MUNUWA @ SATISH ETC. versus THE STATE OF UTTAR PRADESH

[2022] 12 S.C.R.

MUNUWA @ SATISH ETC.

THE STATE OF UTTAR PRADESH

(Criminal Appeal Nos. 2224-2225 of 2010)

AUGUST 26, 2022

[B. R. GAVAI AND

PAMIDIGHANTAM SRI NARASIMHA, JJ.]

Penal Code, 1860: ss. 34, 302, 307 – Murder – On the fatefulday, while the victim-principal of the College was sitting with hisCfamily physician and private practitioner-PW-6 outside his officeof the college campus, three persons, A-1, A-2, and A-3, allegedlyentered the verandah and fired gunshots at the principal as well asat PW-6, and fled – First aid given to the principal and thereaftertaken to Police Station on bullock cart – FIR lodged by the victim,thereafter sent to hospital where he died of shock and hemorrhageDdue to injuries caused by several gun shots – Trial court convictedthe accused persons u/s 302, 307 r/w s.34 – High Court upheld theorder – Meanwhile A-2 passed away – As regards A-1 and A-3 held: There are certain glaring contractions in the evidences produced– Failure of prosecution to recover blood-stained materials from

Ethe place of occurrence, empty cartridges, pellets, or any otherweapon used for commission of the crime, coupled with thecontradictions and unnatural conduct of the eye witnesses, and theinconsistencies in the two dying declarations – Prosecution has notproved the case beyond reasonable doubt – Thus, the accused

entitled to benefit of doubt, and acquitted from all charges.F

Meghraj Singh v. State of U.P. (1994) 5 SCC 188 :[1994] 3 SCR 592; Ram Sewak and Ors. v. State ofM.P. [(2004) 11 SCC 259 : 2004 (1) Suppl. JT 217;Mehiboobsab Abbasabi Nadaf v. State of Karnataka(2007) 13 SCC 112 : [2007] 8 SCR 713 - referred to.

Case Law Reference

[1994] 3 SCR 592[2007] 8 SCR 713[2010] 5 SCR 137

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNos. 2224-2225 of 2010.

From the Judgment and Orders dated 10.02.2010 of the HighCourt of Judicature at Allahabad in Criminal Appeal Nos.290 & 587 of1981.

R. Basant, Sr. Adv., Venkita Subramoniam T.R., Likhi ChandBonsle, Rahat Bansal, Advs. for the Appellants.

Sanjay Kumar Tyagi, Prabhat Kumar Rai, Ajay Kumar Pandey,Advs. for the Respondent.

The Judgment of the Court was delivered by

PAMIDIGHANTAM SRI NARASIMHA, J.

1. These appeals challenge the judgment of the High Court ofJudicature at Allahabad in Criminal Appeal Nos. 290 and 587 of 1981dated 10.02.2010, confirming the conviction and sentence passed by theSessions Judge, Bareilly in S.T. No. 402 of 1979 dated 31.01.1981. Bythe said judgment, the Sessions Judge, Bareilly convicted all the accusedunder Section 302 and Section 307, each read with Section 34 of theIndian Penal Code, 1860, and sentenced them to life imprisonment andrigorous imprisonment for period of four years, respectively.

2. The Prosecution Case: The case of the prosecution is that, on24.08.1979, around 6:30 p.m., Shri Iqbal Bahadur Saxena, Principal ofthe Chandra Shekhar Azad Inter-College, Giani, Uttar Pradesh[1], sincedeceased was sitting with his family physician and private practitionerDr. Asghar Ali[2] in the verandah outside his office, situated in the collegecampus. He sent his security guard Fazal Maseeh[3] to fetch an emptybottle of medicines from his residence, also within the college campus.As PW-1 was returning with the bottle, the three accused, Gullu @Rajesh (A-1), Vimal Kumar @ Chunnoo (A-2), and Munuwa @ Satish(A-3), are alleged to have entered the verandah from the south, firedgunshots at the Deceased as well as at PW-6, and fled towards thenorth of the building. PW-6 went to his dispensary located nearby andsought the help of Mahendra Kumar, compounder at his dispensary, tobring the Deceased who had become unconscious, to the dispensary on

1 hereinafter referred to as the ‘Deceased’.

2 hereinafter referred to as ‘PW-6’.

3 hereinafter referred to as ‘PW-1’.

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Aa cot for administering first-aid. After that, the Deceased was put on abullock cart along with the cot to proceed to Police Station Aliganj.PW-6 is supposed to have followed on another bullock cart.

