Kare alias Moti vs State of U.P.

M.C. Jain, J.—This appeal has been directed against the judgment and order dated 6th March, 1981, recorded by Sri M. Wahajuddin, the then Sessions Judge, Agra in Sessions Trial No. 411 of 1980 convicting the Appellant u/s 302, I.P.C. and sentencing him to life imprisonment.

The facts lie in a narrow compass. It was one Ram Babu who was allegedly murdered in this incident on 18th July, 1979 at about 5.30 p.m. in village Datauli police station Matsena, district Agra, report whereof was lodged the same night at 9.30 p.m. by Panna Lal P.W. 1 (uncle of the deceased who is an eye-witness). The deceased with Brij Mohan P.W. 2 and Gyan Singh P.W. 3 had gone to ravines (Beehar) of Datauli at about 3.30 p.m. on the fateful day for hunting of rabbits and partridges. The net was placed and preys were rounded. The Appellant suddenly came out from the bushes and stabbed the deceased in the back whereafter he fell down and then the Appellant further assaulted him with lathi. He died at the spot. The companions of the deceased, namely, Brij Mohan P.W. 2 and Gyan Singh P.W. 3 returned and informed Panna Lal P.W. 1 (uncle of the deceased), who after getting scribed the report by Rajendra Prasad lodged the same at the police station setting the machinery of law in motion at the hands of S.I. Raghunandan Sharma P.W. 5, who was then the Station Officer of police station concerned. He proceeded to the spot and found the dead body of the deceased lying in the field of Parashuram. For want of proper lighting arrangement, panchayat-nama could not be prepared in the night, but on the next day. After other necessary formalities, the dead body was sent for post mortem which was conducted on 19.7.1979 at 1 p.m. by Dr. V. B. Bansal P.W. 6. The deceased was aged about 35 years and about one day had passed since he died. The following ante-mortem injuries were found on his person:

(1) Lacerated wound 1-1/2" - 1/2" - brain deep over left side head, 3-1/2" above and behind left ear.

(2) Lacerated wound 1" - 1/2" - brain deep over the left side head, 3" above and behind left ear.

(3) Lacerated wound 1" - 1/2" - brain deep over right side head, 3" above and behind right ear.

(4) Incised wound 1" - 1/4" - brain deep over left side chin.

(5) Incised wound 1-1/2" - 1/4" - muscle deep over back middle right side, 1" side to vertebral column.

(6) Incised wound 1" - 1/4" - muscle deep over left side back 1" below the anterior angle of left scapula.

On internal examination, multiple fractures of skull bones especially of backside had been found. Membranes and brain were also lacerated. The death was due to coma as a result of ante-mortem injuries.

On conclusion of investigation, charge-sheet was submitted against the Appellant who was tried, resulting in the impugned judgment assailed through this appeal.

The defence was of denial. He also pleaded alibi and that his name was Ram Babu with no alias name of as Kare.

To substantiate the charge against the Appellant, the prosecution examined eight witnesses. Panna Lal P.W. 1 (uncle of the deceased) was the informant but not an eye-witness whereas Brij Mohan P.W. 2 and Gyan Singh P.W. 3 were eye-witnesses who had accompanied the deceased for hunting. The rest were formal witnesses including the Doctor conducting autopsy on the dead body of the deceased and the Investigating Officer who investigated the case. It may be related here that Rashid D.W. 1, Sherpal Singh D.W. 2 and Bhimsen (father of the Appellant) D.W. 3 deposed that the Appellant had no alias name as Kare. Sherpal Singh D.W. 2 was the witness of alibi set up by the Appellant that he himself was a Munim in Jagdish Glass Works, Firozabad and the Appellant used to do job work of joining bangles. On the fateful day he had allegedly gone to the said factory at 3.30 p.m. and was there upto 5 p.m. in connection with job work of joining bangles.

As the case and the evidence of the prosecution found favour with the learned trial Judge, the Appellant was convicted and sentenced as above. Being aggrieved, he has come up in appeal before this Court.

We have heard Sri P. N. Mishra for the Appellant and Sri A. K. Dwivedi learned A.G.A. from the side of the State in opposition of the appeal. The record of the case is before us, which we have perused.

The central core of the argument of Sri Misra is that Gyan Singh P.W. 3 having not supported the prosecution case as an eye-witness and having been declared hostile by the prosecution, the case rests on the sole testimony of Brij Mohan P.W. 2. According to him, he is not a wholly reliable witness because his evidence is in conflict with medical evidence and the prosecution failed to prove any motive either on the part of the Appellant to commit this crime. Though the learned A.G.A. has attempted hard to support the impugned judgment of conviction recorded by the trial court, but on scrutiny of evidence and material on record in the light of attending circumstances, we find sufficient force in the submission of Sri Misra learned Counsel for the Appellant.

Indeed, the Court does not insist on the plurality of witnesses in proof of any fact. Conviction can be sustained on the testimony of a sole witness. But in that case, his testimony should be wholly reliable. In other words, the witness should be of wholly reliable nature. When the case rests on the testimony of a sole witness, by way of caution, the Court looks for corroboration of his testimony by other material and circumstances and when the offence relates to bodily injury or death, conformity of testimony of the sole witness with medical evidence assumes great importance.

