Full Judgment Text
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
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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