3. Upon reaching the Police Station, the Deceased lodged an FIRat 8:30 p.m. for offence under Section 307 of the IPC, translatedBversion of which reads as follows: -

“I, Iqbal Bahadur Saxena S/o Pyare Lal Saxena (?) am theresident of Village Sarai Jatar, Ugait, District- Badaun. I amthe Principal at Gaini Inter College. I was sitting in front ofGiani School. Fazal and Asghar were sitting. At around 6.30CP.M. Gullu S/o Mukat, Vimal Kumar S/o Dataram, MunuaS/o Chandra Sen of Gaini arrived and fired shots with thecountry made pistol for killing me. Asghar and I have beenhit by the bullets. (I am?) witness in the case of Vimal Kumar,therefore it has been done.”

D4. The statement was entered into the General Diary by the HeadConstable Raghunandan Lal[4], and after recording the statement, PW-4sent the Deceased to Visharatganj Railway Station on bullock cart forboarding the train to Bareilly for treatment at the Bareilly General Hospital.Constable Sohan Lal[5] is said to have accompanied him. As per thestatement of PW-8, the Deceased reached the railway station by 9:15Ep.m. to board the train and finally reached the Bareilly General Hospitalby 11:00 p.m., where Dr. J.N. Bhargava[6] examined him at 11:15 p.m.On the other hand, PW-6’s bullock cart reached the railway station around10:00 p.m., by which time the train carrying the Deceased had alreadyleft. Accordingly, PW-6 boarded the 12:00 a.m. train and reached theFhospital by 2:00 a.m. on the next date, i.e., 25.08.1979.

5. At the hospital, the statement of the Deceased was recordedby the Tehsildar and Executive Magistrate Shri Subhash C. Rastogi[7],between 11:10 a.m. to 11:20 a.m. on 25.08.1979 after getting certificateof medical fitness from Dr. P.K. Bass[8]. In this statement, the DeceasedGrecounted events leading to the attack on him, with crucial differencesin motive, place of occurrence, and the presence of other persons at

4 hereinafter referred to as ‘PW-4’.

5 hereinafter referred to as ‘PW-8’.

6 hereinafter referred to as ‘PW-11’.

7 hereinafter referred to as ‘PW-5’.

H8 hereinafter referred to as ‘PW-9’.

such site, among others. On 27.08.1979 at 2:35 a.m. the Deceased passedaway, and the post-mortem which was conducted on the same dayrecorded seven gunshot wounds, stitched wounds and abrasions, andnoted that shock and hemorrhage due to injuries were the cause of death.

6. After the investigation and the arrest of the accused, theprosecution filed the charge-sheet against the accused, and the SessionsJudge framed charges under Sections 302 and 307, each read with Section34, of the IPC. The prosecution examined 11 witnesses being PW-1 toPW-11, and marked around 28 documents.

7. Trial Court: The Trial Court, by its judgment dated 31.01.1981,considered and rejected the appellants’ contention that the prosecutioncase was false. It accepted that the FIR was genuine and not ante-dated, recorded after the dictation of the Deceased at around 8:30 p.m.upon reaching the police station. The FIR was treated as the Deceased’sfirst dying declaration. The Trial Court accepted that the place ofoccurrence was the passage in front of the verandah of Deceased’soffice and observed that the accused could not suggest or prove analternative place of occurrence of the crime. The submission concerningthe lack of motive was rejected on the basis of the FIR being treated asthe first dying declaration, in which the Deceased stated that as he wasa witness in case against A-2, and hence motive was adequately provedagainst A-2. However, the same conclusion could not be drawn againstA-1 and A-3. The Trial Court further discarded the contradictions thatsurfaced by the improvements in the statements of eye-witnessesPW-1 and PW-6 during cross-examination, noting that they were resultof intimidation by the accused persons who were on bail at the time ofrecording of evidence. It held that these improvements did not vitiate thestory of the prosecution. The Trial Court disbelieved the statement ofthe Deceased recorded by PW-5 on 25.08.1979, also referred to as thesecond dying declaration, as it was recorded more than 16 hours afterthe incident, and was possibly result of prior consultation anddeliberation. As indicated, the Trial Court finally convicted all the accusedunder Sections 302 and 307, each read with Section 34 of the IPC. Theaccused persons were sentenced to life imprisonment for offences underSection 302 read with Section 34 IPC, and for offences under Section307 read with Section 34 IPC, to rigorous imprisonment for four years.

