N.N. Sharma, J.@mdashThere are there Appellants in this appeal; Radhey Kishan and Tika Ram, Appellants are own brothers. Jhallu, "Appellant is their next door-neighbour.
2. Victim Suraj, aged about 45 years was eldest brother of Shyam, informant, P.W. 1; Ajodhya, P.W. 2, is younger brother of deceased Suraj but elder to Shyam, informant.
3. Parties are Lodhies. Enclosure of Appellants lay infront of their house towards north as shown in siteplan Ext. Ka-4. It appears that village pathway ran eastwest delimiting this enclosure; some waste land was lying across this pathway towards north which had been enclosed by Appellants after blocking the passage as shown by letter A in said siteplan.
4. The enclosure of victims adjoined this enclosure of Appellants towards west and was accessible through the aforesaid pathway only which had been blocked on 22-11-1980 at about sun set. Village Abadi lies towards east of the said enclosure of Appellants. There is public way running north-south bifurcating at letter B for the enclosures aforesaid. This way meets the thoroughfare running east-west towards south of village Abadi at trivium D. Residential houses of victims lie towards east-north of letter D as shown in the said site plan.
5. Ajodhya was driving his bullock-cart laden with sorghum ear for storing it in his enclosure on that evening. He protested about the obstruction in his way and requested the Appellants to remove it; Appellants were adamant and vituperative; an altercation took place amongst parties; Appellants were infuriated and pursued the bullock-cart of Ajodhya who diverted the same towards south homewards; Jhallu was armed with Pharsa; Radhey Kishan with axe and Tika Ram with Lathi; they over took Ajodhya on the trivium and dealt blows on him near the drain; his out cry attracted to the scene of occurrence deceased Suraj, wife of Suraj Smt. Ramkali, P.W. 3, and Shyam informant, P.W. 1, who ran to his rescue. The brunt of attack was sustained by Suraj who received heavy Pharsa and axe blows also and met an instantaneous death; Shyam also did not go unscathed.
6. Dead body of Suraj was removed to his house; informant made way for police station Ata which was at a distance of 20 K.M. from the scene of occurrence. First Information Report Ext. Ka 2 was drawn in the next morning at 4.30 A.M. by head-constable Balbir Yadav in presence of Investigator Param Lal Verma, P.W. 4, who happened to be present when FIR was drawn and signed the same. He took up investigation forthwith; informant and head-constable were interrogated at police station. He reached the scene of occurrence at about 6 A.M. and held an inquest on the dead body vide inquest memo Ext. Ka 3; dead body in sealed up condition was sent to mortuary, Jalaun through constables Ram Gopal and Jageshwar Prasad.
7. Post mortem was conducted by Dr. R.C. Singh PW 6, on 24-11-1980 at mid day. Deceased was found of average built, aged about 45 years; Rigor Mortis has passed off and blisters were present on the body.
8. Following ante mortem Injuries were detected:
1. Incised wound size 11 cm. x 4 cm. x back bone right side of neck cutting the sternomastoid muscle.
2. Incised wound 5 cm. x 1 cm. right side of neck above left ear over head left side.
3. Abrasion 3 cm. x 1 cm. horizontal and also spinal cord, in the middle of arm outer side.
4. Abrasion 3 cm. in diameter deep oblique 7 cm. head.
5. Abrasion 2 cm. in diameter left upper arm thigh front side.
9. The internal examination disclosed that heart and stomach were empty. The large and small intestines were distended due to gases of putra faction and semi digested food and faecal matter. Bladder was empty. Doctor opined that death was due to shock and haemorrhage as a result of ante mortem injuries vide post mortem report Ext. Ka. 11. Duration of death was found as about two days and coincided with time of occurrence as given by the doctor in his deposition.
10. Ajodhya was examined by doctor R.C. Awasthi, PW 5, on 23-11-1980 at about 4.30 P. M. Following injuries were detected:
1. Swelling 4 cm. x 2 cm. with an abrasion .5 X .5 cm. on right parietooccipital region of skull crust present. Patient is fully conscious and responding to commands.
