STATE OF U.P. versus SMT. NOORIE @ NOOR JAHAN AND ORS.

c STATE OF U.P. v. SMT. NOORIE @ NOOR JAHAN AND ORS. MARCH 26, 1996 [M.K. MUKHERJEE AND G.B. PATTANAIK, JJ.] Indian Penal Code, 1860 : Sections 147, 148, 3021149 and 201/Sll. Convicllon under–Validity of

• Evidence-Climinal Triaf-Eye witnesses-Assessment and evaluation of evidence–Principles fo,-.Duty of Court to avoid conjecture and fanciful speculation. Respondents N, I, Rand B were prosecuted under sections 147, 148, 302/149 and 201/511 of the Indian Penal Code, 1860. The allegation against them was that they along with some unknown person murdered R with knives and lathis. The prosecution case was that deceased R had gone to his tubewell ai 10.30 A.M. on 25.2.1975 for getting the same repaired E through a mechanic, PW 2. As he did noi come home to take his lunch till 2.30 P.M. his nephew PW·l went to call his uncle for food. When both of them were returning respondent N stopped the deceased on. the way and started talking to him. In the meantime the three other respondents along with two unknown persons came armed with knives and lathis and started F assaulting the deceased. While the deceased was being ·assaulted, respon· dent N was standing. PW-2 who followed the deceased and PW-1 soon reached the spot and saw the occurrence. N then left the place of occur· rence while the other three respondents dragged the dead body towards the grove and threw it into a pit.

Out of nine witnesses examined by prosecution, PWs·l, 2 and 3 were eye witnesses. PW·l witnessed the occurrence as he was accompanying the deceased. The evidence or PW·2 was that afier repairing the tubewell when he was returning home he heard the shouting of PW·l and on reaching the place of occurrence he saw. that deceased had fallen down and I, B and R H were assaulting the deceased with knives.

STATEv. SMT.NOORIE@NOORJAHAN Relyi~g upon the ~estiinony. of three eye wi~nesses the Trial .Conrt A held that the prosecution has _been able to establish the charges beyond reasonable doubt and accordingly convicted and sentenced .l\11. the ·accused persons. On appeal the High Court set aside the conviction and sentence holding that (i) it was not establis.hedthat the;uurder had been witnessed by the three witnesses;: (ii) PW-2 c.ould not have reached the place of occurrence simultane~usly with PW-1 and the deceased since he had to B. screw one bolt and lock the tube-well which in the process would have taken · atleast five minutes; alid (iii) PW·3 could not h_ave ~een N cl~arly froni · the }ilace_.of occurrence. .. . . .

, In appeal to this Court on the question whether the testimony of the C tht~ eyeowitnesses was reliable : Allowing the appeal in part, this Court HELD : 1~ The order of _acquittal passed by the High Court so far as respondent N is concerned is confirmed. _There is not an iota of material . D on record to indicate any prior . meeting of N with the other accused persons nor is there any material to implicate N in any' way with the ~ occurrence. N has not been -assigned any'role in the assault of the deceased. . Therefore, the order acquitting N cannot be interfered with. But the order of acquittal in respect of _other accused petSons is set aside and their E conviction. and sentence ls confirmed. [893-E-F]

2. While assessing and evaluating the evidence of eye witnesses the · court must adhere to two principles, namely.whether in the circumstances of the .case it was possible for the eye witness. t.o be present at the scene ._. · and whether there .is anything inherently improbable or unreliable. The F High Court has failed to observed the aforesaid principfos and in fact has mis-appreciated the evidence which has caused gross miscarriage of jus• tlee. Credibility of a witness has to be decided .by referring to his evidence and finding_ out how be had fared in cross-examination and what impres. sion is created by his evidence taken in other context of the case and not G by.enteringJnto realm of conjecture and speculation. [893-B•C] ".,)''.

r'!'.'. 3. The evidence of PWs 1; 2 ~J!d 3 is consistent with. one another so far as the place of occurrence, the manner of assault, the weapon of assault used by the accused persons, the fact of dragging of the dead body of the deceased from the place to the grove is concerned. Nothing has been H SUPREMECOURTREPORTS

[1996) 3 S.C.R. A brought out in their cross-examination to impeach their testimony. Their evidence fully corroborate the medical evidence. The conclusion is irresis- . \./ tible that the evidence of PWs 1, 2 and 3 on material particulars have been brushed aside by the High Court by entering in the realm of conjecture and fanciful speculation without even discussing the evidence more par- ticularly the evidence relating to the basic prosecution case: In that view of the matter the inevitable conclusion is that the prosecution has b~e9 able to establish the charge against the accuse.d persons and the High Court committed error in acquitting the three respondents. [893-A; D; El CRIMINAL APPELLATE JURISDICTION: Criminal Appeal ('<o.