8. High Court: In the criminal appeals filed by the accused, theHigh Court affirmed the convictions and the sentences without any

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Avariation. It noted that the motive against A-1 and A-3 pivoted on theirassociation with A-2, whose motive for committing the crime wasadequately proved. On the question of contradictions in the testimoniesof the eye-witnesses PW-1 and PW-6, the High Court noted that despitethe inconsistencies, both witnesses were consistent about specific facts,such as the number of accused persons present at the site of the crime,Bfiring of gunshots, and the murder weapon. The Court concluded thatthe contradictions resulted from apprehension of consequences, as theeye-witnesses resided in the same locality as the accused. Further, theHigh Court also disbelieved the statement of the Deceased recorded asthe second dying declaration, apart from noticing that the dying declarationCrecorded prior in point of time must be given preference, and itscorroboration by the subsequent such declaration is only rule of prudence,which does not vitiate the contents of the first dying declaration. Wemay note here that during the pendency of the appeal before the HighCourt, A-2 had passed away, and accordingly the present appeals onlyconcern the conviction and sentences against A-1 and A-3.D

9. Submissions at the bar: We heard Shri Venkita SubramoniamT.R, AOR at length, and his submissions were later supplemented byShri R Basant, Sr. Advocate, assisted by Shri Likhi Chand Bonsle andShri Rahat Bansal, Advocates. We also heard, Shri Sanjay Kumar Tyagi,AOR on behalf of the State of Uttar Pradesh assisted by Shri PrabhatEKumar Rai and Shri Ajay Kumar Pandey, Advocates.

10. At the outset, Shri Venkita Subramoniam T.R has submittedthat the FIR itself is false and fabricated and that the subsequent eventsconcerning the delay of the FIR in reaching the Court also casts gravedoubts about the occurrence of the incident. They further submitted thatFthere is doubt as to the place of occurrence, and contradictions surfacein the testimonies of the eye-witnesses PW-1 and PW-6. He submitsthat the conduct of PW-1 and PW-6 is rather suspicious and very unnatural.If these eye-witnesses are discarded, there are no independent witnessesto support the story of the prosecution, particularly when there are noGrecoveries of weapons in the case. On the other hand, Sh. Sanjay KumarTyagi, has submitted that the findings of the Trail Court as well as theHigh Court are based on credible and reliable evidence, particularly fromeye-witnesses who had no interest in securing the conviction and arrestof the accused. He further submitted that the Trial Court examined theentire evidence and has given good and valid reasons for coming to its

conclusions, and therefore, the High Court was right in upholding thedecision of the Trial Court.

11. Analysis: Having heard the arguments, we notice some glaringinconsistencies in the evidence put forth by the prosecution. We willtake note of some such crucial lapses.

12. At the outset, we are not impressed by the submission of ShriVenkita Subramoniam T.R that the FIR was signed by the Deceasedvertically, in different ink in the FIR, while the contents of the FIR itselfwere written horizontally, thereby giving an impression that FIR waswritten after the signature which was obtained at prior point of time.However, there are certain glaring contradictions that cannot be ignored.First, there is doubt as to whether the Deceased authored the FIR andhanded it over to the police, as stated in the cross-examination of PW-1,or it was orally dictated by the Deceased and scribed by PW-4, as statedby PW-6 in his chief-examination. The other connected fact castingdoubt on the way FIR was registered, is the delay caused in its receipt inthe Court. An endorsement contained in the original FIR states that itreached the concerned Court on 27.08.1979, i.e., three days after thedate of the registration of the FIR. This endorsement is evident from theoriginal FIR document and reads “Sambandith Nyayalay Beja.”

13. Re: ocular witnesses: There are doubts about the conductand testimony of the eye-witnesses. The first such contradiction in thetestimony of PW-1 fundamentally challenges the premise that PW-1was an eye-witness. In his testimony, PW-1 initially denied being awitness to the actual commission of the crime, stating that:

“The shot was fired, when I had gone inside. When I broughtan empty bottle, I saw accused Vimal Kumar, Munua and Gullufleeing. These persons were fleeing southwards. When I sawaccused persons fleeing, I had reached in verandah of theoffice.”

14. Later, in his cross-examination, PW-1 stated that: -

“It is not so that as soon as I reached near stairs of theverandah carrying an empty bottle, the accused persons firedshots. And after firing shots in my presence, the accusedpersons fled northwards”

A15. The aforementioned contradictions in the evidence of PW-1and significant improvements in the testimony, cast doubts about hispresence at the alleged place of occurrence of the crime. At least onething is clear, he has not witnessed the accused firing at the Deceased.

16. The other concern relates to his presence at the police station.BPW-1 deposed that his thumb impression was taken on the FIR. However,there is no such thumb impression at all on the document. In addressingthis contradiction, the Trial Court concluded that,

“The statements referred to above were made with view tosupport the defence and I am unable to place any reliance onCthe same.”

