidence inasmuch as the respondents
who were alleged to have been armed with sharp cutting weapons like knives and
ballams could not have caused the lacerated wounds and abrasions; that the
explanation given by PWs 1,2 and 3 in their statements that the lacerated
wounds and abrasions had been caused by the deceased having been struck by the
lathi portion of the ballams was an afterthought since there was no mention in
the F.I.R. of the fact that ballams had been used like lathis; that the
evidence of witnesses PWs 1 and 3 could not be relied upon as they were
interested witnesses; and that the circular, stance that PW 2 was called from
the house of his uncle three hours after the occurrence indicated that he was
not present at the scene of the crime and therefore his evidence also could not
be relied upon.
Allowing the appeal,
HELD: 1. An F.I.R. is not supposed to contain
minute details of an incident; it is merely meant to narrate in brief the facts
which led to the incident, viz., the place of occurrence, the names of
assailants, etc. [891 C-D] In the instant case the High Court was not justified
in coming to the conclusion that the statements of eye witnesses regarding the
deceased having 886 been assaulted with the lathi portions of the ballams was
an afterthought just because there was no mention in the F.I.R.
Of the fact that ballams had been used like
lathis. There was no occasion for the complainant to have mentioned such
detailed facts as to how the various arms were wielded and in what manner and
to what extent. The witnesses had clearly explained in their statements that
the accused had plied and struck the deceased with the lathi portions of the
ballams on the front side and this was fully corroborated by the medical
evidence which showed that the two lacerated wounds were on the right side of
the front portion of the head.
Thus far from being inconsistent the ocular
evidence fully corroborated the medical evidence. It can safely be presumed
that the copies of statements recorded by the Investigating officer had been
supplied to the respondents long before the trial started. If there was any
omission in their statements regarding the fact that ballams were used as
lathis, it is inconceivable that the defence would not have drawn the attention
of the witnesses to this omission which would have disclosed a manifest defect
in the prosecution evidence.
Further, the Investigating officer had
categorically denied the suggestion that the statements of witnesses had been
recorded after the receipt of the post-mortem report. [891 H, 892 A, 890 F-H,
891 A-B]
2. The mere fact that witnesses are
interested is. no ground for throwing out their evidence overboard. All that is
necessary is that in such cases, the evidence of the witnesses should be
examined with caution and, having done that, if the court feels that the
evidence does not suffer from any other legal or factual infirmity, there is no
reason to distrust the evidence of such a witness. The evidence of an
interested witness is not like the evidence of an approver which would need
corroboration and the rule of caution cannot be confirmed in a straitjacket.
[894 F-G] In the instant case the High Court rejected the evidence of PWs 1 and
3 on the sole ground that they were interested and did not enter into the
intrinsic merits of their evidence. [889 E] The High Court was also not
justified in rejecting the evidence of PW 2 who was an independent witness. lt
is not disputed that PW 2 used to remain at his fodder shop and sleep there and
he was therefore the most competent witness to see the occurrence. There is no
inherent improbability in the statement of PW 2 that, being terrified by the
incident, he had gone to the house of his uncle from where he was called by the
Investigating officer. The circumstances that he was called from the house of his
uncle three hours after the occurrence and was not found to be present at his
shop cannot lead to the conclusion that he could not be present there at the
time of the occurrence. [893 H, 894 A-E]
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 450 of 1977.
From the judgment and order dated the 23rd
September, 1976 of the Allahabad High Court in Criminal Appeal No. 166 of 1972.
887 Gopal Subramaniam, Dalveer Bhandari and
R. S. Yadav for the Appellant.
R. K. Garg and V. J. Francis for the Respondents.
The Judgment of the Court was delivered by
FAZAL ALI, J. This appeal by special leave is directed against a judgment dated
September 23, 1976 of the Allahabad High Court acquitting the respondents of
the charges framed against them after setting aside the judgment of the
Sessions Judge who had convicted them under s. 302 read with s. 34 of the
Indian Penal Code and sentenced them to imprisonment for life.
The facts of the case have been detailed and
fully narrated by the High Court and the Sessions Judge and it is not necessary
for us to repeat the same all over again.
