Bhikha & Others Versus State of U.P. [CRIMINAL APPEAL No. – 464 of 1982]
1. The present criminal appeal has been preferred against the judgment and order dated 5.6.1982 passed by the III Additional Sessions Judge, Lucknow in Sessions Trial number 298 of 1979 (State versus Bhikha and three others) under section 302/34 of the Indian Penal Code (hereinafter referred to as, the IPC), Police Station Mohanlal Ganj, District Lucknow, whereby the appellant no. 1- Bhikha was convicted under section 302 IPC simplicitor and the other co-accused persons namely Ram Khelawan, Avantika and Ramphal were convicted under section 302 read with section 34 of IPC. All the aforesaid appellants were sentenced to undergo rigorous imprisonment for life.
2. We have heard Sri Nagendra Mohan, learned counsel for the appellants and Sri Umesh Verma, learned Additional Government Advocate appearing for the State respondents and perused the record meticulously.
3. According to the prosecution case, on 01.9.1979, an FIR was lodged under section 302 IPC by the complainant, namely Ram Adhar, PW- 1 mentioning therein that on the ocassion of marriage of one Raj Rani, Bhikha i.e. appellant no. 1, had fired shot with his country made pistol, which had hit to one of the Barati causing him injury. Report of that incident was lodged by one Sia Ram (not examined), cousin brother of Ram Adhar PW-1 against the accused appellant no. 1 Bhikha, thus, a case was registered under section 307 Cr.P.C., due to which, Bhikha was keeping enmity with the complainant Ram Adhar and his other relatives. The deceased Phool Chand was originally a resident of village Sarwan Nagar, Police Station Banthra,District Lucknow. Smt. Sarjoo Dei, a widow having no issue (not examined) was the cousin sister (maternal uncle’s daughter) of Ram Adhar PW1. She had brought up Phool Chand (deceased) since his childhood and given her property to him. Due to the said reasons, appellant no. 1 namely Bhikha was keeping enmity with the deceased.
4. It is further stated in the F.I.R. that on the fateful day i.e. 01.09.1979, at about 11 A.M., the deceased Phool Chand accompanying the complainant were returning back from their fields. The Phool Chand deceased was a bit ahead of the complainant. They had to pass through the house of Bhikha appellant no. 1. When the deceased was near to the house of the Bhikha, all the accused appellants i.e. Bhikha armed with gun, Ram Khelawan and Ram Phal carrying Lathi the Avantika having Danda came out of the house of Bhikha and pounced upon the deceased dragging him in the house of Bhikha by exhorting kill him today.
5. On hearing cries of Phool Chand (deceased) and Ram Adhar PW-1, witnesses Ram Karan and Bhajan Lal (both not examined) reached on the spot and by that time Smt. Jamuna PW-2 and Smt. Raj Rani (not examined) niece of Ram Adhaar had also reached to the spot. They saw the alleged incident through window and door of the house of Bhikha. While Phool Chand-deceased was resisting, the accused persons were beating him and thereafter, Ram Khelawan, Avantika and Ramphal caught hold of Phool Chand (deceased) and Bhikha fired on him. In the meantime, Ram Khelawan came out and hit on the lower limb of Smt. Jamuna and thereafter the accused persons ran away.
6. After investigation, a charge sheet was filed on 04.10.1979 against the present appellants. Thereafter the charge against the appellant no. 1 Bhikha was framed under section 302 IPC and charge against the rest of the appellants was framed under Sections 302 read with Section 34 IPC in furtherance of common intention with Bhikha to commit the murder of Phool Chand.
7. The prosecution, in order to bring home the accusation against the appellants had produced two prosecuting witnesses of fact namely Ram Adhar, eye witness/complainant as PW-1 and Smt. Jamuna claiming herself an injured eye witness as PW-2. The prosecution has also produced as many as five formal witnesses namely Dr. R.S. Chaudhary (PW-3), who medically examined the injured witness PW-2, Dr. Ved Prakash Gupta, who conducted the post mortem of deceased Phool Chand as PW-4, Arshad Ali, the Head Constable, who proved the chik FIR as PW-5, Bheem Singh Tomar as PW-6 and Raj Kumar, Constable, who brought the dead body to mortuary for post mortem as PW-7.
