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PETITIONER:

JAGDISH NARAIN & ANR.

Vs.

RESPONDENT:

STATE OF U.P.

DATE OF JUDGMENT: 12/03/1996

BENCH:

MUKHERJEE M.K. (J)

BENCH:

MUKHERJEE M.K. (J)

ANAND, A.S. (J)

CITATION:

JT 1996 (3) 89 1996 SCALE (2)650

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

M.K. MUKHERJEE,J.

Jagdish Narain, the appellant No.1, alongwith his two

sons Avdhesh and Avinash and two friends Rameshwar Dayal,

the appellant No.2, and Surya Prakash was tried by the

Additional Sessions Judge, Pilibhit, for rioting and murder

of his step brother Jitendra Nath. The trial ended in an

acquittal; and aggrieved thereby the State preferred an

appeal. During the pendency of the appeal Avdesh and Surya

prakash died and consequently their appeal abated. As

regards others, the High Court affirmed the acquittal of

Avinash but reversed that of the two appellants (the

respondents therein) and convicted and sentenced them under

Sections 148 and 302, read with Section 149 IPC. The above

order of conviction and sentence is under challenge in this

appeal preferred under Section 379 Cr.P.C.

Shorn of details the prosecution case is that on

February 11, 1977 the deceased, his son Achal Kumar (P.W.1)

and his servant Devi Ram (P.W.2) were carrying sugarcane in

a bullock-cart from their village Mar to a mill in Bilsanda

for getting the same weighed. While P.Ws. 1 and 2 were in

the bullock cart with the latter driving it, the deceased

was following the cart on foot. At or about 2 P.M. when the

cart had, after crossing a culvert situated on the kachha

road, reached near the field of one Ram Autar, the five

accused persons came out from behind a heap of straws armed

with deadly weapons including guns. Then the appellant No.1

fired a shot at Jitendra Nath felling him down. The gun

which the deceased was carrying also fell down. On the

exhortation of Avinash and Avdesh, the appellant No.2 also

fired a shot hitting Jitendra Nath. Thereafter the

miscreants fled away alongwith the gun of the deceased.

Achal Kumar (P.W.1) then rushed to Bilsanda Police

Station, which was at a distance of one mile, and lodged an

information about the incident. On that information a case

was registered against the accused persons and Inspector

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D.R. Thapalyal (P.W.6) took up investigation. He went to the

scene of occurrence accompanied by other police personnel

and after holding inquest upon the dead body sent it for

post-mortem examination. He prepared a site plan and seized

some blood stained earth, two pellets and one pair of shoes

from the site. On completion of investigation he submitted

chargesheet against the accused persons and in due course

the case was committed to the Court of Session.

The accused persons pleaded not guilty to the charges

levelled against them and their defence was that they had

been falsely implicated.

To sustain the charges levelled against the accused

persons the prosecution relied upon the ocular accounts of

Achal Kumar (P.W.1) and Devi Ram (P.W.2), who were allegedly

in the cart, and Daya Ram (P.W.3) who claimed that he was

passing along the road at the material time. Besides, the

prosecution examined the doctor, who held post-mortem

examination upon the deceased, the Investigating Officer and

some other formal witnesses. The reasons which weighed with

the trial Court to disbelieve the evidence of the eye

witnesses and, for that matter the prosecution case, are as

under:

i) The testimonies of the eye witnesses stood contradicted

by their earlier statements recorded under Section 161

Cr.P.C.;

ii) Though, according to the eye witnesses, the deceased

was attacked while going along the sait (road) his dead body

was found in the field (of Ram Autar) and no explanation was

offered by the prosecution to reconcile the anomaly;

iii) Even though the Investigating Officer admitted that he

knew from the very beginning about the importance of the

place from where the shots were fired he did not indicate

that place in the site plan he prepared and such failure

made the investigation faulty and suspicious;

iv) No attempt was made by the Investigating Officer to

ascertain to whom the pair of shoes found near the dead body

belonged; and

v) A number of documents were filed on behalf of the

accused persons to show that the deceased had enmity with

other persons also and, therefore, it could not be said that

they were the only persons who were likely to commit the

murder of Jitendra Nath, more so when he was armed with a

gun.