17. Another observation made on perusal of the evidence is thatPW-1 stated that he reached the Aliganj police station on foot, remainedthere for about 25-30 minutes, and after that returned to the village Gianiby 8-9 p.m. This statement is curious, as the FIR itself was registered atD8:30 p.m. It is surprising then that PW-1, who walked the distance of 3km to the police station, reached there well in time and observed theDeceased write the FIR, allegedly signed it himself, had his statementrecorded by the S.I., and after that, concluded the return journey aswell, all by 8-9 p.m. It is also curious that he did not accompany theDeceased to the railway station and eventually the hospital when heEwas in critical condition, given that he resided with the Deceased withinthe campus and had been working there for 10-12 years.

18. Cumulatively, the abovementioned contradictions give rise tosuspicions about the eye-witness testimony of PW-1. Whether he waspresent at the place of occurrence or accompanied the Deceased to theFpolice station at all, are in doubt as his statements relating to thecircumstances surrounding the place of occurrence and the recording ofthe FIR have been found to be untrue, and his conduct unnatural.

19. In similar vein, we notice unnatural conduct on part of theeye-witness PW-6. PW-11 who examined PW-6 at the General HospitalGBareilly, stated that the injuries on PW-6 were simple in nature. Despitethis, immediately after the incident, PW-6, doctor who admittedlymaintained close relations with the Deceased, instead of being with theDeceased, went to his own house and rested. Later, he accompaniedthe Deceased to the police station to report the crime instead of escortingthe Deceased to hospital to administer proper treatment, even when itH

has been admitted that the Deceased was in very serious condition,having suffered seven gunshot injuries and oozing blood.

20. Re: place of occurrence: There is great amount ofuncertainty about the place of occurrence of the crime. As per the FIR,as well as the evidence of PW-1 and PW-6, the incident took place inthe passage in front of the verandah where the Deceased and PW-6were sitting in two chairs facing each other. It is at this place that theaccused are alleged to have fired at the Deceased causing as many asseven gunshot injuries on his body. Inspector Chob Singh (PW-7) whowas cross-examined about the place of occurrence has stated that hehas not found blood spots on the chair or the floor around the chair. Thiscontrasts with the testimony of PW-1, who, in his cross-examination,stated that when the Deceased was lying on the bullock cart in cot,blood was oozing out from him, which is relatable to the injuries sustainedat the place of occurrence.21. It is unnatural that not even single drop of blood could betraced or recovered from the chair or the floor where the Deceased andPW-6 were sitting, casting serious doubt about the veracity of theprosecution’s story regarding the place of the incident. It is commonknowledge that place where severe bodily injury occurs, it naturallyleaves trail of the incident[9]. It is also common for the prosecution tocollect proof of blood-stained earth, clothes, or other materials, fromwhere the incident would have occurred.

9 In Meghraj Singh v. State of U.P. [(1994) 5 SCC 188], this Court held, “13....Theabsence of any blood in the field of Kirpal Singh as also the absence of blood trail fromthe field of Kirpal Singh to the place where the dead body was found, as admitted byPW 8, also suggests that the occurrence did not take place in the manner suggested bythe prosecution and that the genesis of the fight has been suppressed from thecourt...’’.

similar view was taken in the case of Ram Sewak and Ors. v. State of M.P. [(2004) 11SCC 259], wherein it was held, “14...We also notice that there is considerable doubt inregard to the place of incident also. From the medical evidence we notice that thedeceased suffered 3 major incised wounds leading to the severance of the blood vesselsand amputation of his hand near the wrist and the body in question was lying at thespot till the police came which was nearly 4 to 5 hours later but still the investigatingagency was unable to find any blood on the spot. Of course, the prosecution has givenan explanation that after the incident in question it had rained but even then it isdifficult to believe that even traces of blood could not have been found on the soil inspite of the rain. The absence of any such material also supports the prosecution casethat the incident in question might not have happened at the place of incident...’’(emphasis supplied)

A22. On this aspect there is only tangential observation in evidenceof PW-6, who stated that the Deceased’s “injured body part had beenwrapped with tehmand”. This statement fails to explain the lack of anyblood stains at the crime scene. This does not explain why the said cloth,tehmand, was not produced by the prosecution. Accordingly, we findthat the prosecution’s failure to explain recovery of blood on the chair orBthe place where the Deceased was sitting when he was fired at seventimes is fatal. The non-production of blood-stained clothes is equallyfatal.