8. As documentary evidences, the prosecution has proved the copy of FIR as Ext. Ka-1, Post Mortem Report as Ext. Ka-3, General Diary as Ext.Ka-5, Chitthi Majroobi as Ext. Ka-6, Special Report sent to the C.O. to be forwarded to the Magistrate on 01.09.1979 as Ext. Ka-7, Inquest Report as Ext. Ka-8, dead body diagram as Ext. Ka-9, dead body challan as Ext. Ka-10, sample seal as Ext. Ka-11, the Baniyan and blood stained bed sheets as Ext. Ka-14, Earth as Ext. Ka-15, site plan as Ext.Ka-16, Charge sheet as Ext. Ka-17.
9. The trial Court has mainly relied on Ext. Ka-1 (FIR), Exhibit Ka-8 (Inquest Report) and Ext. Ka-16 (Site Plan) in its judgment.
10. After closure of the evidence of the prosecution, the statement under section 313 of Cr.P.C of all the four accused persons were recorded wherein they denied their involvement in the alleged incident and claimed that they have been falsely implicated.
11. All the accused persons were committed to the Court of Sessions by the Chief Judicial Magistrate, Lucknow vide its order dated 13.11.1979.
12. The trial court, on appreciation of evidence placed before it, had found that the incident was of the broad daylight and the eye witnesses had seen the occurrence and under such circumstances, presence of motive is not material. It has further been held that no lacuna or infirmity was there in the statement of Smt. Jamuna and held that she has, in a most natural way, described in minutest details about the manner in which the incident took place and all these facts have mostly been corroborated by Ram Adhar PW-1.
13. The trial court did not accept the submissions raised by the learned counsel for the accused appellants that the story of assaulting the deceased Phool Chand using knife by Avantika has not been mentioned either in the FIR or in the statements recorded under section 161 Cr.P.C and it was stated for the first time in their examination in chief. The trial court observed that defence had specifically put questions to Ram Adhar, who satisfactorily replied the same in his cross-examination and this clinches the evidence against the accused persons and shows that the accused appellants were also conscious of this fact, otherwise, they would not have been asked this question from the witnesses.
14. It is further held by the learned trial court that non disclosure of the aforesaid fact in detail in written report also does not lead us to infer about the falsity of it. An F.I.R is a document, which sets the prosecution machinery in motion. The evidence of the case was proved against the accused appellants, thus, the trial court convicted and sentenced them as aforesaid.
15. The first submission advanced on behalf of the appellants is that in the FIR, the role of the lathi was assigned to other accused persons except the appellant no.1, Bikha, who had been assigned the role of shot from his firearm, due to which, the deceased Phool Chand died. For the first time, the story was set up by the prosecution assigning the role of assault by using knife by co-accused/appellant Avantika during the examination in chief and in the cross-examination. If Avantika assaulted the deceased by knife, the same ought to have been mentioned either in the FIR or at the time of statement given under section 161 of Cr.P.C and the same amounts to improvisation of case at the stage of examination in chief and during the cross examination to falsely implicate the present appellants. Therefore, the prosecution at the stage of evidence has overturned the very premise of the case that goes to vitiate the trial and the conviction and sentence for life imprisonment ruled by the trial court.
16. Learned AGA, on the other hand has submitted that section 3 of the Evidence Act, 1872 (hereinafter referred to as, the Act of 1872) defines evidence, which includes all statements, which the court permits or requires to be made before it by witnesses in relation to matters of fact under enquiry, such statements are called oral statements. The oral statements given by the prosecution witnesses before the court are bound to read as a whole for deriving a conclusion.
17. It is further submitted that as per the charge framed against the other co-accused persons except Bhikha i.e. under section 302 read with section 34 IPC i.e. common intention of the accused persons to kill Phool Chand and relied on the FIR which makes out the case against the appellants under section 302 read with section 34 IPC and any addition at the stage of evidence may have a fall out on the memory of the witness due to upsetting circumstances but it does not vitiate the trial altogether. In support of his submissions, learned AGA relied upon the judgement rendered by Hon’ble Supreme Court in the case of Harbans Kaur and another Vs. State of Haryana reported in 2005 SCC (Cri) 1213.
18. Learned AGA has further submitted that it is not improvisation by the prosecution rather it is an evidence recorded before the court and as per Section 3 of the Act of 1972, it is admissible and does not falsify the prosecution story. In support thereof, he placed reliance upon the judgement of the Hon’ble Supreme Court rendered in the case of Maloth Somaraju Vs. State of Andhra Pradesh reported in (2011) 3 SCC (Cri) 531. Reliance has also been placed on the case of Prabhu Dayal versus State of Rajasthan reported in 2018 2 JIC 642 (SC).
