Riaz and Others (in Jail) vs State

Vishnu Sahai, J.—Through this appeal Riaz, Latif and Idris challenge the judgment and order dated 31.1.1981 passed by Ist Additional Sessions Judge, Bahraich in Sessions Trial No. 412 of 1979, whereby they have been convicted and sentenced in the manner stated hereinafter:

(i) u/s 302/34, I.P.C. to imprisonment for life ; and

(ii) u/s 323/34, I.P.C. to six months imprisonment.

Their sentences on both the counts were directed to run concurrently.

Shortly stated, the prosecution case runs as under:

Parsu Ram P.W. 4 was a ploughman of the deceased Dwarika Prasad, since two years prior to his murder. Dwarika Prasad had agricultural land and grove in villages Bhatpurwa and Shahpur, within the limits of District Bahraich. Inside the grove which was situated in village Bhatpurwa, he had a small residential unit comprising of a room and a verandah. He used to live in Agra District but at the time of sowing and harvesting used to visit village Bhatpurwa and Shahpur. On the night of 4/5.8.1979, Parsu Ram P.W. 4 and Dwarika Prasad were sleeping on separate cots outside the residential unit of the latter, situated inside his grove, in village Bhatpurwa. It was a moon lit night. About mid night, hearing some sound Parsu Ram woke up. He saw three persons, namely, Appellants Riaz, Latif and Idris. Out of them, Idris and Riaz were armed with danda and lathi and Latif with a country made pistol. All three of them came near the cot, on which Parsu Ram was sleeping. Idris and Riaz started assaulting him with lathis. He raised cries, hearing which Dwarika Prasad woke up and Dwarika Prasad with a lathi in his hand rushed to his rescue. In order to save Parsu Ram, Dwarika Prasad assaulted Idris and Riaz with lathi. Thereupon, Appellant Latif fired two shots from his country made pistol on the person of Dwarika Prasad, who ran inside his residential unit and bolted the room of his house. Appellants felled down the door of his room ; entered inside the room ; dragged him outside ; and assaulted him with kicks, fists and lathis. While assaulting him, they were saying that Darogaji had told them to kill him. As a consequence of the assault, Dwarika Prasad became unconscious. Thereafter, the Appellants tied Parsu Ram and Dwarika Prasad on a cot ; stuffed cloth inside their mouth ; and ran away. Dwarika Prasad extricated himself and also untied Parsu Ram. Then Parsu Ram along with Dwarika Prasad went to the abadi of Bhatpurwa village (no one resided in the grove). Parsu Ram woke up Bhagauti Prasad, Pradhan of the village. Hearing the news, many persons collected there. Some of those assembled took Dwarika Prasad on a cot to Nasirganj and from there on a bus to Bahraich and Parsu Ram went to inform Bechan Chowkidar (P.W. 5) about the incident.

The evidence of Bechan P.W. 5 shows thus: Parsu Ram P.W. 4 informed him about the incident at about 4.00 a.m. He did not tell him the names of the accused persons. The same day at 9.00 a.m., he went to police station Sonwa and lodged his oral F.I.R. (Exhibit Ka-5).

The evidence of Hasan Jafar P.W. 3 shows: On 5.8.1979 at 9.30 a.m. on the oral information furnished by Bechan P.W. 5, he recorded the F.I.R. (Exhibit Ka-5) and registered the case vide Exhibit Ka-6.

Going backwards, the evidence of Dr. B. K. Chopra P.W. 8 shows that on 5.8.1979 at 6.20 a.m., in District Hospital Bahraich, he medically examined Dwarika Prasad and found on his person the following injuries:

(1) Multiple gun shot wounds of entry (about 40 in number) scattered in an area of 26 cm. - 20 cm. extending on the left side of chest, 6 cm. below left nipple and whole of the front of the left side of abdomen. Size 0.25 cm. - 0.25 cm. - skin - muscle cavity deep. No blackening, tattooing, or charring was present.

(2) Multiple gun shot wounds of entry (about 5 in number) scattered in area of 13 cm. - 10 cm. on the right buttock, size 0.25 cm. - 0.25 cm. - skin - muscle deep. No blackening, tattooing and charring was present.

In the opinion of Dr. Chopra, the said injuries were attributable to a firearm and could have been caused at about midnight, on the night of 4/5.8.1979.