C 183 of 1986. From the Judgment and Order dated 15.7.85 of the Allahabad ijigh Court in Cr!. A. No. 55 of 1978. Pramod Swamp, Ms. Pareena Swamp and AS. Pundhir for the D Appellants.

Ranjit Kumar for the Respondents. The Judgment of the Court was delivered by G.B. PATIANAIK, J. This appeal by grant of special leave is directed against the order of acquittal passed by the High Court of Allahabad, Lucknow Bench in Criminal Appeal No. 55 of 1978.

The four respondents were tried for offence under Sections 147, 148, 302/149 and 201/511 I.P.C. on the allegation that they along with some F unknown persons mercilessly assaulted deceased Bachan Shah with knives and lathis and. thereafter carried a cycle of the deceased and dragged the dead body of the deceased to the nearby grove and left it in a pit and escaped from the place of occurrence. The learned Additional Sessions Judge convicted 4 respondents under Section 147 and 302 read with Section 149 I.P.C. and further convicted respondents Inder Dutt, Raghu G Raj and Bikram under Sections 148,302 and 201/511 of the Indian Penal Code. Respondent Noori, however, was acquitted of the charge under Section 201/511 against her. All of them were sentenced to life imprison- l'

ment under Section 302/149 and respondent Noori was further sentenced to undergo for one year under Section 147 and the rest 3 respondents were sentenced under Section 148 of the Indian Penal Code and R.I. for one STATEv. SMT: NOOR!E@NOOR JAHAN [PATTANAIK,J.]

year under Section 201/Sllof the Indian Penal Code. Sentences have been A directed to run concurrently. The respondents then filed appeal and the High Court acquitted all of them for the charges levelled against them'. and hence tliis present appeal. . .

Prosecution case in nutshell is that deceased Ram Bharosey alias B . Bachan Shah had gone to his tubewell at 10.30 AM. on 25.2.1975 for getting the same repaired through the mechanic, Latta Mallah P.W. 2.-As he did not come home to take his lunch till 2.30 P.M. His nephew Iqbal Narain P.W. 1 went to call his uncle for food. When both of them were returning respondent Noori stopped the deceased on they way and started C t~lking to him. In the meantime and three other respondents along with twci' unknown persons came armed with knives and lathis and started ' assaulting the decea~ed. While the deceased :was being assaulted, respon- dent Noori was standing. P.W. 2 who followed the deceased and P.W. 1 soon reached the·spot and saw the occurrence. Noori then left the place of occurrence. Rest of the three respondents after mercilessly assaulting. D the deceased' dragged the dead body towards the grove and threw it into a pit, and left the place.

The' informant Iqbal Narain P.W. 1 prepared a Written report and lodged the same at Loni Katra Police Station at 4.30 P.M. On receipt of the said report w.hich was treated as F.l.R. P.W. 7 registered. the case and started investigation. On reaching the place of E occurrence, he held the inquest and then sent another officer to search for the accused. persons but the accused persons were not found. A dog squad was then went to tr~ce but the' two unknown persons and the ·said dog went upto the door of the accused Raghu Raj which was found locked. The dead" body Was serit for postportem examination. The investigatmg officer seized F incriminating articles and seilt f0r chemi~al Examiilation. Witnesses were eianiined uncle~ Sedion 161 Cr.' P.C. Finally on completion of investigation charge sheet was filed. On being' committed the respondents stood their trial. The defence plea .is on~ of denial. The prosecution ex~mined 9 witnesses in all of wh9m PWs 1, 2 and 3 are eye witnesses to the occur- rence. PW, 6 is the doctor who had conducted autopsy over the dead body G of the deceased. PW 4. is a witness to the inquest as well as witness to certain seizure. made in the course of investigation. PW 5 is the constable who carried the dead body to the morgue for postmortem examination. P.W.-7 is the police.officer who has recorded the FIR and investigated into the offence. PW. 8 is a constable arid formal witness. PW. 9 is the Head H A Constable who had made some entries at the Police Station on receipt of the written report. Prosecution also proved several documentary evidence of which Ext. 26 is the FIR, Ext. 9 is the postmortem report of the deceased, Ext. 40 is the Report of chemical Examiner and Ext. 39 is the Sero!ogist Report. The defence also examined one witness as OW.

