Moti Prasad vs State of Uttar Pradesh

Mukhtar Ahmad, J.—This criminal appeal arises out of the judgment and order dated 26.2.1983, passed by the 3rd Additional Session Judge, Gorakhpur in S.T. No. 174 of 1981, convicting and sentencing the appellant to imprisonment for life under section 396 I.P.C. The other two accused persons namely Sudama Prasad and Jai Shri Prasad were done to death by villagers on spot, however remaining 8-9 unknown co-accused persons were never traced out.

The prosecution case was that in the night of 3/4 July 1979 at about 1 A.M. 10-12 dacoits armed with lathi, Farsa country made pistol, hand grenades etc. along with torches entered in to the village Kurmahi and started to commit dacoity in the houses of Bhikha Kurmi, his neighbors Ram Adhar Kurmi and Mitthu Kurmi by causing assaults to their family members. In the meantime, Bhikha Kurmi ran raising alarm by jumping over the southern boundary wall of his house but one of the dacoits hurled hand grenade on him, which hit him causing head injury, resultantly Bhikha succumbed to the injuries sustained. It is also alleged that Fagoo, Moti Chand, Hari Shanker, Haribansh s/o Deodutt Kurmi, Haribansh s/o Jatan Kurmi, Hari Narain, Swami Nath, Ram Bharose, Parmeshwar, Chhedi, Palakdhari, Bhagirathi, Agnu, Rama Kant, Rajendra, Mahangu Hasan, Ashiq, Lalji, Ram Awadh, Rasool and many other persons of the village with lathi dandas came running flashing their torches and surrounded the houses of Bhikha, Mitthu and Ram Adhar and gave lalkara to the dacoits after flashing their torches. Fagoo, Rajendra Gomal had set fire at the heaps of the leaves of sugarcane, which was kept outside the village. Seeing this the dacoits became afraid and tried to run away but the villagers strongly resisted, out of which two dacoits namely Sudama Prasad son of Ram Komal Harijan and Jaishree Prasad s/o Durbal Harijan resident of Laxmipur Shiwala were done to death and the appellant-Moti Prasad was apprehended alive; that remaining dacoits along with looted articles succeeded in running away from the spot who were identified by the villagers in the light of fire from burning leaves of sugarcane. Some of them were unknown. It was also asserted that one of the dacoits hit Ram Deo with fire arm resulting injury in his belly. The description of looted articles were also given in the tahrir.

FIR of the incident was got lodged by Fagoo PW-1, who happens to be the Pradhan of the village, which was transcribed by Head Moharrir Nag Narain Singh PW-6 by preparing chick FIR and concerning G.D. The investigation of the case was entrusted to Sub Inspector A.N.Tiwari PW 3. He interrogated appellant Moti at Police Station and then reached on the spot. He recorded the statements of the witnesses. The injured persons Ram Deo, Ram Adhar, Smt Sukh Rani and Katwaru were sent for medical examination through police constables. Thereafter inquest on dead body of Bhikha was conducted. Through constable Faujdar Chaubey, his dead body after being sealed was sent for post mortem along with necessary papers. He also conducted inquest of dead bodies of miscreants Sudama and Jai Shree and sent their dead bodies too for postmortem after making all the formalities. He also made inspection of the place of occurrence and prepared site plan and collected blood stained and simple earth from the places where dead bodies were found and prepared fard. He also inspected the torches, which were in working position and prepared fards. After making all the formalities, he concluded the investigation and submitted charge sheet. A cross version FIR was also registered on behalf of father of appellant. The concerned Magistrate committed the case to the Court of Session, ultimately it was transferred to the Court of 3rd Additional Session Judge, where charge under section 396 IPC was framed against he accused. He denied the charges and claimed to be tried.

In order to substantiate the charge against the accused the prosecution has examined six witnesses. PW-1 Fagoo happens to be the Pradhan of the village and first informant of the case. He has deposed in his oral testimony the eye witness account of the incident. PW-2 Ramdeo happens to be the injured witness in the same incident of dacoity he has also been produced as eye witness of the incident. PW-3 A.N. Tiwari is the investigating officer. PW-4 Dr Ramesh Prasad had medically examined the victims namely Katwaru, Ram Deo, Ram Adhar and Smt. Sukhyani. Appellant Moti Prasad was also examined by him on the same day. He has proved the injury reports. Dr. Y.P. Singh had conducted the postmortem on the dead body of deceased Bhikha as well as on the dead bodies of the miscreants namely Sudama Prasad and Jai Shree Harijan. Since the genuineness of the postmortem reports was admitted by the defence counsel, so he was not produced in the Court. PW-5, Deo Saran Tripathi is the investigating officer and PW 6 Head Moharrir Jag Narain Singh is the witness who had prepared the chick FIR and concerning G.D.