Suffice it to say that the occurrence is
alleged to have taken place on the 29th of May 1969 near the office of Cane
society in Mohalla Chohanan of Jwalapur town situated within the District of
Saharanpur. The deceased (Rajinder Kumar) and the respondents were closely
related and there appears to have been some sort of a chronic dispute between
them which culminated in the said occurrence on May 29, 1969. In the morning of
May 29, 1969 Rajinder Kumar scolded the respondent Hari Ram and his brother
Atma Ram for having misbehaved with his father and thereafter a short
altercation took place in the course of which Hari Ram and Atma Ram threatened
to kill him (Rajinder Kumar). According to the prosecution, on the same night
at about 10.30 p.m.
while the deceased was proceeding from his
house to his Gher and was negotiating the road at a point very close the office
of the Cane Society he was confronted by the four respondents, viz, Hari Ram,
Satyapal, Naqli and Surendra.
Naqli and Surendra were armed with knives
with spears. On seeing the deceased, Hari Ram exhorted and incited his
companions to kill the deceased as a result of which all the four respondents
assaulted the deceased with their respective weapons. According to the
prosecution, Naqli and Surendra struck the deceased with their knives while
Hari Ram and Satyapal assaulted him with the Lathi portion of the spears.
Thereafter, the respondents fled eastward towards the tiraha. PW 1 (Rattan
Singh), PW 2 (Suresh) and PW 3 (Harish) were attracted to the scene of the
crime and witnessed the same.
888 It was further alleged by the prosecution
that at the time of the incident apart from the burning of the street light it
was a moonlight night also and there could be no difficulty in identifying the
assailants. Even so, the assailants. and the deceased were fully known to each
other and even if there was no street light they could have been easily
identified in the moonlight. Even the defence has not been able to show that
the date of occurrence was a dark night nor was this fact questioned before any
of the courts.
As a result of the injuries received by the
deceased he fell down on the spot and died soon after PW 1 arranged a rehri and
brought it to the place of occurrence in order to take the deceased to the
hospital. The female folk of the house of Sardar Singh and other neighbours
also arrived and surrounded the dead body and everybody was weeping and crying.
Harish Chand (PW 3) drew up a report (Ex. Ka-l) of the occurrence at the scene
of the crime with the help of electric light on the street and proceeded to the
police- station alongwith Ratan Singh (PW 1) and others where the dead-body was
placed in the custody of the police and the written report was lodged at about
11.15 p.m. After completing the usual formalities, the investigating officer,
M. P. Wats (PW 13), drew up the farde beyan which was treated as the F.I.R. An
endorsement on the FIR shows that it was despatched to the Magistrate sometime
in the midnight after 12 O'clock. This fact is important because much has been
made by the respondents regarding the ante- timing of the FIR by the police.
The investigating officer after taking down the FIR proceeded to the spot where
he reached at about 2.30 a. m and immediately examined the witnesses Surat
Singh (not examined in court), Ratan Singh (PW 1) and Suresh (PW 2). He also
summoned some persons from the locality and interrogated some people of the
mohalla. It was also alleged by PW 13 that on making enquiries from the
accused-respondents, Naqli made a statement which led to the recovery of knife
from inside his house which was found concealed in the folds of certain clothes
kept in a tin box.
As none of the courts below have relied on
the evidence of recovery we would leave the matter here.
The case of the defence was that the deceased
was murdered by some unknown persons and the respondents were falsely
implicated because of the previous enmity. The trial court after a very careful
consideration and meticulous discussion of the evidence on record found that
the prosecution case was proved beyond reasonable doubt and accordingly
convicted the respondents under s. 302 read with s, 34, I.P.C. and sentenced
them to imprisonment for life, as stated 889 above. The respondents then
preferred an appeal to the High Court which acquitted them and hence this
appeal by the State of U. P. in this Court. As the matter lies within a very
narrow compass and small spectrum it is not necessary for us to delve into
further details of the case.
The central evidence against the respondents
consists of the statements of PWs 1, 2 and 3 who proved the occurrence and
their evidence was accepted by the trial court but the High Court refused to
rely on them. It may be mentioned that out of the eye-witnesses, PW 1 was not
only an independent witness but as would appear from his evidence he was also a
class fellow of one of the respondents, Surendra. In this connection he stated
thus "Accused Surendra and myself have read in one and the same school. We
both were neighbours also.
We had good relationships".