Since the condition of Dwarika Prasad was precarious, a requisition was sent to Suresh Chand P.W. 2, Tehsildar Magistrate, Bahraich, for recording his dying-declaration, which the latter recorded at 12.20 a.m. after Y. B. Chand P.W. 9, Medical Officer, District Hospital, Bahraich, had certified in his presence that he was in a fit condition to give the statement. It is significant to point out that said certificate of fitness is at the top of Exhibit Ka-18, the dying declaration. The said declaration has been recorded in Hindi and its English translation, in short, reads thus: He is a resident of Nisar Bagh Achraura Shahpur, which is situated within the limits of police station Sonwa. On the night of 4/5.8.1979 at about 11.00 p.m., he was sleeping outside his house. At about 11.30 p.m. all of a sudden, he woke up from sleep and saw in moonlight that three persons were assaulting his servant Parsu Ram with lathis. He recognised one of them, namely, Riaz. He challenged him, Riaz proceeded in his direction. He assaulted Riaz with a lathi. Riaz also assaulted him with a lathi. One of the aforesaid persons, whom he could recognise, fired with a country-made pistol upon him, resulting in an injury on his right thigh. When he moved back, the said person fired another shot at him, which struck him on his stomach. All three of them were saying "kill him" because if he survives, he would not spare them.

There was enmity, arising from agricultural land, between Riaz and him. He obtained an injunction from Civil Court. On account of enmity, he was assaulted.

After sustaining fire arm injuries, he went inside his house and closed the door but the said persons dragged him out therefrom and all three of them assaulted him with lathis. Thereafter, they tied him and his servant Parsu Ram on a cot and stuffed cloth in their mouth. Somehow he took out the cloth from his mouth ; first extricated himself ; and then Parsu Ram. Then he and Parsu Ram went to the abadi of village and informed Bhagauti Pradhan. Thereafter, on cot he was taken to Nasirganj market and from there on a bus to District Hospital, Bahraich.

Since the condition of Dwarika Prasad was critical, he was shifted to Balrampur Hospital, Lucknow, where he breathed his last, sometimes in late hours of the night of 12.8.1979.

The autopsy on the corpse of Dwarika Prasad was conducted on 12.8.1979 at 1 p.m. by Dr. Sailesh Chandra P.W. 1, who found on his person the following ante-mortem injuries:

(1) 46 gun shot wounds of entry 22 cm. - 14 cm. on outer and anterior part of abdomen and lower part of chest, lower end of hip area was 3 cm. above left iliac crest and upper was 5 cm. below level of nipple. The size of wounds is circular, from 0.2 cm. to 0.3 cm. diameter. Depth varies from skin to abdominal cavity. Those on chest part were skin to muscle deep. All were separate and had inverted margins. There was no blackening, scorching or tattooing on their margins.

(2) 5 (five) gun shot wounds from 1 cm. - 1 cm. to 3.5 cm. - 1 cm. in an area of 10 cm. - 4 cm. on right buttock across right gluetal fold. Depth was from skin to sub-cutaneous tissue deep. There was no scorching, tattooing or blackening over margins. The margins are partly inverted at one end (outer and everted at inner end.).

(3) Stitched wound 17 cm. long with 14 stitch intact on the front of abdomen in left paramecium position. On opening stitches it is found to be abdominal cavity deep, stitches in layers (surgical wound).

(4) Incised surgical wound of drainage with a rubber drain, 2 cm. - 1/2 cm. - abdominal cavity deep in midline of abdomen 6 cm. below umbilicus.

(5) Incised wound (surgical) of drainage 2.5 cm. - 1/2 cm. abdominal cavity deep in left iliac fossa.

(6) Cut open wound 1 cm. - 1/4 cm. - subcutaneous tissue deep on left leg, medial and lower part with underlying vein legated.

(7) Cut open wound 1.6 cm. - 1/4 cm. - subcutaneous tissue deep on right leg medial and lower part with underlying vein legated.

(8) Abrasion 3 cm. - 2 cm. on back 3 cm. below right scapula.

Beneath injury Nos. 1, 3, 4 and 5 Dr. Sailesh Chandra found enormous internal damage.

The cause of death spelt out in the post-mortem report was shock and haemorrhage as a result of multiple gun shot injuries and peritoneum and hepatic failure.

Going backwards, the injuries of Parsu Ram P.W. 4 were medically examined on 5.8.1979, at 5.30 p.m. by Dr. R. P. Misra (P.W. 6), Medical Officer, District Hospital, Bahraich, who found on his person the following injuries:

(1) Contused swelling 3 cm. - 2 cm. area, left side face ; just near the angle of mandible.

(2) Abraded contusion 3 cm. - 3.5 cm. over anterior part of the right leg, above 10 cm. above right ankle.

In the opinion of Dr. Misra, the said injuries were simple in nature ; attributable to a blunt object like lathi ; and could have been caused at about mid night on the night of 4/5.8.1979.