1. The B learned Additional Sessions Judge on a scrutiny of the entire materials on record came to the conclusion, mostly relying upon the evidence of 3 witnesses PWs. 1, 2 and 3, that the prosecution has been able to establish the charges beyond reasonable doubt and accordingly convicted and sen- tenced the accused persons as already stated. On appeal by the accused respondents the High Court though accepted the prosecution story that the C deceased was murdered in the Galiayar and his body was shifted to the pit where it was dumped but held it was not established that the said murder had been witnessed by the alleged witnesses namely PWs. 1, 2 and 3 and therefore the possibility that the deceased was murdered by others and the appellants were implicated on mere suspicion or out of, vengeance cannot be ruled out. With this conclusion the High Court set aside the conviction and sentence passed by the learned Additional Sessions Judge and ac- quitted the accused respondents.

Mr. Pramod Swarup, the learned counsel appearing for the appellant E contended that the reasonings given by the High Court in discarding the prosecution story and in disbelieving the. oral testimony of PWs to the 3 · are wholly unsustainable in law and consequently the order of acquittal is vitiated. The learned counsel also contended that the High Court wholly erred in law in discarding the prosecution case on the basis of certain infirmities in the investigation and this has resulted in gross miscarriage of F justice by ordering acquittal of the respondents. The learned counsel for the appellant, however, fairly stated that so far as respondent Noori is concerned on the basis of evidence on record it would be difficult to assail her acquittal made by the High Court. Mr. Ranjit Kumar, learned counsel appearing for the 'respondents on the other hand submitted that in view of G the proved animosities of the prosecution witnesses and in view of the gross infirmities in their evidence, the High Court was fully justified in discarding prosecution case. According to Mr. Ranjit Kumar though prosecution case so far as death of Ram Bharosay is concerned is true but the prosecution case as unfolded through the witnesses PWs 1 to 3 and the manner in which the death occurred is not true and therefore the order of acquittal passed H by the High Court should not be interfered with by this Court. · STATE v. SMT. NOORIE@NOOR JAHAN [PATIANAIK, J.]

In view of the rival stand of the parties the question arises for A consideration is whether the evidence of PWs 1 to 3 can be discarded on the grotihds advanced by the High Court or not? Before scrutinising the evidence of these three witnesses it would be appropriate to examine the correctness of the reasonings advanced by the High Court in . discarding tlie prosectltioil case; llnt before doing so. we may first set out the .case against respondent Noori' The only evidence against Noori was that while B the deceased and PW; i Were coming she stopped them on the way and bilked with tleceased an:d at that 'point of time other accused persons came aiid assauited !He deceased. There is not an iota of material on record to indicate any prior meeting of Noori with the other accused persons nor is there arty material to implicate Noori in any way with the occurrence. Noori C has not been assigned any role in the assault of the· deceased. In this view of the niatter the order of acquittal of respondent Noori by the High Court cannot be interfered with by this Colli"~:

the High Court canie to the conclusion that .PW. 2 · eoiilci hot have . D re·a<:hed the place of occurrence simultaneously with PW. 1 and the deceased Since he had to screw one. bolt and lock the tube'well which in the process would have taken at least five .minutes. It is neither the evidence of PW. 1 that PW. 2 cailie With them to the place of occurrence nor is it evidence of PW. 2 that he was along With the deceased and PW. 1. On the either hand ·the evidence of J>W. 2 is that after the deceased alid'PW. 1 left E the tube-well, PW. 2 tightened the bolt and left for home artd while he was at a diStartce of roo paces from the place of occurrence he heard shouting of PW. 1 ari'd then he ran and oh reaching the place of cicc\frrence he saw th'at deceased had fallen down aild three respondents, lhder Dutt, Vikram :ind Raghuraj were assa\iltiiig 'the deceased With knives, The condusion of F the High cdnrt, therefore, is based upon total \ftisreading of the eVideh'ce of PWs 1 ,& ·2. the High ·court has coimllented upon the investigation as to why the fai:i: whether ,pw. 2 was at all engaged iri the repah work Of the tlibe-~eII had not been investigated into.