The other two witnesses were no doubt
interested to a large extent and the High Court seems to have rejected their
evidence on this ground alone without entering into the intrinsic merits of
their evidence. A careful perusal of the judgment of the High Court shows that
so far as PW 2 is concerned, no good reason has been given as to why he should
be disbelieved nor has the High Court displaced any of the reasons or
circumstances relied upon by the trial court in placing implicit reliance on
the evidence of PW 2. It may also be mentioned that PW 2 was one of the persons
who was examined by the Investigating officer (PW 13) at the spot at about 2.30
a.m. and therefore in our opinion, there should have been very strong reasons
to disbelieve the evidence of such a witness by the High Court.
This being an appeal against order of
acquittal passed by the High Court, we have very carefully gone through the
judgments of the High Court, that of the trial court and also the evidence of
the three eye-witnesses, including PW
2. It seems to us that the High Court
realizing that PW 2 was an independent witness, brushed aside his evidence on
grounds which are wholly untenable in law. The cornerstone and sheet-anchor of
the High Court's judgment seems to be two circumstances on which the entire
prosecution case has been rejected- 890 (1) that the ocular evidence adduced in
court by the prosecution was wholly inconsistent with the medical evidence, and
(2) that the FIR seems to have been lodged sometime in the early hours of the
morning of 30th May 1969 and not at 11.15 p.m. On 29.5.69, as alleged by the
prosecution, and, therefore, there was sufficient time for the prosecution to
bolster up a case against the respondents in view of the previous enmity.
There are some other reasons given by the
High Court to which we shall refer hereafter.
Coming to the first circumstance relied upon
by the High Court about the inconsistency between the ocular and the medical
evidence, we are clearly of the opinion that the High Court has committed a
serious and grave error of law by misreading the evidence of the eye-witnesses
on this question. According to Dr S. S. Anand, (PW 14), who conducted
post-mortem examination on the dead body of the deceased, the deceased had
sustained one stab wound and one incised wound besides two lacerated wounds and
two abrasions. The fundamental reasons given by the High Court was that as all
the respondents, according to the prosecution, were armed with sharp cutting
weapons like spears, the lacerated wounds or the abrasions could not have been
caused by the said weapons and therefore there was a serious inconsistency
between the medical and the ocular evidence which by itself amounted to a
manifest defect in the prosecution case, resulting in its rejection. It is true
that according to the evidence of the eye-witnesses the respondents Naqli and
Surendra were armed with knives while Hari Ram and Satyapal were armed with
ballams (spears). The witnesses had clearly explained in their statements that
the accused, who were armed with ballams, plied or struck the deceased by the
lathi portion of the spears on the front side. This is fully corroborated by
the medical evidence which shows that the two lacerated wounds were on the
right side of the front portion of the head. Thus, far from being inconsistent,
the ocular evidence fully corroborates the medical evidence. The High Court,
however, seems to have made a mountain of a mole hill by concluding that as
there was no mention in the FIR of the fact that ballams were used like lathis,
the explanation given by the witnesses in the court that ballams were used like
lathis or that the deceased was struck by the 891 lathi portion of the ballams
appears to be an afterthought.
The High Court seems to suggest that the
story of ballams having been plied like lathis was introduced for the first
time after the medical report was given in order to give an explanation for the
apparent inconsistency between the ocular and the medical evidence. We are,
however, unable to agree with this somewhat broad and speculative process of
reasoning, particularly when PW 13 categorically denied the suggestion made to
him by the defence counsel that the statements of the witnesses were recorded
in the morning after receipt of the postmortem report (vide p. 40 of the paper
book). It is common ground that the FIR does not contain full or meticulous
details of the incident but is merely meant to narrate the brief facts which
led to the incident, viz., names of the assailants and the place of occurrence,
etc. Therefore, there was no occasion for the complaint to have mentioned such
detailed facts as to how the various arms were wielded, in what manner and to
what extent. A FlR is not supposed to contain such minute details. Moreover, we
find that the FIR in the instant case was filed at about 11.55 p. m. and
according to the sole testimony of PW 13, the Investigating officer, he reached
the spot r 2 30 a.m., i. e, within 3 hours of the lodging of the FIR, and
recorded the statement of the eye-witnesses. It can be safely presumed that
copies of the statements recorded by PW 13 had been supplied to the
respondents, as required by the provisions of the Code of Criminal Procedure,
long before the trial started. If there was any omission in their statements
regarding the fact that ballams were used as lathis, it is inconceivable that
the defence would not have drawn attention of the witness to this omission
which would have disclosed a manifest defect in the prosecution evidence. PWs 1
and 3 have categorically stated in their evidence that ballams were used as
lathis and they were not sought to be contradicted of the omission of this fact
in their statements before the police. Had the witnesses omitted to state this
fact in their earlier statements before the police, their attention must have
been drawn to the said material omission when they appeared as witnesses in
court and to the Investigating officer (PW 13) when he was examined in court.
