Rajendra & ANR. Vs.
State of U.P. [2009] INSC 703 (8 April 2009)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1254 OF 2005
Rajendra & Anr. ... Appellants Versus State of Uttar Pradesh ... Respondent
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 2 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 3 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) 4 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.
5 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 6 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.
7 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 8 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 9 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.
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 11 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 12
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 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;
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