After concluding the prosecution evidence, the statement of accused under section 313 was recorded. He denied his involvement in the crime and claimed to be falsely implicated. It was also stated by him that in the Morning he along with his father and peoples of his village had gone to release Jai Shree and Sudama but he after beating was got apprehended. He further stated that his brother Sudama and uncle Jai Shree were watering slept there in the fields and in the morning villagers of village Kurmahi took them from there after beating them, in respect of that an FIR of cross version was registered by his father and cross case was also proceeding in the same very court.

Learned Additional session Judge on the basis of the evidence adduced before the court found the case proved against the appellant 4 accused and awarded the sentence as stated above. Assailing the judgment of conviction and sentence, the instant appeal has been preferred.

We have heard Mr. Kapil Deo Rathore, Learned counsel appearing on behalf of the appellant and Mr. M.S. Yadav Learned A.G.A. at length.

We have given thorough consideration to the submissions made on behalf of rival parties. After a close examination of the evidence on record, we are of the opinion that the evidence for recording the conviction of the appellant is not reliable and it could not be ruled out that dacoits had committed dacoity and murder and in the same incident two miscreants also died and as the police was unable to solve this case, in order to avoid criticism, it had booked the appellant without making any sincere effort to search out the unknown assailants, only in order to show the case as solved. Our this opinion is based on the following grounds :-

(i) that two witnesses of facts namely Fagoo Pradhan Pw-1 and Ramdeo Pw-2 have been examined. P.W.2 Ramdeo himself has stated that after hue and cry he had awaken in the night and he was standing on his door and after receiving fire arm injury in his belly, he fell down on earth and became unconscious. It has been specifically stated by him in his examination-in-chief that before killing two dacoits and apprehending one dacoit, he had sustained fire arm injury and had become unconscious. In his cross examination, he stated that on the next day, at about 10 am., he regained conscious. This witness has also denied the statement recorded by the Investigating Officer in which the name of dacoits were described by him. The statement of P.W.2 shows that he had not witnessed whole incident of dacoity and his inconsistent version makes his testimony unreliable and unworthy of credence and in our view, placing reliance on his statement would not be safe. Learned Counsel for the appellant in this regard has placed reliance on the decision rendered by the Apex Court in the case of Suraj Mal v. The State (Delhi Administration) AIR 1979 SC 1408, wherein, the Apex Court in para-2 has observed that where witnesses make two inconsistent statements in their evidence, either at one such or at two such places, the testimony of such witnesses become unreliable and unworthy of credence and in absence of special circumstances, no conviction can be based on the evidence of such witnesses. So, his evidence is not reliable.

(ii) Now, P.W.1 remains as single eye witness of the incident. No doubt, conviction can be based on single eye witness account but the Court must be satisfied that his testimony should be of such a sterling quality that the Court finds it safe to base conviction. On this point, it would be proper to take into account the law cited on behalf of the appellant delivered by the Supreme Court in the case of Bhimapa Chandappa Hosamani v. State of Karnataka (2006) 11 SCC 323. In para 24 of the judgment the Apex Court has observed as under;

"24-We have undertaken a very close and critical scrutiny of the evidence of PW-1 and the other evidence on record only with a view to assess whether the evidence of PW 1 is of such quality that a conviction for the offence of murder can be safely rested on her sole testimony of a single eyewitness a conviction may be recorded, but it has also cautioned that while doing so the Court must be satisfied that the testimony of the solitary eye witness is of such sterling quality that the Court finds it safe to base a conviction solely on the testimony of that witness. In doing so, the Court must test the credibility of the witness by reference to the quality of his evidence. The evidence must be free of any blemish or suspicion, must impress the Court as wholly truthful, must appear to be natural and so convincing that the Court has no hesitation in recording a conviction solely on the basis of the testimony of a single witness."

In Rai Sandeep @ Deepu v. State (NCT of Delhi) (2012) 8 SCC 21 cited on behalf of appellant the Apex Court has observed as under in para-22;

" 22-In our considered opinion, the "sterling witness" should be of a very high quality and calibre whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant his the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should be not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be under no circumstance should given room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."