In the absence of this important circumstance the High Court was wholly
unjustified in making a capital out of the alleged ommission which was not
there at all. This non-existent omission seems to be the very fabric and foundation
for the reasoning of the High Court in rejecting the prosecution case.
In view of these circumstances, the High
Court was not at all justified in jumping to the conclusion that the statements
of the eye- 892 witnesses regarding the deceased having been assaulted by the
lathi portion of the spears was an afterthought. The following observations of
the High Court, with due respect, amount to an imputation against the witnesses
and inflicting an 'unkind cut indeed' on the testimony of Satyapal and Hari
Ram:
"His evidence is in conflict with the
medical evidence, as it is clear from the post-mortem report that two lacerated
wounds were found on the body of the deceased, which goes to show that the
deceased was also assaulted by a blunt weapon like a lathi." Thus if this
circumstance disappears then the very edifice on which the reasoning of the
High Court is based so far as the point relating to inconsistency between the
ocular and medical evidence is concerned stands completely demolished.
Another important reason given by the High
Court is that the FIR seems to have been ante-timed and very great stress was
laid on the fact that the recitals in the FIR;
clearly show that the morning incident had
taken place a day before the Report was lodged at the police station which
means that if the occurrence had taken place a day earlier the report was
lodged the next day. On a specific question put to PW 1 he clearly explained
that he used the word 'yesterday' because at that time he was in great shock
and distress following the heinous crime committed on the deceased who was his
close relation. Furthermore, it is common knowledge that villagers don't have a
mathematical idea of the actual time when midnight begins or ends. As the
occurrence resulting in exchange of hot words had taken place on the morning of
29th May 1969 and the FIR was lodged near about the midnight, the informant
could have reasonably thought that in view of the nightfall the next day had
arrived though from the mathematical or astronomical point of view this may be
quite correct. What difference would it make if the FIR was lodged at 11.15
p.m. Or 12.00 O'clock or past 12 a. m. If the FIR was lodged immediately after
12 o'clock in the midnight then the description of the word 'yesterday' would
be quite correct.
In these circumstances, we are satisfied that
not much can be made even of this so called infirmity and from this we cannot
jump to the conclusion that the occurrence took place on the morning of 30th
May and not on the night of 29th May. Moreover, the evidence 893 of the
Investigating officer and other eye-witnesses clearly discloses that PW 13
(I.O.) arrived at the spot near about 2.30 a. m. and took the statements of
eye-witnesses and interrogated lot of other persons. This, therefore,
completely excludes the possibility that the occurrence took place sometime in
the morning of 30th May. In these circumstances, therefore, assuming that there
may be some infirmity, it appears to be of a very trivial nature and not
sufficient to lead to conclusion that the FIR was ante- timed.
Another important error into which the High
Court seems to have fallen is to reject the evidence of the only important
independent witness, Suresh (PW 2), without examining his evidence on intrinsic
merits and giving good reasons for doing so. All that the High Court had to say
regarding PW 2 may be extracted thus:- "He also corroborated the statement
of Harish Chand (PW 3) regarding the incident. His evidence is also in conflict
with the medical evidence. He stated that after the incident, he became afraid
and went to the house of his uncle and was called from there by the
Investigating officer at 2 a m.
The explanation furnished by him for going to
the house of his uncle after the incident cannot be accepted as it appears to
be highly unnatural. If he was present at his fodder shop at the time of the
incident he should have been there when the Investigating officer to the place
of occurrence.
The fact that he was called from the house of
his uncle by the Investigating officer at 2 a. m. On 30.5.69 indicates that he
was not present at his fodder shop at the time of the incident. It was admitted
by him that Chhajja of Phul Singh, the uncle of Surender, appellant, was broken
by the collusion of his truck and the driver of his truck paid the compensation
for the damages caused to the Chhajja to Phul Singh. He also admitted that the
deceased was his class-fellow." If we examine the reasons given by the
High Court we find that the reasons given are wholly unsustainable in law.