19. After hearing the learned counsel for the respective parties, the position which emerges out is that the FIR is not an encyclopedia of entire incident and need not contain an exhaustive account of the incident though it is correct that such a significant thing was left to be mentioned in the FIR and during the statement recorded under Section 161 Cr.P.C. but at the same time, which cannot be denied as per the medical evidence that deceased had got one injury by knife. But it is to be seen how this fact alone can demolish the prosecution case in the background of other facts and circumstances on the record of the case.
20. By not mentioning or disclosing about the assault by knife by Awantika either in the FIR or in the statement recorded under Section 161 Cr.P.C. and PWs for the first time stated before the trial court, this omission may amount to contradiction and may raise a doubt about the veracity of the statement of the witnesses. It has further been revealed from the records that there are some contradictions here and there in the testimony of PW-1 and 2.
21. It is the established principle of law that the primary object of the FIR is to set the criminal investigation into motion. It may not set out the case in every minute detail with unmistakable precision. It is not the encyclopedia of all the facts and circumstances of the case on which prosecution relies. The FIR is, that is why, not considered a substantive evidence and its evidentiary value is limited to corroboration and contradiction of the evidences. In the present case assault took place inside the house, therefore, in case it was missed by the witnesses about the knife blow cannot be attached undue weight so as to demolish the whole prosecution story, which is corroborated by other facts and circumstances on the record.
22. It has been held by Hon’ble Apex Court in the case of Gangadhar Behera Vs. State of Orissa reported in 2002 8 SCC 381 that principle of false in one thing, false in everything is not applicable in India and it is the duty of the Court to separate the grain from the chaff. The relevant portion of the said judgment is being quoted hereunder for ready reference:-
” 15. To the same effect is the decision in State of Punjab v. Jagir Singh [(1974) 3 SCC 277 : 1973 SCC (Cri) 886 : AIR 1973 SC 2407] and Lehna v. State of Haryana [(2002) 3 SCC 76 : 2002 SCC (Cri) 526] . Stress was laid by the accused-appellants on the non-acceptance of evidence tendered by some witnesses to contend about desirability to throw out the entire prosecution case. In essence prayer is to apply the principle of “falsus in uno, falsus in omnibus” (false in one thing, false in everything). This plea is clearly untenable. Even if a major portion of the evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of a number of other co-accused persons, his conviction can be maintained. It is the duty of the court to separate the grain from the chaff. Where chaff can be separated from the grain, it would be open to the court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of a particular material witness or material particular would not ruin it from the beginning to end. The maxim “falsus in uno, falsus in omnibus” has no application in India and the witnesses cannot be branded as liars. ……… It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a court may apply in a given set of circumstances, but it is not what may be called “a mandatory rule of evidence” ……. The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because a witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be sifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. (See Sohrab v. State of M.P. [(1972) 3 SCC 751 : 1972 SCC (Cri) 819] and Ugar Ahir v. State of Bihar [AIR 1965 SC 277 : (1965) 1 Cri LJ 256] .) An attempt has to be made to, as noted above, in terms of felicitous metaphor, separate the grain from the chaff, truth from falsehood. Where it is not feasible to separate the truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto. (See Zwinglee Ariel v. State of M.P. [AIR 1954 SC 15 : 1954 Cri LJ 230] and Balaka Singh v. State of Punjab [(1975) 4 SCC 511 : 1975 SCC (Cri) 601 : AIR 1975 SC 1962] .) As observed by this Court in State of Rajasthan v. Kalki [(1981) 2 SCC 752 : 1981 SCC (Cri) 593 : AIR 1981 SC 1390] normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person.”
23. Here in the present case, version in the FIR or at the time of framing of the charges and up till cross-examination, the name of the accused persons, the time, the place of occurrence of incident and the role to the appellants/convicts were consistent throughout, except role of assault by knife added along with lathi has been assigned to Awantika-accused appellant later at the time of exam-in-chief. Otherwise, the evidence of witnesses including an injured eye-witness had also been corroborated with the documentary evidence.
24. The second submission raised by the learned counsel for the appellants is that PW-2 was introduced in order to support the case of prosecution and shown her as an injured witness, whereas, she was neither present nor received any injury.