The investigation was conducted in usual manner by S.O. Rana Pratap Singh P.W. 7 of police station Sonwa, District Bahraich. Since, in our view, a reference to the details pertaining to it is not necessary for the disposal of this appeal, we are not adverting to them.

On completion of investigation, the Appellants were charge-sheeted.

The case was committed to the Court of Sessions in the usual manner, where the Appellants were charged on a dual count, namely, under Sections 302/34 and 324/34, I.P.C. They pleaded not guilty to the charges and claimed to be tried. Their defence was of denial.

To connect the Appellants with the crime, prosecution adduced evidence of a dual nature: (i) ocular account furnished by Parsu Ram P.W. 4 ; and (ii) the dying declaration of Dwarika Prasad recorded by Suresh Chand P.W. 2 Tehsildar Magistrate, Bahraich.

The learned trial Judge believed the evidence adduced by the prosecution and convicted and sentenced the Appellants in the manner stated in para 1.

Hence, this appeal.

We have heard learned Counsel for the parties and have no reservations in observing that we find merit in this appeal. In our view, both the ocular account furnished by Parsu Ram P.W. 4 and the dying declaration of Dwarika Prasad do not inspire any confidence.

We now propose giving our reasons for reaching the said conclusion.

We begin with the ocular account furnished by Parsu Ram. Since in para 2, we have set out the prosecution story on the basis of the recitals contained in his examination-in-chief, we do not want to burden our judgment by repeating the details.

In our view, it would not be safe to place reliance on it for the following reasons:

Firstly, in his cross-examination, he has categorically admitted that after the incident, he along with Dwarika Prasad came to the abadi of Bhatpurwa and when people in Bhatpurwa asked him the names of the assailants, he did not tell them and instead told them that he did not know their names. It is true that to the Court, he mentioned that on account of fear, he did not disclose the names of the assailants, but we are not prepared to buy this explanation of his, because in the F.I.R., which was lodged by Bechan P.W. 5, on the information furnished by him, neither the names of assailants are mentioned nor it is mentioned that on account of fear of accused persons, he did not name them.

It should be borne in mind that the conduct of a witness in not disclosing the names of assailants to persons whom he meets immediately after the incident has been frowned upon by the Apex Court, which has construed it as suggestive of his not witnessing the incident. In this connection, we would like to refer to two decisions of the Apex Court, namely:

(i) State of Orissa Vs. Mr. Brahmananda Nanda, ; and (ii) Babuli alias Narayan Bahera Vs. The State of Orissa, .

A perusal of paragraph 2 of State of Orissa Vs. Mr. Brahmananda Nanda, shows that the acquittal of the Respondent Brahmananda Nanda was sustained by the Apex Court because the solitary eye-witness of the incident, Chanchla (P.W. 6), did not mention the name of Brahmananda Nanda as the assailant for a day and a half. The explanation furnished by the prosecution, explaining her abnormal conduct, was that she did not disclose the name of the Respondent earlier on account of fear of the Respondent. The Supreme Court spurned the said explanation.

A perusal of paragraph 10 of Babuli''s case (supra), would show that the sole eye-witness of the incident Ghanshyam did not disclose the name of Babuli (the Appellant) or other accused to any one of the scores of people whom he had met until the F.I.R. was lodged about 20 hours after the occurrence. The Supreme Court held this to be an abnormal conduct and rejected the testimony of Ghanshyam.

In the instant case, the failure of Parsu Ram to disclose to people of Bhatpurwa the names of the assailants, specially when he was asked by them, and the absence of names of the assailants in the F.I.R., as also the reason therein that he did not name them on account of fear and his naming the assailants for the first time in his statement u/s 161, Code of Criminal Procedure which was recorded by the Investigating Officer sometimes after the F.I.R. had been lodged in our judgment, constitutes abnormal conduct, which renders his evidence, unworthy of acceptance.

Secondly, he categorically stated that after Dwarika Prasad had been dragged by the Appellants, from inside the room and brought to the verandah they assaulted him by kicks, fists and lathis. It is significant to mention that the evidence of Mr. V. K. Chopra P.W. 8, who medically examined Dwarika Prasad in his life time, shows that he only sustained two fire arm injuries (in para 5 we have extracted in entirety the injuries found on his person by Dr. Chopra). We may also mention that the post-mortem report also does not show that the deceased Dwarika Prasad sustained any typical blunt weapon injuries.

Thirdly, he categorically stated that after assaulting him and Dwarika Prasad, the Appellants tied them on cots, but neither his injury report nor that of Dwarika Prasad nor the post-mortem report of Dwarika Prasad, show any ligature mark or marks resulting from tying.

