{"id":35349,"date":"1996-03-12T00:00:00","date_gmt":"1996-03-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/jagdish-narain-anr-vs-state-of-u-p-on-12-march-1996"},"modified":"2017-03-26T19:19:11","modified_gmt":"2017-03-26T13:49:11","slug":"jagdish-narain-anr-vs-state-of-u-p-on-12-march-1996","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/jagdish-narain-anr-vs-state-of-u-p-on-12-march-1996","title":{"rendered":"Jagdish Narain & Anr vs State Of U.P on 12 March, 1996"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Jagdish Narain & Anr vs State Of U.P on 12 March, 1996<\/div>\n
Equivalent citations: JT 1996 (3)\t89, \t 1996 SCALE (2)650<\/div>\n
Author: M M.K.<\/div>\n
Bench: Mukherjee M.K. (J)<\/div>\n
           PETITIONER:\nJAGDISH NARAIN & ANR.\n\n\tVs.\n\nRESPONDENT:\nSTATE OF U.P.\n\nDATE OF JUDGMENT:\t12\/03\/1996\n\nBENCH:\nMUKHERJEE M.K. (J)\nBENCH:\nMUKHERJEE M.K. (J)\nANAND, A.S. (J)\n\nCITATION:\n JT 1996 (3)\t89\t  1996 SCALE  (2)650\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
\t\t      J U D G M E N T
\nM.K. MUKHERJEE,J.\n<\/p>\n
     Jagdish Narain,  the appellant  No.1, alongwith his two
\nsons Avdhesh  and Avinash  and two  friends Rameshwar Dayal,
\nthe appellant  No.2, and  Surya Prakash\t was  tried  by\t the
\nAdditional Sessions  Judge, Pilibhit, for rioting and murder
\nof his\tstep brother  Jitendra Nath.  The trial\t ended in an
\nacquittal; and\taggrieved thereby  the\tState  preferred  an
\nappeal. During\tthe pendency  of the appeal Avdesh and Surya
\nprakash\t died  and  consequently  their\t appeal\t abated.  As
\nregards others,\t the High  Court affirmed  the acquittal  of
\nAvinash\t but  reversed\tthat  of  the  two  appellants\t(the
\nrespondents therein)  and convicted and sentenced them under
\nSections 148  and 302,\tread with Section 149 IPC. The above
\norder of  conviction and sentence is under challenge in this
\nappeal preferred under Section 379 Cr.P.C.\n<\/p>\n
     Shorn of  details\tthe  prosecution  case\tis  that  on
\nFebruary 11,  1977 the deceased, his son Achal Kumar (P.W.1)
\nand his\t servant Devi Ram (P.W.2) were carrying sugarcane in
\na bullock-cart\tfrom their village Mar to a mill in Bilsanda
\nfor getting  the same  weighed. While  P.Ws. 1 and 2 were in
\nthe bullock  cart with\tthe latter  driving it, the deceased
\nwas following  the cart on foot. At or about 2 P.M. when the
\ncart had,  after crossing  a culvert  situated on the kachha
\nroad, reached  near the\t field of  one Ram  Autar, the\tfive
\naccused persons\t came out from behind a heap of straws armed
\nwith deadly  weapons including guns. Then the appellant No.1
\nfired a\t shot at  Jitendra Nath\t felling him  down. The\t gun
\nwhich the  deceased was\t carrying also\tfell  down.  On\t the
\nexhortation of\tAvinash and  Avdesh, the appellant No.2 also
\nfired  a   shot\t hitting   Jitendra  Nath.   Thereafter\t the
\nmiscreants fled away alongwith the gun of the deceased.\n<\/p>\n
     Achal Kumar  (P.W.1) then\trushed\tto  Bilsanda  Police
\nStation, which\twas at a distance of one mile, and lodged an
\ninformation about  the incident.  On that information a case
\nwas registered\tagainst the  accused persons  and  Inspector
\nD.R. Thapalyal (P.W.6) took up investigation. He went to the
\nscene of  occurrence accompanied  by other  police personnel
\nand after  holding inquest  upon the  dead body\t sent it for
\npost-mortem examination.  He prepared a site plan and seized
\nsome blood  stained earth, two pellets and one pair of shoes
\nfrom the  site. On  completion of investigation he submitted
\nchargesheet against  the accused  persons and  in due course
\nthe case was committed to the Court of Session.\n<\/p>\n
     The accused  persons pleaded  not guilty to the charges
\nlevelled against  them and  their defence  was that they had
\nbeen falsely implicated.\n<\/p>\n
     To sustain\t the charges  levelled against\tthe  accused
\npersons the  prosecution relied\t upon the ocular accounts of
\nAchal Kumar (P.W.1) and Devi Ram (P.W.2), who were allegedly
\nin the\tcart, and  Daya Ram  (P.W.3) who claimed that he was
\npassing along  the road\t at the\t material time. Besides, the
\nprosecution  examined\tthe  doctor,  who  held\t post-mortem
\nexamination upon the deceased, the Investigating Officer and
\nsome other  formal witnesses. The reasons which weighed with
\nthe trial  Court to  disbelieve\t the  evidence\tof  the\t eye
\nwitnesses and,\tfor that matter the prosecution case, are as
\nunder:\n<\/p>\n
i)   The testimonies of the eye witnesses stood contradicted
\nby their  earlier  statements  recorded\t under\tSection\t 161
\nCr.P.C.;\n<\/p>\n
ii)  Though, according\tto the\teye witnesses,\tthe deceased
\nwas attacked while going along the sait (road) his dead body