(iii) Now the evidence of single eye witness PW-1 Fagoo Pradhan is to be scrutinized keeping in mind the aforesaid discussion and the proposition of law laid down by the Apex Court. This witness has deposed that in the night of incident, he was in his khalihan and was in awaken state as he had returned after attending Tilak ceremony from the house of Ramdhari. He is the witness who watched the dacoits from north-western side entering into the village and started to commit dacoity in the houses of Bhikha, Udhare and Mitthu. All the dacoits were armed with weapons. In his cross examination, it has been stated by this witness that his house is situated at about 100 span from the house of Bhikha towards south and his khalihan is about 25 span towards north from his house, meaning thereby that he saw the incident from the distance of about 75 span. In the site plan, though the place from where, he witnessed the incident has not been shown. In the cross examination, at page 34 of the paper book, this witness stated that he saw the incident from the field of Sahadeo. He further stated that the field of Sahadeo is towards north from the house of Sethai which is also towards western side from the chappar of Hira Kurmi. In the site plan, houses of Sethai and chapra of Hira Kurmi are shown and it appears to be improbable to watch the entire incident of dacoity from the field of Sahadeo as has been stated by this witness. In para-17, this witness said that he saw the incident of dacoity in the house Bhikha from the distance of 30 span. The oral testimony of this witness shows that he has deposed inconsistent statement in respect to watching of the incident.

(iv) As per prosecution version, nothing was recovered (either weapon of assault or looted articles) from the possession of appellant which also creates shadow of doubt that if a person is involved in the incident of dacoity, his participation in the crime empty handed seems to be unbelievable. It is stated that two miscreants who were done to death and appellant was apprehended, belong to the village Laxmipur Shivala, neighboring village of Kurmahi where the incident of dacoity took place and as per statement of P.W.1, it is situated about one and half furlong distance. It is not the case of prosecution that dacoits were hiding their faces with cover, which seems to be unnatural, particularly when the dacoits are said to be of adjacent village, very near to the place where incident of dacoity took place.

(v) Now, question which comes for consideration is that the incident of dacoity is said to have taken place in the house of Bhikha, Ramadhar Kurmi and Mitthu Kurmi. P.W.1 in his oral testimony has said that Ramadhar and his mother sustained injuries but none of the family members came forward as witness while they had first hand opportunity to describe the incident and to identify the dacoits including appellant and their particular roles. It cannot be denied that quantity of evidence has no relevance and no particular number of witnesses can be fixed for proving prosecution version, but considering the facts and circumstances of the case, the witnesses who sustained injuries and saw the incident as family members ought to have been examined as prosecution witness. No reason has been shown by the prosecution that why the family members of the victims have not been produced in the witness box. All these things further put shadow of doubt on the prosecution version.

The Apex Court in (1989) 3 SCC 390 State of U.P. v. Madan Mohan and others, dealing with a double murder case where the witnesses of locality whose presence was considered natural were not examined, has observed that non examination of the witnesses of the locality, though statement of some of residents were recorded by the Investigating Officer and no explanation of their non examination was given from the side of prosecution, the Apex Court held the prosecution version doubtful and genesis of crime suppressed, consequently the benefit of doubt was given to the accused. In the matter in hand, the presence of injured witnesses in whose house the incident of decoity was taken place was committed was natural but their non examination in the Court creates a doubt regarding truthfulness of the prosecution version.

In view of the discussion made above, we find that solitary version of first informant PW 1 Fagoo Pradhan can not be taken as reliable for its face value and in absence of any other supporting evidence coupled with the fact of non examining the injured witnesses of the families where the decoity was held, being most natural witnesses, there is no scope to sustain the conviction and sentence imposed on the appellant, as in our view the prosecution has failed to prove its case beyond reasonable doubt and the appellant deserves benefit of doubt.

In the result, appeal succeeds and is allowed. The impugned conviction and sentence awarded by the Trial Court in S.T. No. 174 of 1981 (State v. Moti Prasad) arising out of case crime no.80/79 under section 396 IPC vide impugned judgment and order dated 26/27 july 1983 is hereby set aside. The appellant is on bail, hence his bail bonds are cancelled and sureties are discharged provided he furnishes fresh bail bonds with surities in compliance of the provision under section 437 A Cr.P.C. Before the trial court. The court concerned shall ensure the compliance of the order.

Let office to communicate this judgment to the Trial Court concerned for ensuring compliance under intimation to this court.