2. Lacerated wound on left parietal region of scalp 4-1/2 cm. x 1/2 cm. x 1/2 cm. margins irregular.
3. Swelling 4.2 cm. x 2 cm. on right side of frontal region of skull.
4. Swelling 7 cm. x 5 cm. on outer aspect of right forearm, no bony abnormality of movements.
5. Abrasion 1.5 cm. x 5 cm. on post aspect of right forearm 7 cm. below elbow crust.
6. Swelling 6 cm. x 3 cm. on dorsum of right hand Advised X-ray right hand with wrist.
7. Abrasion on left forearm 3 in number laterally near wrist each measuring 0.5 cm. x 0.5 cm. in size crust fine.
8. Abrasion on out aspect of left shoulder 1 cm. x 0.5 cm. crust positive.
9. Abrasion on left leg 3 cm. below knee inner side 1 cm. x .3 cm. crust positive.
11. All the injuries were simple: injuries 1, 2, 3, 4 and 6 were caused by some blunt object and injuries 5, 7, 8 and 9 were caused by force of friction: duration was about one day vide injury report Ext. Ka 9.
12. Informant Shyam was examined by the same doctor on the same evening at the same place at about 4.45 P. M. and following injuries were detected:
1. Abrasion 3.1/2 cm. x 1/2 cm. on middle part of left forearm crust positive.
2. Abrasion 7 cm. x 1/2 cm. linear on the middle of ant, part of left leg crust positive.
13. Both injuries were simple caused by force of friction. Duration was about one day.
14. Doctor opined that both these injuries could have been caused on 22-11-1980 at about sun set.
15. After usual investigation Appellants were found absconding: chargesheet Ext. Ka 8 was submitted against them on 8-12-1980.
16. Appellants denied their participation in the occurrence and alleged their implication to ill-will.
17. No evidence was adduced in defence.
18. Ocular testimony consisted of statements of injured witnesses Shyam, PW 1, his brother Ajodhya, PW 2 and his sister-in-law Smt. Ramkali, PW3. Smt. Ramkali was disbelieved by learned trial Judge but informant and Ajodhya were believed by him and so conviction and sentences were recorded.
19. We have heard Sri Rajeshji Verma, learned Advocate for Appellants and Sri Jitendra Prakash for State and perused the record.
20. Sri Rajeshji Verma, attacked the judgment of learned trial Judge on following grounds.
21. It was contended that occurrence took place on 22-11-1980 at about sun set, FIR was lodged on the next morning at about 4.30 A.M. Informant Shyam PW 1, conceded that he made way for police station at about sun set; he reached the police station at mid-night; his report was not taken down during night but on the next dawn. He was kept sitting at the police station. He further conceded in cross-examination that during this time police went to the village and it was on their return that his report was taken down; so version laid in FIR was doubtful
22. It appears that learned trial Judge has explained this delay in FIR by observing that the questions put to Shyam by learned cross-examiner were vague: he was led away in cross-examination: he frankly conceded that he reached the police station at mid-night: had he chosen to be dishonest he could have urged his time of arrival at the police station at about 4.30 A.M. had police colluded with him the report could have been ante timed at 12 mid-night: Shyam never conceded that he had any deliberation with the sub-Inspector who investigated the case nor in his cross-examination alleged that the investigator went to his village and it was on his return that the report was taken down. He was not definite about the person who had gone to any village during the interval: he did not concede that investigator visited the venue of occurrence and thereafter this report was taken down and so the FIR does not suffer from any inordinate delay nor was the result of any concoctions or confabulations.
23. These observations of learned trial Judge are not lightly discardable. A mere look at deposition of Shyam shall go to disclose that he had thumb marked the same; he is an illiterate rustic who could have been easily led away in cross-examination by learned cross examiner. The distance of police station from the scene of occurrence was 20 K. Ms. ; informant had lost his eldest brother and his another brother was lying seriously injured when he made way for police station. Under such circumstances on account of terror and night fall he could not have been quick in lodging the report his arrival at the police station on that wintery night was at dead of night and so local police could not have quickly attended him as soon as he reached there to prepare a prompt FIR. It is improbable to believe that investigator could have taken such a keen interest in his version that he could have gone on the jeep to cover this long distance of 20 K.M. and then timely return by 4.30 A.M. Even Ajodhya PW 2 made a definite statement that investigator reached his village on that morning and stayed there till noon. He had no deliberations with informant.