25. It is further submitted that if she was assaulted by lathi by one of the accused appellants then why the medical examination was conducted with delay, especially under the circumstance, when the primary health center is hardly 1 km from the police station. Both the witnesses are relative of the deceased, hence, they are interested witnesses. They could not be relied blindly and more caution was required, which has not been taken by the learned trial court.
26. On the other hand, learned AGA has submitted that there is no delay in the medical examination of the injured witness and injury was found which corroborates with the prosecution story and confirms that PW-2 was present at the time of occurrence of the incident, as an eyewitness.
27. It is further submitted that merely the fact that the prosecution witness is the relative and their evidence or testimony cannot be relied is a misconceived submission. In support of his submission, he relied upon the judgment passed by the Hon’ble Supreme Court in the case of State of Rajasthan Vs. Chandgi Ram reported in 2014 CRLJ 4571.
28. After hearing the learned counsel for the parties, it has come out from the records that the delay in conducting the medical examination has duly/properly been explained. The incident was of about at 11 A.M. and the FIR was lodged at about 1.30 P.M. and the medical examination was conducted at 5 P.M. and the delay of few hours was for the reason that doctor who had to conduct the medical examination was not available and the said reason does not make the prosecution story doubtful. The medical examination was held without there being any delay and whatever delay, as alleged, has been explained properly.
29. As far as submissions relating to that the prosecution witnesses were the near relatives of the deceased, thus, the credibility of them for weighing the truthfulness is very less and shall not be relied, is also not tenable. It is a settled law that credibility of the witnesses, who are near relatives or family members, his/her version should be tested based on his/her version and they cannot be termed as interested witnesses. The para no. 17 of the case of Chandgi Ram (supra) is relevant, which reads as under:-
“It was contended that all the witnesses were family members of the deceased and being interested witnesses, their version cannot be relied upon in toto. When we consider the same, we fail to understand as to why the evidence of the witnesses should be discarded solely on the ground that the said witnesses are related to the deceased. It is well settled that the credibility of a witness and his/her version should be tested based on his/her testimony vis-a-vis the occurrence with reference to which the testimonies are deposed before the Court. As the evidence is tendered invariably before the Court, the Court will be in the position to assess the truthfulness or otherwise of the witness while deposing about the evidence and the persons on whom any such evidence is tendered. As every witness is bound to face the cross-examination by the defence side, the falsity, if any, deposed by the witness can be easily exposed in that process. The trial Court will be able to assess the quality of witnesses irrespective of the fact whether the witness is related or not. Pithily stated,if the version of the witness is credible, reliable, trustworthy, admissible and the veracity of the statement does not give scope to any doubt, there is no reason to reject the testimony of the said witness, simply because the witness is related to the deceased or any of the parties. In this context, reference can be made to the decision of this court reported in Mano Dutt and another vs. State of Uttar Pradesh – (2012) 4 SCC 79. Paragraph 24 is relevant which reads as under:-
“24. Another contention raised on behalf of the appellant-accused is that only family members of the deceased were examined as witnesses and they being interested witnesses cannot be relied upon. Furthermore, the prosecution did not examine any independent witnesses and, therefore, the prosecution has failed to establish its case beyond reasonable doubt. This argument is again without much substance. Firstly, there is no bar in law in examining family members, or any other person, as witnesses. More often than not, in such cases involving family members of both sides, it is a member of the family or a friend who comes to rescue the injured. Those alone are the people who take the risk of sustaining injuries by jumping into such a quarrel and trying to defuse the crisis. Besides, when the statement of witnesses, who are relatives, or are parties known to the affected party, is credible, reliable, trustworthy, admissible in accordance with the law and corroborated by other witnesses or documentary evidence of the prosecution, there would hardly be any reason for the Court to reject such evidence merely on the ground that the witness was a family member or an interested witness or a person known to the affected party.” (emphasis added).
30. The prosecution witnesses cannot be discredited merely on the ground that they are relative, they may still not be termed as interested witnesses in all cases. Their statements has also to be scrutinized on merits and if found reliable, their testimony can be believed and acted upon. It is true that sometimes there are contradictions, omissions and subsequent embellishments in the statement of prosecution witnesses, but it is not necessary that they must be disbelieved in toto, irrespective of other facts and circumstances of the case. Such omissions and embellishments can well be explained by other corroborative evidence on the important parts of the prosecution story.