Fourthly, he candidly and categorically stated in his cross-examination that the Appellants inflicted three to four lathi blows on his person, out of which three were caused on his leg and one on his ear, but his injury report (we have extracted it in para 9) shows that he only sustained a solitary abraded contusion on his leg.

In our view, when the said infirmities are examined in the light of fact that being a servant of Dwarika Prasad, Parsu Ram is a highly interested witness and a victim himself, it becomes extremely unsafe to accept his testimony.

It appears that he and Dwarika Prasad were assaulted in darkness and could not recognise their real assailants.

It is true that he is a injured witness but it is well-settled that before the evidence of an injured witness can be acted upon, he has to pass the test of a truthful witness, a test which for reasons mentioned above, he has failed.

In this connection, we would like to advert to the ratio laid down by a Division Bench of this Court in paragraph 22 of the case of Vijay Shanker Misra and Ors. v. State 1984 ALJ 1316, wherein it has been observed thus:

...It is no doubt correct that if a witness is injured, then his presence on the spot at the time and place of occurrence is prima facie established but for basing conviction solely on the evidence of an injured witness, it is necessary that the inured witness must be held to be a wholly reliable witness. Where in a case there is the sole evidence of the injured witness against the accused and if it is shown that there is material infirmity and falsity in some part of his evidence, then it will not be at all safe to convict the accused solely on the evidence of the injured witness relying upon the eye-witness''s accounts given by him without independent corroboration by material evidence.

For the aforesaid reasons, in our view, testimony of Parsu Ram cannot be relied upon.

We now come to the dying-declaration of Dwarika Prasad. Since in para 6 we have detailed its substance, we do not want to burden our judgment by reiterating the details.

It is pertinent to mention that in it he has only named Appellant Riaz and not the other two Appellants and neither was he sent to identify them at a test parade.

In our view, the said declaration cannot even be relied against Riaz because therein he has categorically stated that Riaz inflicted on him lathi blows and the evidence of Dr. V. K. Chopra P.W. 8 (we have referred to it in para 5) shows that he did not sustain any blunt weapon injuries, and only sustained two fire arm injuries. It is pertinent to mention that the evidence of the autopsy surgeon Dr. Sailesh Chandra P.W. 1 also shows that the did not suffer any typical blunt weapon injury.

That apart, he has categorically stated that Riaz and his associates tied him and Parsu Ram to cots but neither the injury report of Parsu Ram nor his own injury report nor his autopsy report show any ligature mark or injuries which would corroborate the factum of their being tied.

Further, we find that although the evidence of Dr. Y. V. Chand (P.W. 9) show that prior to the recording of his dying declaration, he medically examined him and gave a certificate of fitness but neither it nor that of Suresh Chand P.W. 2 Tehsildar Magistrate, Bahraich, who recorded his dying declaration, shows that he (Dr. Y. V. Chand) was present while dying declaration was being recorded and after it had been recorded gave a certificate that the declarant was conscious while making it. It is pertinent to mention that we have perused the original dying declaration (exhibit Ka-18) and find that only a solitary certificate of fitness, which is appended on the top of the paper on which the dying declaration is recorded and which reads that declarant is in a fit condition to give the statement, has been given. It is common knowledge that in cases where the victim sustains serious fire arm injuries his condition changes minute to minute and in our view the probability that the declarant while giving his declaration lost consciousness cannot be ruled out.

The Supreme Court in the oft-quoted case of Khushal Rao Vs. The State of Bombay, , has in para 16 held thus:

...that in order to test the reliability of a dying declaration, the Court has to keep in view, the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night ; whether the capacity of the man to remember the fact stated, had not been impaired at the time he was making the statement, by circumstances beyond his control,....

In our view, the complete absence of lathi injury and ligature mark on the person of the declarant, and the latter (ligature mark) on that of Parsu Ram shows that the declarant and Parsu Ram were assaulted in darkness and could not recognise their real assailants.

For the said reasons, we feel that it would not be safe to place reliance on the dying declaration of Dwarika Prasad, even against Appellant Riaz. We have already mentioned in paras 6 and 17 that Appellants Latif and Idris are not named in it.

For the said reasons, both the ocular account furnished by Parsu Ram P.W. 4 and the dying declaration of Dwarika Prasad do not inspire any confidence and since there is no other evidence to connect the Appellants with the crime, they have to be acquitted.

In the result, we allow this appeal ; acquit the Appellants for offences punishable under Sections 302/34, I.P.C. and 323/34, I.P.C. ; set aside their sentences thereunder ; direct that they need not surrender to their bail ; and their bail bonds shall stand cancelled and sureties discharged.