24. Had learned cross examiner pinned faith on this infirmity he should have cross examined Sri Param Lal Verma, PW 4, Investigator on this point-Investigator testified on oath that he was present at the police-station when this report was taken down at about 4.30 A.M. by Sri Balbir Singh Yadav. Balbir Singh Yadavhad not been examined in this case. Not a single question was put to investigator to elicit his supposed visit at the venue of occurrence prior to the preparation of FIR. Investigator alleged that he interrogated the informant Shyam and head-constable at the police-station and thereafter he proceeded to the scene of occurrence alongwith informant and police force and reached there at about 6.15 A.M. Thus his statement is perfectly consistent with the testimony of informant and Ajodhya, PW 2.
25. So the delay, if any, in lodging the report is well explained in this case. There is nothing on record to show that this FIR was the result of any concoctions or confabulations. Had it been so this illiterate rustic informant could have reached the police station with a written report and could not have taken the risk of dictating the report orally.
26. Moreover, the mere delay in lodging the report is not sufficient to discard the prosecution story under the aforesaid circumstances See Jadunath v. State of U.P. 1971 SCC 276 and
27. Even assuming for the sake of argument that investigator inspected the spot on oral information supplied by informant and thereafter got the FIR drawn it is not sufficient to discard the prosecution story. Section 157 of the Code of Criminal Procedure prescribes the procedure in matters in which investigation can be initiated either on information or otherwise. In
28. The next contention put forward on behalf of Appellants was that Ajodhya, PW 1, testified that all the assailants dealt eight or nine blows with their respective weapons on him; he fell down from the bullock-cart; he sustained nine injuries and his clothes were smeared with blood: blood also fell down on the ground.
29. Learned Advocate for Appellants further pointed out that Ajodhya conceded his strained relationship with Balkhandi and Shambhu, co-villagers in connection with a transaction about holding which victim wanted to purchase from Shambhu and Balkhandi: the Appellants were falsely incriminated by Ajodhya and informant on account of that ill will as they thought that transaction amongst victim and Balkhandi and Shambhu fell through on the prompting of Appellants.
30. In this connection also learned trial Judge pointed out that the testimony of Ajodhya was reliable he sustained serious injuries No. 1 to 3 on parietal region of scalp, etc. other injuries were sustained by him on non-vital parts of his body. It did not stand to reason that Ajodhya could have exposed his vital parts of the body viz. skull to receive injuries in order to become an injured witness in this case to support the prosecution story. He did not testify that all the blows dealt by each assailant landed on his person. There is cogent evidence on record to show that Suraj sustained Pbarsa and axe and lathi Injuries on his person it is possible that allegation of Shyam that he also sustained Pharsa injury on his person although the whole blade did not fall on him but its corner only hit him may be an improvement, yet the injuries sustained by Shyam and Ajodhya as detailed above are fully consistent with the prosecution story about all the three brothers having sustained injuries during the same occurrence on that evening.
31. Assuming for the sake of argument that Ajodhya exaggerated the nature of weapons and number of injuries inflicted on him; that itself cannot negate his presence during the occurrence. Ajodhya had nine injuries on his person as detailed above: he testified that his blood fell on his clothes; his shirt and singlet which were blood-stained were also seized by the Investigator vide seizure memo Ext. Ka. 3 attested by Narayan Dass and Mool Chand.
32. According to medical reports and deposition of doctors as laid above all the three brothers sustained their injuries at time of occurrence. There is not a whispher in the statements of Appellants to show that theses injured did not receive their injuries on that evening; Appellants in their statements never alleged about their implication at the instance of Balkhandi and Shambhu. It also looks improbable to believe that these injuries spared Balkhandi and Shambhu to falsely nominate the Appellants as the authors of their injuries without any rhyme or reason.
33. Thus the statements of injured in this case are not lightly discardable on account of any exaggerations in the number or nature of their injuries. In
Falsus in uno falsus in omnibus is not a sound rule for the reason that hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishments. In most cases, the witnesses when asked about details venture to give some answer, not necessarily true or relevant for fear that their evidence may not be accepted in respect of the main incident which they have witnessed but that is not to say that their evidence as to the salient features of the case after cautious scrutiny cannot be considered....