In our c6Dsidered 'cipiiiioii it is wholly untenable approach and had nd relevance with 'the appreciation of G tlie evidence PW. 2. The High Court had commented upon the evidence of PW; 2 o'n ·the ground that at one place he said that he was called by the investigating officer at about the tirhe of sun set whereas at other place he said that he was called by the investigating officer at night and on this score the High Court jumped to the conclusion that PW. 2 cannot be accepted fo he a witness to the, oecurrence. We are unable to accept this reasoning H; of the High Court. Instead of focussing its intention to the testimony of the witness with regard to the actual occurrence the High Court has gone around the periphery and without even discussing anything so far as occurrence is concerned has discarded the testimony and in our view erroneously. So far as PW. 3 is concerned the High Court discarded his B testimony by comparing his evidence with the evidence of PW. 2 and on coming to a conclusion the he could not have seen Noori clearly from the place of occurrence.

As stated earlier the very approach of the High Court in appreciating the evidence has been rather faulty and no attention has been bestowed by the High Court in discussing the basic prosecution case. The conclusion of the High Court that the evidence of PW. 3 docs not C inspire confidence is a wrong conclusion without discussing his evidence and the said conclusion is wholly unsustainable in law. On discussion of medical evidence, the High Court came to the conclusion that the ocular version of the evidence does not receive complete support and corrobora- tion from the medical evidence. But we are unable to sustain this con- D clusion of the High Court also. The Doctor PW 6 who conducted the post-mortem examination found as many as 9 punctured wounds, 3 incised wounds, one lacerated wound and three abrasions on different parts of the body of the deceased. The High Court accepted the prosecution case that the punctured wounds and incised wounds could be caused by a knive but since the lacerated wound which was found between right index finger and E thumb measuring 3 cm x 2 cm could not be caused by a Knive, the High court jumped to the conclusion that the medical evidence does not cor- roborat the ocular statement.

We find it difficult to sustain this conclusion. Commenting upon the investigation the High Court observed that it is not free from taint. The aforesaid conclusion is based upon the fact as to why the dog was given a smell of the bicycle of the deceased instead of the piece of Dhoti which had allegedly got stuck to a tree. The further reasoning advanced is as to what was the necessity of dragging the deceased and throwing the dead body into a pit. Then again the High Court observed that the bicycle of the deceased had been touched by Noori alone apart from deceased then how the dog after smelling the bicycle proceeded towards the house of Raghuraj. In our considered opinion the alleged infirmities found out by the High Court neither can be held to be sufficient to hold the investigation to be tainted nor can it be taken into account to discredit the prosecution case.

The High Court having acquitted the accused persons on apprecia- ;"I. STATEv. SMT. NOOR!E@NOORJAHAN [PATTANAIK,J.] tion of the evidence, we have ourselves scrutinised the evidence of PWs. 1, A 2, and 3. The conclusion is irresistible that their evidence on material particulars have been brushed aside by the High Court by entering in the realm of conjecture arid fan~iful speculation withbut .even discussing the evidence more particularly th.e evidence relating to the basic prosecution case. While assessing and evaluating the evidence of eye witnesses the court B must adhere to two principles, namely whether in the circumstances of the case it was possible for the eye witness to be present at the scene and whether there is anything inherently improbable or unreliable. The High Court in out opinion has failed to observe the aforesaid principle and in fact has mis-appreciated the evidence which has caused gross miscarriage of justice. Credibility of a witness has to be decided by referring· to his C evidence and finding out how he has·faied in cross-examination arid what impression is created by his evidence· taken in other context of the case and not by·entering·into rea!i1(of conjecture and Speculation. Ori scrutinis- ing the evidence of PWs. 1, 2 and 3·we find they are consistent with one another so far as the place of occurrence, the manner of assault, the D weapon of assault used by the accused persons, the fact of dragging of the dead body of the deceased from the place to the grove and nothing has . been brought out in their cross-examination. to impeach their testiffiony. . The aforesaid oral evidence fully corroborate the medical evidence. Jn that view ~f the matter we unhesii~tingly ~o~e to the .conclusion that the prosecution has been able .to esiablish the . chwge against the accused E • persons and the High Court committed error in acquitting the, three respondents namely Jnder Dutt, Raghu Raj and Bikram. Jn the aforesaid premises the order of acquittal passed by the High Court so far 'as respon- dent Noori is ):oncerned is confirmed but the· order of acquittal so far as i acc\lsed lnder Qutt. Raghu Raj and Bikram is concerned is set aside· their'· F . conviction and sentenceS·passed by the le'arned Additional Sessions'Judge are confirmed. The appeal is allowed in part. Respondents Inder Dutt, Raghu Raj and Bikram are directed to surrender to serve the balance period. of _sentynce.-Thcir·bail-bonds stand cancelled.

· ·-*' T.N.A. ~ ,,_ .. \ 0 Appeal allowed. · G . I .. '