1996 Supreme(SC) 544

1996(2) Supreme 608
SUPREME COURT OF INDIA
A.S. Anand and M.K. Mukherjee, JJ.
Jagdish Narain & Anr. -Appellants
versus
State of U.P. -Respondent
Criminal Appeal No. 489 of 1995
Decided on 12-3-1996

Result: Appeal dismissed with modifications in nature of offence. Conviction under Sections 148, 149/302, IPC altered to one under Section 302/34 while maintaining sentence.

Headnote:(i) Criminal Procedure Code, 1973-Section 379-Appeal under- Indian Penal Code, 1860-Sections 148 and 302 read with Section 149-Prosecution for rioting and murder-Order of acquittal-Appeal against-High Court affirmed acquittal of A but reversed that of two appellants-None of the grounds canvassed by trial Court to acquit appellants held sustainable.

       Held: The contradictions which persuaded the trial Court to disbelieve the eye-witnesses related to their omissions to make certain statements before the Investigating Officer, which they made before the Court. On perusal thereof we find that the omissions were so minor and insignificant that they did not amount to contradictions at all. (Para 7)

       As regards the comment of the trial Court that the prosecution made no attempt to dispel the anomaly about the place where the deceased was attacked and his dead body was found, we are in complete agreement with the observations of the High Court that the above comment was the outcome of non consideration, of the evidence P.W. 1 testified that while the cart was proceeding on the Kacha road and it had reached the place where the road turned towards the east, his father moved on to the pagdandi, (hilly circuitous track) which passes through the field of Ram Autar. According to the evidence of P.W. 6, which remained uncontroverted, the dead body of Jitendra was found lying near the pagdandi and he held inquest there. The evidence of the prosecution witnesses thus clearly proves that Jitendra Nath met with his death at the place where his dead body was lying. The finding of the trial Court in this regard must therefore be said to be perverse. (Para 8)

       In responding to the next criticism of the trial Court regarding the failure of the Investigating Officer to indicate in the site plan prepared by him the spot wherefrom the shots were allegedly fired by the appellants and its resultant effect upon the investigation itself, the High Court observed that such failure did not detract from the truthfulness of the eye witnesses and only amounted to an omission on the part of the Investigating Officer. In our opinion neither the criticism of the trial Court nor the reason ascribed by the High Court in its rebuttal can be legally sustained. While preparing a site plan an Investigating Police Officer can certainly record what he sees and observes, for that will be direct and substantive evidence being based on his personal knowledge; but as, he was not obviously present when the incident took place, he was to derive knowledge as to when, where and how it happened from persons who had seen the incident. When a witness testified about what he heard from somebody else it is ordinarily not admissible in evidence being hearsay, but if the person for whom he heard is examined to give direct evidence within the meaning of Section 60 of the Evidence Act, the former s evidence would be admissible to corroborate the latter in accordance with Section 157 Cr. P.C. However such a statement made to a Police Officer, when he is investigating into an offence in accordance with Chapter XII of the Code of Criminal Procedure cannot be used to even corroborate the maker thereof in view of the embargo in Section 162 (1) Cr.P.C. appearing in that chapter and can be used only to contradict, him (the maker) in accordance with the proviso thereof, except in those cases where sub-section (2) of the section applies. That necessarily means that if in the site plan P.W. 6 had even shown the place from which the shots were allegedly fired after ascertaining the same from the eye witnesses it could not have been admitted in evidence being hit by Section 162 Cr. P.C. (Para 9)

       The trial Court ought not to have also made much out of the failure on the part of the Investigating Officer to find out to whom the pair of shoes found near the dead body belonged for the prosecution rested its case upon eye-witnesses and not circumstantial evidence. If the prosecution intended to prove the accusation levelled against the appellants by circumstantial evidence, then proof of the circumstance that the shoes belonged to one of them would certainly have been incriminating but when the prosecution rested its case upon the evidence of the eye-witnesses that question was of no such moment. In any event, the lacunae as pointed out by the trial Court could not have in any way impaired the evidence of the eye witnesses nor affected the prosecution case, as rightly observed by the High" Court. (Para 10)

       The last reason given by the trial Court to disbelieve the prosecution case in the context of the fact that the deceased had enmity with others is absurd for such a plea would have been available to anyone who might have been arraigned for the murder. The High Court, was therefore fully justified in observing that the deceased might have enmity with others but the question as to who had committed the murder was to be answered by the Court on the basis of the evidence adduced. (Para 11)

       (ii) Indian Penal Code, 1860- Sections 148 and 302 read with Section 149- Convictions under-Appeal-PW 1 and 2 most probable witnesses-They were accompanying deceased at material time-FIR promptly lodged fully corroborates PW 1-Medical evidence also corroborates evidence of two eye witnesses-Prosecution could prove that deceased met his death owing to two shots fired by appellants-High Court, however, not legally justified in convicting two appellants under Sections 148 and 149/302-Appellants shared common intention-Con-viction under Section 302/34-Sentence of imprisonment for life maintained.

       Held : We are, therefore, in agreement with the High Court that the prosecution succeeded in proving that owing to the two shots fired by the appellants Jitendra Nath met with his death. The High Court, however, was not legally justified in convicting the appellants under Sections 148 and 149/302 IPC for consequent upon the order of acquittal recorded by it in favour of Avdhesh, Sections 148 and 149 IPC could not have any manner of application - it being the positive case of the prosecution that only the five arraigned were the miscreants. Since, however, the manner in which the incident took place clearly indicates that the appellants shared the common intention of committing the murder of Jitendra Nath they are liable for conviction for the murder with the aid of Section 34 IPC. (Para 12)

       (iii) Indian Penal Code, 1860-Sections 148 and 149/302-Prosecution of Five accused for rioting and murder-Death of two accused-One accused acquitted by High Court-Sections 148 and 149 not applicable-High Court not legally justified in convicting two appellants under Sections 148 and 149/302. (Para 12)

       (iv) Criminal Procedure Code, 1973-Section 162-Investigation-Mark in sketch map based on statements made by witnesses to Investigating Officer-Inadmissible in evidence. (Para 9)