34. In
35. Sri Rajeshji Verma, learned Advocate for Appellants further attacked the prosecution evidence about the location of the enclosure of victims and the passage of the bullock-cart which was alleged to have been obstructed on that evening by the Appellants.
36. In this connection it was pointed out that both the injured who were believed by learned trial Judge were badly confused in cross-examination about location of this enclosure and the dusty road.
37. Shyam PW 1, testified that in the enclosure of Jhallu there were old bamboo clumps. The dram was towards south of the enclosure and not towards north. He could not give the time of occurrence but alleged that it was prior to sun set; there is pathway infront of the enclosure of Babu: he denied that the bullock-cart came from that Pathway; he further stated that the way was towards east of the enclosure of Babu; the bullock-cart was not coming from that way; bullock-cart came from the way adjoining the enclosure of Mool Chand. House of Gopi was towards west of the enclosure of Jhallu. There was no way towards west of the house of Gopi. Thus the contention was that according to this witness there was no passage running north-south nor the bullock-cart came from such passage.
38. Learned Advocate for Appellants further referred to the statement of Ajodhya and pointed out that he conceded that there is jungle towards west of enclosure of Jhallu and abadi towards east: the wall of the enclosure of Jhallu was about 2 1/2 cubits high.
39. Learned advocate for Appellants further referred to the earlier portion of deposition of Ajodhya recorded at page 5 in which he conceded that his filed of sorghum crop was towards south of village Abadi; the way from that field inside the village was from north to south; on that day he had already brought two cart loads; he again alleged that he was all alone on the cart when he brought the same.
40. It was further pointed out that about blocking of the passage Ajodhya testified that Jhankhar (wooden fence) was fixed on the way towards west of the tamarind tree. Enclosure of Babu, son of Jiya Lal was towards west of the enclosure of Jhall. There is a way towards west of the enclosure of Babu running towards south. He did not know if he was carrying his cart on that day along that passage or not.
41. Thus the contention was that on these admissions the entire prosecution version was simply a cock and bull story which was a painter to the occurrence having taken place elsewhere in some dark hour of night.
42. It is not possible to subscribe to this view. Statements of witnesses are to be read as a whole and not piece meal. It has been 6hown above that Shyam is an illiterate rustic who did not accompany Ajodhya while Ajodhya had an altercation with the Appellants about blocking of the passage; he was simply drawing on his imagination when he related incident prior to his reaching the trivium where he came by his injuries. It is further significant to note that none of the brothers had any idea of the directions. The house of Mool Chand or the tamarind tree have not been shown in the site plan Ext. Ka-4 nor their location was got fixed through cross-examination of investigator by learned cross-examiner who cross-examined these witnesses with reference to the said house and tree. Shyam wrongly alleged the house of Gopi to lie towards west of the enclosure of Jhall although the house of Gopi lies towards east of the said enclosure; similarly Ajodhya, P.W. 2 in his statement prevaricated about location of the passage when be was questioned with reference to directions. He wrongly alleged that this passage ran towards west of enclosure of Babu, son of Jiyalal upto south. That enclosures of Babu lies towards north-east of enclosure of Jhallu. But Ajodhya alleged that that enclosure lay towards north-south of enclosure of Jhallu which was impossible and simply betrayed the utter ignorance of the deponent about the directions. It appears that when he was heckled in cross-examination by learned cross-examiner he simply got confused and urged that he could not tell the way by which he brought the bullock-cart on that day.