In reversing the order of acquittal and passing the

impugned order the High Court first reappraised the evidence

in the light of the above findings and demonstrated that

each of them was perverse. It then considered the evidence

of the three eye witnesses to ascertain whether it could be

safely relied upon to base a conviction. On such

consideration the High Court found that PWs 1 and 2 were the

most probable and natural witnesses and that their evidence

was credit worthy. The High Court, however, left the

evidence of PW 3 out of consideration as, according to it,

he was not an independent witness. The High Court further

found that the evidence of P.W.1 stood fully corroborated by

the PIR which was lodged within half an hour of the incident

and that the evidence of both P.Ws. 1 and 2 stood

corroborated by the medical evidence.

This being a statutory appeal we have, for ourselves,

carefully perused the evidence adduced by the prosecution

(no evidence was led by the defence) particularly that of

P.W.1 and 2 keeping in view the judgments of the learned

Courts below; and we are constrained to say that none of the

grounds canvassed by the trial Court to acquit the

appellants can be sustained. The contradictions which

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persuaded the trial Court to disbelieve the eye witnesses

related to their omissions to make certain statements before

the Investigating Officer, which they made before the Court.

On perusal thereof we find that the omissions were so minor

and insignificant that they did not amount to contradictions

at all. To eschew prolixity of this judgment we, however,

refrain from detailing them except referring to one, to

illustrate the entirely wrong approach of the trial Court in

this regard. PW 2 testified that while driving the cart he

was sitting on the bundles of the sugarcane but in his

statement recorded under Section 161 Cr.P.C. he did not

state that he was so seated. Indeed, it is only for this

minor omission that the trial Court found the evidence of PW

2 wholly unreliable.

As regards the comment of the trial Court that the

prosecution made no attempt to dispel the anomaly about the

place where the deceased was attacked and his dead body was

found, we are in complete agreement with the observations of

the High Court that the above comment was the outcome of non

consideration of the evidence. P.W.1 testified that while

the cart was proceeding on the kacha road and it had reached

the place where the road turned towards the east, his father

moved on to the pagdandi, (hilly circuitous track) which

passes through the field of Ram Autar. According to the

evidence of P.W.6, which remained uncontroverted, the dead

body of Jitendra was found lying near the pagdandi and he

held inquest there. The evidence of the prosecution

witnesses thus clearly proves that Jitendra Nath met with

his death at the place where his dead body was Lying. The

finding of the trial Court in this regard must therefore be

said to be perverse.

In responding to the next criticism of the trial Court

regarding the failure of the Investigating Officer to

indicate in the site plan prepared by him the spot wherefrom

the shots were allegedly tired by the appellants and its

resultant effect upon the investigation itself, the High

Court observed that such failure did not detract from the

truthfulness of the eye witnesses and only amounted to an

omission on the part of the Investigating Officer. In our

opinion neither the criticism of the trial Court nor the

reason ascribed by the High Court in its rebuttal can be

legally sustained. While preparing a site plan an

Investigating Police Officer can certainly record what he

sees and observes, for that will be direct and substantive

evidence being based on his personal knowledge; but as, he

was not obviously present when the incident took place, he

has to derive knowledge as to when, where and how it

happened from persons who had seen the incident. When a

witness testifies about what he heard from somebody else it

is ordinarily not admissible in evidence being hearsay, but

if the person for whom he heard is examined to give direct

evidence within the meaning of Section 60 of the Evidence

Act, the former's evidence would be admissible to

corroborate the latter in accordance with Section 157

Cr.P.C.. However such a statement made to a Police Officer,

when he is investigating into an offence in accordance with

Chapter XII of the Code of Criminal Procedure cannot be used

to even corroborate the maker thereof in view of the embargo

in Section 162 (1) Cr.P.C. appearing in that chapter and can

be used only to contradict him (the maker) in accordance

with the proviso thereof, except in those cases where sub-

section (2) of the section appeals. That necessarily means

that if in the site plan P.W.6 had even shown the place from

which the shots were allegedly fired after ascertaining the

same from the eye witnesses it could not have been admitted

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in evidence being hit by Section 162 Cr.P.C. The law on this

subject has been succinctly laid down by a three Judge Bench

of this Court in Tori Singh vs. State of U.P., AIR 1962 SC

399. In that case it was contended on behalf of the

appellant therein that if one looked at the sketch map, on

which the place where the deceased was said to have been hit

was marked, and compared it with the statements of the

prosecution witnesses and the medical evidence, it would be

extremely improbable for the injury which was received by

the deceased to have been caused on that part of the body

where it had been actually caused if the deceased was at the

place marked on the map. In repelling the above contention

this Court observed, inter alia,:

"..........the mark on the sketrh-

map was put by the Sub-Inspector

who was obviously not an eye-

witness to the incident. He could

only have put it there after taking

the statements of the eye

witnesses. The marking of the spot

on the sketch-map is really

bringing on record the conclusion

of the Sub-Inspector on the basis

of the statements made by the

witnesses to him. This in our

opinion would not be admissible in

view of the provisions of S. 162 of

the Code of Criminal Procedure, for

it is in effect nothing more than

the statement of the Sub-Inspector

that the eye-witnesses told him

that the deceased was at such and

such place at the time when he was

hit. The sketch-map would be

admissible so far as it indicates

all that the Sub-Inspector saw

himself at the spot; but any mark

put on the sketch-map based on the

statements made by the witnesses to

the Sub-Inspector would be

inadmissible in view of the clear

provisions of S.162 of the Code of

Criminal Procedure as it will be no

more than a statement made to the

police during investigation."

(emphasis supplied)

While on this point, it will be pertinent to mention that if

in a given case the site plan is prepared by a draftsman -

and not by the Investigating Officer - entries therein

regarding the place from where shots were fired or other

details derived from other witnesses would be admissible as

corroborative evidence as has been observed by this Court in

Tori Singh's case (supra) in the following passage:

"This Court had occasion to

consider the admissibility of a

plan drawn to scale by a draftsman

in which after ascertaining from

the witnesses where exactly the

assailants and the victims stood at

the time of the commission of

offence, the draftsman put down the

places in the map, in Santa Singh

v. State of Punjab, AIR 1956 SC

526. It was held that such a plan

drawn to scale was admissible if

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the witnesses corroborated the

statements of the draftsman that

they showed him the places and

would not be hit by S.162 of the

Code of Criminal Procedure."

(emphasis supplied)

The trial Court ought not to have also made much out of the

failure on the part of the Investigating Officer to find out

to whom the pair of shoes found near the dead body belonged

for the prosecution rested its case upon eye-witnesses and

not circumstantial evidence. If the prosecution intended to

prove the accusation levelled against the appellants by

circumstantial evidence, then proof of the circumstance that

the shoes belonged to one of them would certainly have been

incriminating but when the prosecution rested its case upon

the evidence of the eye witnesses that question was of no

such moment. In any event, the lacunae as pointed out by the

trial Court could not have in any way impaired the evidence

of the eye witnesses nor affected the prosecution case, as

rightly observed by the High Court.

The last reason given by the trial Court to disbelieve

the prosecution case in the context of the fact that the

deceased had enmity with others is absurd for such a plea

would have been available to anyone who might have been

arraigned for the murder. The High Court, was therefore

fully justified in observing that the deceased might have

enmity with others but the question as to who had committed

the murder was to be answered by the Court on the basis of

the evidence adduced.

Coming now to the evidence on record, we find that both

PWs 1 and 2 were the most probable witnesses, as they were

accompanying the deceased at the material time and that

inspite of a detailed searching cross-examination nothing

could be elicited by the defence to discredit or contradict

them. Besides, we find the FIR that P.W. 1 promptly lodged

within half an hour of the incident, fully corroborates

P.W.1. The evidence of the doctor (PW 4), who held autopsy

and found two gunshot wounds on the person of the deceased

also corroborates the evidence of the above two eye

witnesses. We are, therefore, in agreement with the High

Court that the prosecution succeeded in proving that owing

to the two shots fired by the appellants Jitendra Nath met

with his death. The High Court, however, was not legally

justified in convicting the appellants under Sections 148

and 149/302 IPC for consequent upon the order of acquittal

recorded by it in favour of Avdhesh, Section 148 and 149 IPC

could not have any manner of application - it being the

positive case of the prosecution that only the five

arraigned were the miscreants. Since, however, the manner in

which the incident took place clearly indicates that the

appellants shared the common intention of committing the

murder of Jitendra Nath they are liable for conviction for

the murder with the aid of Section 34 IPC.

On the conclusions as above we set aside the conviction

and sentence of the appellants under Section 148 IPC; and

alter their conviction under Section 302/149 to 302/34 IPC

but maintain the sentence of imprisonment for life imposed

for the former. With the above modifications the appeal is

dismissed. The appellants, who are on bail, will now

surrender to their bail bonds to serve out the sentence.