As already indicated, the first reason that
the ocular evidence was in conflict with the medical evidence no longer
survives. Secondly, the fact that being terrified by the incident PW 2 went to
the house of his uncle from where he was called by the Investigating officer
does not show 894 that his evidence was false and we do not see any inherent
improbability in the statement of PW 2. It is not disputed that the Witness
used to remain at his fodder shop and sleep there. He would, therefore, be the
most competent witness to see the occurrence. The circumstance that he was
called from the house of his uncle three hours after the occurrence and was not
found to be present at his shop cannot lead to the conclusion that he could not
be present at the time of the occurrence. This reasoning is based purely on
conjectures and the High Court seems to have overlooked the psychology of the
witness who terrified by a murder taking place in front of his eyes thought it
expedient to go to his uncle's house.
The last reason given by the High Court in
rejecting the evidence of PW 2 is that the deceased was his classfellow and therefore
he could not be said to be a disinterested witness. We are unable to agree with
this line of reasoning because merely being a class-fellow, he could not be
stamped as an interested witness. Even so, the High Court seems to have
overlooked the fact that the witness clearly stated at page 16 of the Paper book
that he was also a class fellow of one of the accused-respondents, Surendra.
Thus, far from being interested, the witness
seems to be a common friend of the accused and, therefore, is not likely to
depose falsely against one or the other.
This Court has laid down in a series of cases
that the mere fact that witnesses are interested is no ground for throwing out
their evidence aboard. All that is necessary is that in such cases, the
evidence of the witnesses should be examined with caution and having done that
if the court feels that the evidence does not suffer from any other legal or
factual infirmity, there is no reason to distrust the evidence of such a
witness. It may be mentioned that the evidence of an interested witness is not
like the evidence of an approver which would need corroboration and the rule of
caution cannot be confined in a straitjacket, Summing up, therefore, these are
the only reasons given by the High Court for reversing the well-reasoned
judgment of the trial court which convicted the respondents under s. 302 read
with s. 34, I.P.C.
Mr. Garg, appearing for the respondents
vehemently contended that in an appeal against acquittal this Court would not
interfere 895 unless there are substantial or compelling reasons for the same
or where the view taken by the High Court appears to be absolutely perverse.
This was not a case, argued the counsel, in which it could be said that a
different view was reasonably possible and hence the acquittal should be
upheld. We are, however, unable to agree with this argument because after
carefully scrutinising the reasons given by the High Court in reversing the
judgment of the trial court, we are clearly of the opinion that the judgment of
the High Court perilously borders on perversity and this is certainly not a
case where two views are possible.
Mr Garg drew our attention to certain
decisions of this Court regarding the principles on which an order of acquittal
could be set aside and laid special stress on the ratio in the cases of Thulia
Kuli v. The State of Tamil Nadu (1) and Dalbir Kaur & or S. v. State of
Punjab(2) We are fully alive to the principles laid down by this Court and on
the findings of fact arrived and the application of law made by us, we are of
the opinion that this case is in no way inconsistent with the principles
enunciated by this Court in the cases referred to above.
Lastly, Mr Garg appealed to this Court not to
interfere in this case as the accused have been subjected to a waiting period
of about IS years starting from the institution of the case till the judgment
of this Court. We are afraid, it is not possible to concede to the request of
the counsel because once we find that the respondents are guilty of the offence
of murder, whatever is the nature of the timelag between the prosecution and
conviction the law must take its course.
The High Court has committeed serious errors
of law in appreciating and marshalling the evidence and in basing its
conclusions more on speculation that on the evidence led before the trial
court. On a careful consideration and detailed review of the evidence and
circumstances of the case we are fully satisfied that there is no good reason
to disbelieve the testimony of PWs 1, Z and 3 particularly when the evidence of
PWs 1 and 3 was fully corroborated by PW 2 who was doubtless an independent
witness and whose evidence did not suffer from any manifest defect. We,
therefore, fully believe the 896 tostimony of the eye-witnesses and hold that
from the evidence on record the prosecution case has been proved beyond
reasonable doubt and the order of acquittal passed by the High Court was wrong
on a point of law which is sufficient to warrant our interference. In these
circumstances, it is impossible to sustain, the judgment of the High Court.
We, therefore, allow the appeal, set aside
the judgment of the High Court and convict the respondents under s. 302 read
with s. 34 of the Indian Penal Code and sentence them to imprisonment for life
for causing the death of the deceased, Rajinder Kumar. The respondents who were
on bail, will now surrender to their bail-bonds and be taken into custody to
serve out the sentence imposed.
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