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IN THE HIGH COURT OF ALLAHABAD
S. K. Dhaon, S. I. Jafri
MAHESHWARI, - Appellant
Versus
STATE OF D.P. - Respondents
Criminal Appeal 2668 Of 1977
Decided On : 12/17/1986
CRIMINAL APPEAL - SECTION 302 IPC - MURDER - EYE-WITNESSES - IDENTIFICATION OF ACCUSED - DISTANCE BETWEEN WITNESSES AND PLACE OF OCCURRENCE - SECTION 161 AND 162 CRPC - RECORDING OF STATEMENTS BY POLICE OFFICER - EFFECT OF NON-COMPLIANCE - RELIABILITY OF WITNESSES' TESTIMONIES.
Fact of the Case:
The appellants were convicted and sentenced to life imprisonment for the murder of Badri. The prosecution alleged that the appellants, armed with weapons, assaulted Badri in a field. The incident was witnessed by three persons, Mahipat (the father of the deceased), Lalji, and Hindupat.
Finding of the Court:
The court found that the testimonies of Mahipat and Lalji were unreliable as they were too far away from the scene of the occurrence to have seen the incident clearly. The court also found that the testimony of Hindupat was unreliable as he was a chance witness and his statement had been recorded in writing and signed by him in violation of Section 162 of the Code of Criminal Procedure.
Issues: 1. Whether the eye-witnesses were able to see the incident clearly from the distance they were at. 2. Whether the testimonies of the eye-witnesses were reliable.
Ratio Decidendi: 1. The court held that the eye-witnesses were too far away from the scene of the occurrence to have seen the incident clearly. The court relied on the fact that the site plan prepared by the Investigating Officer showed that the eye-witnesses were about 100 yards away from the place of occurrence and that, according to a study cited by the court, a person with normal eyesight can only recognize a person they know very well from a distance of 50 to 90 yards in broad daylight. 2. The court held that the testimonies of the eye-witnesses were unreliable. The court relied on the fact that the eye-witnesses were too far away from the scene of the occurrence to have seen the incident clearly and that the testimony of Hindupat was unreliable as he was a chance witness and his statement had been recorded in writing and signed by him in violation of Section 162 of the Code of Criminal Procedure.
Final Decision: The court allowed the appeal, set aside the conviction and sentences of the appellants, and acquitted them.
( 1 ) THE appellants have been convicted and sentenced for life under section 302 read with section 34 of the Indian Penal Code. They feel aggrieved; hence this appeal.
( 2 ) THE place of occurrence was a field of one Mania in village Bara Dera Behuni Kalan within the jurisdiction of the Police Station Muskara. The distance between the place of occurrence and the Police Station was about four miles. The occurrence is of 3rd February 1977, time being about 2. 30 pm. The first information report was lodged at about 4. 30 p. m.
( 3 ) MAHIPAT (P. W. I) the father of the victim Badri, who was aged about 22 years, lodged the first information report. This was a scribed report, the writer being one Bala Prasad. The appellants No. 1 and 2, namely, Maheshwari and Raja Ram are real brothers and the appellant No. 3 Babbu alias Babu is a cousin of the appellants No. 1 and 2. The allegation was that Maheshwari, the appellant No. 1, was armed with a spear (Bhala), the appellant No. 2, Raja Ram, was armed with a lathi and the appellant No. 3 Babbu, was armed with a Pharsa (Sharp edged weapon ). It was alleged that all the accused wielded their weapons in bringing about the death of Badri.
( 4 ) FIVE witnesses were mentioned in the first information report. They were (1) Bhawani, (2) Jagannath (3) Mahipat (P. W. 1), Hindupat (P. W. 2) and Lalji (P. W. 3 ). At the trial Bhawani and Jagannath were not produced.
( 5 ) THE usual investigation followed. The Investigating Officer reached the scene of occurrence. He prepared a site plan. According to this plan Mahipat (P. W. 1) was at point No. 8 when he heard the shrieks of his son, Badri, the deceased. He reached point T7t a distance of about 100 yards from the place of occurrence in the field of Mania. Further, Lalji (P. W. 3) was at point No. 6 and this distance too had been shown at about 100 yards from the place of occurrence. Hindupat (P. W. 2) was at a point, which is about 25 paces away from the scene of occurrence.
( 6 ) DR. S. C Pandey (P. W. 6) conducted post-mortem of the dead body of Badri on 4th February, 1977. The following ante mortem injuries were found on the dead body: 1. Incised wound 4 cm x 1 cm x bone deep on left side of head over parietal region 7 cm, above left ear oblique in direction. 2. Incised wound 2 cm x. 5 cm x scalp deep on right side of occipital area 2 cm being right ear oblique in direction. 3. Incised wound 1. 5 cm x 1 cm x bone deep on right temporal region 2 cm above right ear. Transverse. 4. Incised wound 1. 5 cm x 5 cm x scalp deep on right temporal region 1. 5 cm above right ear and 1 cm infront of injury No. 3. 5. Punctured wound. 7 cm x. 5cm through and through on back of upper part of pinna of right ear to front. 6. Incised wound 1 cm x. 5 cm x bone deep on left side of head frontal region. 5 cm above left eye brow and 5 cm from mid plane.
( 7 ) INCISED wound 2 cm x. 5 cm x bone deep on left side of head frontal area. 1. 8 cm lateral to injury No. 6.
( 8 ) INCISED wound 5. 5. cm x 2 cm x bone deep on left side of temple 3 cm front of left ear. Left temporal bone cut beneath it.
( 9 ) INCISED wound 3. 5 cm x. 8 cm bone deep just front of left ear.
( 10 ) INCISED wound 3 cm x 1. 5 cm x bone deep behind left ear temporal bone fractured beneath it.
( 11 ) INCISED wound 1 cm x. 4 cm x muscle deep left side of forehead just above left eye brow lateral side.
( 12 ) INCISED wound 1. 5 cm x. 4 cm x muscle deep on left side.
( 13 ) PUNCTURED wound. 8 cm x. 5 cm x bone deep on right side of face. 2 cm front of right ear.
( 14 ) INCISED wound 6 cm x 1. 5 cm x bone deep on right side of neck Upper part just below right mandible. Right hyoid cervical vertebrae partially cut.
( 15 ) FOUR punctured wound in front of right forearm lower 1/4 upto elbow joint in an area of 6 cm x 3 cm measuring from. 5 cm x. 5 cm to 1 cm x 1 cm x bone deep.
( 16 ) PUNCTURED wound 1 cm x 1 cm x bone deep on lateral side or right fore arm 9 cm, above elbow joint.
( 17 ) CONTU
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