43. Learned trial Judge observed that learned cross-examiner was deftly cross-examining these rustics by putting vague questions. It is a matter of common experience that witnesses under pressure of cross-examination got confused and say all kinds of things without realizing their significance. Such art of "X-bamboozling a witness has attained a high degree of perfection as was observed in Umar Daraz Italie v. Nihal Singh and Anr. reported in 1965 AWR 489. Had learned cross-examiner been fair he could have ascertained the location of the enclosure and the village pathway from investigator who had seen the scene of occurrence and could have vividly described the same. The sketh map prepared by him and vouched to be accurate and is clearly admissible so far as it indicates the location of the enclosure and the pathway vide Tori Singh v. State of U.P. 1962 CriLJ 469 ; so testimony of these injured witnesses cannot be discarded simply for the reason that they got confused in cross-examination and could not vividly describe the location of their enclosure and passage. It was not a walled enclosure and obviously lay on the out-skirts of the village where village Abadi did not exist. So it will not avail the learned advocate for Appellants to say that as the witnesses alleged the jungle towards west of the enclosure of Jhallu and so this enclosure of victims was non existent. It has been shown above that Shyam is an Illiterate rustic who had little idea of direction, etc.; he did not possess a fertile brain to invent a fictitious story about sorghum crop and the existence of their enclosure adjoining the enclosure of Appellants; had there been none. In
Where the witnesses to a criminal case are rustics, their behavioural pattern and perceptive habits have to be judged as such. The too sophisticated approaches familiar in courts based on unreal assumptions about human conduct cannot obviously be applied to those given to the lethargic ways of our villages. When scanning the evidence of the various witnesses the court had to inform itself that variances on the fringes discrepancies in details, contradictions in narrations and embellishments in inessential parts cannot militate against the veracity of the core of the testimony provided there i9 the impress of truth and conformity to probability in the substantial fabric of testimony delivered.
On the other hand testimony of injured when carefully scrutinised is quite definite about the venue, time and manner of occurrence. Ajodhya entered the village on his bullock-cart from the way running north-south from bifurcation he took the bullock-cart towards his enclosure through the short cut which was found blocked at place-A; in that connection the altercation ensued; when Ajodhya found the Appellants adamant being all alone, and unarmed he diverted the bullock-cart towards south; probably he might have been vituperative while diverting the cart towards south and so he was chased by all the three assailants who overtook him near the drain; Suraj and Shyam were attracted by his outcry near the house of Bhagona and as Suraj was eldest and could have posed a serious menace to be encountered by the assailants so he was attacked with Pharsa etc. with greater ferocity and met an instantaneous death at place shown by letter-F from where blood stained earth was also seized. It was laid in FIR that the venue of occurrence was on the way near the house of Bhagona, Shyam and Ajodhya made a definite statement that the venue of occurrence was near the drain on the way in between the drain and house of Bhagona. The victims did not stand to gain by having the venue of occurrence at this trivium where the neighbouring witnesses were reluctant to support them; had they chosen to be dishonest and in collusion with investigating agency they could have easily alleged the scene of occurrence at letter - A or at their door where Smt. Ramkali could have been a natural witness of murder of her husband. Learned trial Judge rightly observed that even though investigator might have been remiss in not sending the blood-stained earth for examination to Chemical Examiner or Serologist but such omission on his part is not sufficient to discard the ocular testimony which finds a firm corroboration from the medical evidence and circumstances of the case.
44. On a close analysis of the aforesaid evidence it is obvious that testimony of injured is credible; they are unanimous about venue and time and manner of occurrence which finds corroboration from the medical evidence and circumstances of the case; all the assailants came in close quarters 10 them while dealing blows; it was not merely a hit and run affair by unknown assailants. Thus on the aforesaid facts, evidence and circumstances we unhesitatingly arrive at the conclusion that the Appellants were authors of the fatal injuries on Suraj and simple injuries on Ajodhya and Shyam.
45. However, as a matter of abundant caution we would like to extend the benefit of reasonable doubt to Radhey Kishan, Appellant who is alleged to have dealt blows with an axe. Dr. R.C. Singh, PW 6 testified that the dimension and nature of injuries No. 1 and 2 of Suraj were indicative of having been caused by heavy sharp edged cutting weapon like pharsa and not axe. As there is no firm corroboration about axe injuries by medical evidence so benefit of reasonable doubt is extended to Radhey Kishan who is acquitted herewith.
46. In the result appeal of Radhey Kishan is allowed. His conviction and sentence u/s 302/323 read with Section 34 of the Indian Penal Code are set aside and he is acquitted of the said charges.
47. Radhey Kishan, Appellant is in jail. He shall be released forthwith unless required in connection with any other process of law.
48. Appeal of Jhallu and Tika Ram, Appellants fails. Their conviction and sentences under the said counts are affirmed. They are in jail and shall serve out the aforesaid sentences. The impugned order is modified accordingly.
By the Court :-
49. A prayer was made for a certificate under Article 134 of the Constitution. We are, however, not satisfied that the case is a fit one for appeal to the Supreme Court.
50. The prayer is rejected.