31. In the present case the evidence of PWs definitely stating that the deceased was dragged inside the house and was assaulted therein is heavily corroborated by the fact that the dead body was recovered from inside the house of the appellant namely, Bhikha, which fact is not denied by the accused persons rather stands admitted, it out-ways some contradictions and omissions here and there or any embellishments subsequently made by the witnesses. Their testimonies are well corroborated on other vital facts. If a witness is found to have made some embellishments and contradictions, it does not follow that his statement is to be disbelieved as a whole, as argued by the learned counsel for the appellants in view of the principle of “falsus in uno, falsus in omnibus” (false in one thing, false in everything). The said principle is not applicable in the present case, as it has already been discussed earlier.
32. In the case in hand, the body was found from inside the house of Bhikha-appellant no. 1 and in defense, the appellants come with a case that they were not present at home at the time of occurrence of the incident and stated that the deceased-Phool Chand would have been assaulted by some person and on seeing the house of the Bhikha-appellant no. 1open, the deceased-Phool Chand entered into the house.
33. In so far the submission of learned counsel for the appellants that the deceased may have entered in the house finding it open, is not tenable. As per the defence case that no one was present at the home then why the doors were opened.
34. So far as the submissions raised by the learned counsel for the appellants that someone else would have assaulted the deceased and he ran into the house and died, is also not tenable. As per the ante-mortem injuries found on the body of the deceased, it is clear that the deceased would have been bleeding profusely but there was no trail of blood found and according to the testimony of PW-6/Investigating Officer, only blood was found near the body of the deceased recovered from inside the house of Bhikha-appellant no. 1. The ante-mortem injuries found on the body of the deceased are as follows:-
1. Gunshot wound 2½ cm X 1½ cm X bone fractured underneath ½ below the medial canthus of right eye. Direction obliquely downward and
posteriorly. Blackening & pg. torn and burning present. Wadding removed from the wound. Only entry wound present.
2. Gunshot wound 1.5 cm X1 cm X chest cavity deep on the right side of front of chest 6 cm below the right nipple at 4’0 clock position.
4. Abraded contusion multiple in numbers in an area of 8 cm X5 cm on tip of left shoulder joint.
5. Abraded contusion 4 cm X2 cm on the front of left elbow joint.
6. Abraded contusion multiple in number in an area of 10 cm X 5 cm on th front of left knee and lower 1/3 of left thigh 28 cm below the anterior
superior illiac spine.
7. Abraded contusion 2 cm X 1 cm on the back of middle 1/3 of right leg 15 cm below the back of right knee joint.
35. The Hon’ble Supreme Court in the case of Trimukh Maroti Kirkan Vs. State of Maharashtra reported in 2006 10 SCC 681 has held that where an offence like murder is committed in secrecy inside a house then there will be a corresponding burden on the inmates of the house to give cogent explanation. The relevant extract of the said judgment is being quoted hereunder:-
“15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.”
36. Thus, recovery of body from inside the house of the Bhikha i.e. appellant no. 1 is a clinching circumstance for which no plausible and reasonable explanation was given by the appellants, as discussed hereinabove.
37. So the recovery of body from inside the house of Bhikha-appellant no. 1 overweigh all other omission or subsequent embellishments, as discussed earlier.
38. In a nut shell, the defence put forth by the appellants does not lead us to take a different view from as taken by the trial court.
39. The criminal appeal is accordingly dismissed.
40. The record reveals that during pendency of the present appeal, the appellant nos. 1 and 4 namely, Bhikha and Ram Phal had died and as a consequence thereof, the appeal was abated on their behalf vide order dated 14.12.2018. The proceedings survive on behalf of the appellant nos. 2 and 3 namely Avantika and Ram Khelawan, who are presently on bail.
41. As a consequence of the dismissal of the present appeal as above, the bail bonds submitted by the appellants nos. 2 and 3 namely Avantika and Ram Khelawan are hereby cancelled and the sureties are discharged.
42. The appellant nos. 2 and 3 namely Avantika and Ram Khelawan may surrender before the Chief Judicial Magistrate, Lucknow within a period of two weeks from today failing which the Chief Judicial Magistrate, Lucknow shall proceed to take them into custody forthwith without any delay to serve the remaining sentence in terms of the judgment and order dated 05.06.1982 passed by the learned trial court.