In the present case, Gyan Singh P.W. 3 disowned himself to be an eye-witness, though he admitted that he had gone with Ram Babu deceased and Brij Mohan P.W. 2 on the fateful day for hunting partridges and rabbits. According to him, after laying the net all the three had separated and he was at a distance of 60-70 yards from the net, searching rabbits and partridges. He saw Ram Babu lying injured on the net in the field of Parashuram with a knife injury on his back and that Brij Mohan told him that the accused Appellant Kare had run away after injuring him. Ram Babu died there. There was injury on his head too. Obviously, it can be said that he rendered res gestae evidence, as he was informed by Brij Mohan P.W. 2 immediately after the incident that it was the accused Appellant who had run away after injuring Ram Babu. Naturally, therefore, the fate of the case would depend upon the testimony of Brij Mohan P.W. 2 and corroboration for his testimony cannot be derived from that of Gyan Singh P.W 3 because the source of information of the latter was the former. When we test the testimony of Brij Mohan P.W. 2, in the light of medical evidence, we find it to be highly inconsistent with the post mortem report of the deceased. He had received three lacerated wounds and three incised wounds. One of the incised wounds was over back of middle right side and the other one on the left side of back below the anterior angle of left scapula. The third was on left side of chin. But the version of Brij Mohan P.W. 2 is that the accused Appellant had given one knife blow in the back of Ram Babu whereafter he had fallen down in the field of Parashuram. Then he had given danda blows to him. As we have noted, besides an incised wound on left side of chin, the deceased had received two incised wounds on his back, one on the right side and the other on the left and the same could not have been sustained by a single knife blow.

There is another serious incongruity in the case that the accused Appellant allegedly used two types of weapons in inflicting injury on the deceased. The evidence of Brij Mohan P.W. 2 is that first the accused Appellant gave a knife blow in the back of Ram Babu and on his having fallen down, he struck danda blows to him. It sounds to be highly improbable that he would have brought two kinds of weapons to attack the victim. Moreover, if he had downed the victim by giving a knife blow in his back, he would have made use of knife (instead of lathi) again because it was likely to be more effective and convenient in accomplishing the mission of cutting short his life. It does not have the attraction of logic that he would come out of the bushes holding knife in one hand and a lathi in another and would first strike one knife blow on the victim, whereafter he would stop using it and then would wield lathi or danda to strike him. The factum that the deceased received injuries of two types of weapons is an indicator that he had been assaulted by two persons and the entire setting is just the guesswork of Brij Mohan P.W. 2 in framing the accused Appellant as the culprit.

That apart, the prosecution case is that the deceased, Brij Mohan P.W. 2 and Gyan Singh P.W. 3 had gone for hunting together, meaning thereby that they were on friendly terms. Brij Mohan P.W. 2 did not receive any injury. It does not appear that he made any attempt either to save his friend Ram Babu. There is nothing to show that the accused Appellant knew from before that he would find the victim while hunting on the given date and time. It may be tested the other way also. In case it was the routine of the deceased, Brij Mohan P.W. 2 and Gyan Singh P.W. 3 to go for hunting daily that side, then the accused Appellant must also have known that his target would not be alone and that he would be accompanied by two others. Therefore, he would not have taken the risk of being alone in assaulting the victim. Ordinarily, he would have taken care to be effective match for his adversary who was to be accompanied by two others.

It may also be pointed out that the Investigating Officer did not find any net on the spot, though the statement of Gyan Singh P.W. 3 is that Ram Babu had fallen on the net in the field of Parashuram. The net undoubtedly was to be an important piece of physical evidence to support the prosecution version which is missing.

The motive assigned by the prosecution against the accused Appellant that he suspected the deceased Ram Babu to have earlier killed his nephew Bhoori, also does not inspire confidence. Bhoori had allegedly gone for hunting about 1-1/4 years back with Ram Babu. Brij Mohan P.W. 2 admitted that the dead body of Bhoori had been found in a well. He did not even know whether any report regarding his death had been lodged. We do not know whether any case had been registered regarding the death of Bhoori and whether Ram Babu was named or suspected to be the culprit. The statement of accused Appellant u/s 313, Cr. P.C. was that Bhoori had died his own death in April 1977.

All facts and attending circumstances considered, we do not find any corroboration of the testimony of Brij Mohan P.W. 2, the sole person projected to be an eye-witness. Rather, the account given by him is in marked conflict with the medical evidence. There are other inherent improbabilities also in the prosecution story as we have discussed hereinabove. No doubt, Ram Babu was the victim of violence but the liability cannot be fastened on the head of the accused Appellant as the evidence adduced by the prosecution was meagre and conflicting with medical evidence. The learned trial Judge seems to have recorded the finding of conviction without an in-depth analysis.

In view of the above discussion, we allow this appeal and set aside the conviction and sentence passed against the Appellant. He is acquitted. Presently, he is in jail. He shall be set at liberty, if not wanted in any other connection.

The office shall send a copy of this judgment along with record to the court below for needful compliance under intimation to this Court within two months.