23. Re: lack of material recoveries: In the present case, theaccused are alleged to have attacked the Deceased with the aid ofCfirearms, and the Deceased is supposed to have seven gunshot wounds,yet the prosecution has failed to make material recoveries from the placeof the occurrence of the crime. The prosecution has neither producedthe empty cartridges from the scene of the crime, nor the pellets fromthe Deceased’s body. The prosecution has not been able to recover anyDweapons alleged to have been used in the incident. Further, it wasincumbent upon the prosecution to examine the ballistic experts to provewhether the gunshots came from one or different guns. The prosecutionhowever, failed to examine ballistic experts or even produce the emptycartridges. Perhaps it is in the circumstance of lack of any recovery ofempty cartridges that the prosecution found it convenient not to examineEa ballistic expert. Lack of such material recoveries compounds doubtsabout the story of the prosecution in the manner that they have set out.24. Re: inconsistencies in the two dying declarations: Finally,as noted above, there are inconsistencies in the two dying declarationsof the Deceased, as to the motive of the crime, the place of the incident,Fand the presence of other persons at such place. The first dyingdeclaration, the FIR, was recorded by the Deceased at the police stationon 24.08.1979. It states that at 6:30 p.m., the three accused came andfired at him and PW-6 with pistol because he was witness in caseagainst A-2. The second dying declaration, recorded by PW-5 afterGmedical certification from PW-9 on 25.08.1979, states that the incidenttook place in front of the gate of his quarters, in front of which, A-3’sflour mill is located. The three accused came from the flour mill, and A-1 and A-2 fired shot with revolver while A-3 held him fastened. Italso states that, at the relevant time and place, his peon Sakhar Ali Begand 5-6 other persons were also present. Notably, he stated that he had

rusticated A-2 from college after he failed in the 11[th] standard, and thismotivated the crime.

25. The Trial Court rejected the statement made on 27.08.1979as dying declaration, noting that:

“The new facts introduced by Iqbal Bahadur Saxena createa suspicion that this dying declaration was result ofconsultation and as such I do not consider it safe to placereliance on it.”

26. Without reversing this finding about the later dying declaration,the High Court proceeded on the premise that in the event of two dyingdeclarations, the court may accept the one which is recorded prior inpoint of time, and the corroboration of the first dying declaration by thelater declaration is only rule of prudence.

27. In our opinion, the second dying declaration comprising fartoo many additions and improvements, was correctly rejected by theTrial and the High Court. The first declaration was recorded in the policestation, right before the Deceased left for the hospital in critical condition,without any certification of whether the Deceased was medically fit tomake dying declaration. In fact, this is corroborated by the testimonyof PW-8 who stated that the Deceased was in semi-conscious conditionon his way to the hospital. Further, PW-11 who examined the Deceasedalso stated that his condition was serious. The dubitable circumstancesin which the FIR was recorded, sought to be treated as the first dyingdeclaration, have already been considered by us in the initial part of ouranalysis. For all these reasons, we are of the opinion that it is not safe toconsider the FIR as dying declaration as well.

28. In Mehiboobsab Abbasabi Nadaf v. State of Karnataka[10],this Court had similarly refrained from accepting any of the multipledying declarations in light of their manifest inconsistencies:

“7. Conviction can indisputably be based on dyingdeclaration. But, before it can be acted upon, the same mustbe held to have been rendered voluntarily and truthfully.Consistency in the dying declaration is the relevant factorfor placing full reliance thereupon. In this case, the deceasedherself had taken contradictory and inconsistent stand in

Adifferent dying declarations. They, therefore, should not beaccepted on their face value. Caution, in this behalf, isrequired to be applied.”

29. Conclusions: Having considered the matter in detail, andhaving noted that the prosecution failed to recover blood-stained materialsBfrom the place of occurrence, empty cartridges, pellets, or any otherweapon used for commission of the crime, coupled with the contradictionsand unnatural conduct of the eye witnesses PW-1 and PW-6, and theinconsistencies in the two dying declarations, we believe that theprosecution has not proved the case beyond reasonable doubt, and theaccused are entitled to be given the benefit of doubt.C30. Accordingly, in the event of failure of the prosecution to provethe case against the accused beyond the reasonable doubt, the accusedwill be entitled to be acquitted from all the charges. In the result, wepass the following order: -

Di.Criminal Appeal Nos. 2224-2225 of 2010 is allowed.

ii. The judgment passed by the High Court of judicature atAllahabad in Criminal Appeal Nos. 290 and 587 of 1981 dated10.02.2010 and the judgment of the Sessions Judge, Bareillyin Sessions Trial No. 420 of 1979 dated 31.01.1981 are quashedand set aside.E

iii. The appellants are acquitted of all the charges, and their bailbonds stand discharged. Pending interlocutory applications, ifany, stand disposed of in terms of the above.

FNidhi Jain(Assisted by : Tamana, LCRA)

Appeal allowed.