\nwas found in the field (of Ram Autar) and no explanation was
\noffered by the prosecution to reconcile the anomaly;\n<\/p>\n
iii) Even though  the Investigating Officer admitted that he
\nknew from  the very  beginning about  the importance  of the
\nplace from  where the  shots were  fired he did not indicate
\nthat place  in the  site plan  he prepared  and such failure
\nmade the investigation faulty and suspicious;\n<\/p>\n
iv)  No attempt\t was made  by the  Investigating Officer  to
\nascertain to whom the pair of shoes found near the dead body
\nbelonged; and\n<\/p>\n
v)   A number  of documents  were filed\t on  behalf  of\t the
\naccused persons\t to show  that the  deceased had enmity with
\nother persons also and, therefore, it could not be said that
\nthey were  the only  persons who  were likely  to commit the
\nmurder of  Jitendra Nath,  more so  when he was armed with a
\ngun.\n<\/p>\n
     In reversing  the order  of acquittal  and passing\t the
\nimpugned order the High Court first reappraised the evidence
\nin the\tlight of  the above  findings and  demonstrated that
\neach of\t them was  perverse. It then considered the evidence
\nof the\tthree eye witnesses to ascertain whether it could be
\nsafely\trelied\t upon  to   base  a   conviction.  On\tsuch
\nconsideration the High Court found that PWs 1 and 2 were the
\nmost probable  and natural witnesses and that their evidence
\nwas  credit  worthy.  The  High\t Court,\t however,  left\t the
\nevidence of  PW 3  out of consideration as, according to it,
\nhe was\tnot an\tindependent witness.  The High Court further
\nfound that the evidence of P.W.1 stood fully corroborated by
\nthe PIR which was lodged within half an hour of the incident
\nand  that   the\t evidence  of  both  P.Ws.  1  and  2  stood
\ncorroborated by the medical evidence.\n<\/p>\n
     This being\t a statutory  appeal we have, for ourselves,
\ncarefully perused  the evidence\t adduced by  the prosecution
\n(no evidence  was led  by the  defence) particularly that of
\nP.W.1 and  2 keeping  in view  the judgments  of the learned
\nCourts below; and we are constrained to say that none of the
\ngrounds\t canvassed   by\t the   trial  Court  to\t acquit\t the
\nappellants  can\t  be  sustained.  The  contradictions  which
\npersuaded the  trial Court  to disbelieve  the eye witnesses
\nrelated to their omissions to make certain statements before
\nthe Investigating Officer, which they made before the Court.
\nOn perusal  thereof we find that the omissions were so minor
\nand insignificant that they did not amount to contradictions
\nat all.\t To eschew  prolixity of  this judgment we, however,
\nrefrain from  detailing them  except referring\tto  one,  to
\nillustrate the entirely wrong approach of the trial Court in
\nthis regard.  PW 2  testified that while driving the cart he
\nwas sitting  on the  bundles of\t the sugarcane\tbut  in\t his
\nstatement recorded  under Section  161 Cr.P.C.\the  did\t not
\nstate that  he was  so seated.\tIndeed, it  is only for this
\nminor omission that the trial Court found the evidence of PW
\n2 wholly unreliable.\n<\/p>\n
     As regards\t the comment  of the  trial Court  that\t the
\nprosecution made  no attempt to dispel the anomaly about the
\nplace where  the deceased was attacked and his dead body was
\nfound, we are in complete agreement with the observations of
\nthe High Court that the above comment was the outcome of non
\nconsideration of  the evidence.\t P.W.1 testified  that while
\nthe cart was proceeding on the kacha road and it had reached
\nthe place where the road turned towards the east, his father
\nmoved on  to the  pagdandi, (hilly  circuitous track)  which
\npasses through\tthe field  of Ram  Autar. According  to\t the
\nevidence of  P.W.6, which  remained uncontroverted, the dead
\nbody of\t Jitendra was  found lying  near the pagdandi and he
\nheld  inquest\tthere.\tThe   evidence\tof  the\t prosecution
\nwitnesses thus\tclearly proves\tthat Jitendra  Nath met with
\nhis death  at the  place where\this dead body was Lying. The
\nfinding of  the trial Court in this regard must therefore be
\nsaid to be perverse.\n<\/p>\n
     In responding  to the next criticism of the trial Court
\nregarding  the\tfailure\t of  the  Investigating\t Officer  to
\nindicate in the site plan prepared by him the spot wherefrom
\nthe shots  were allegedly  tired by  the appellants  and its
\nresultant effect  upon the  investigation itself,  the\tHigh
\nCourt observed\tthat such  failure did\tnot detract from the
\ntruthfulness of\t the eye  witnesses and\t only amounted to an
\nomission on  the part  of the  Investigating Officer. In our
\nopinion neither\t the criticism\tof the\ttrial Court  nor the
\nreason ascribed\t by the\t High Court  in its  rebuttal can be
\nlegally\t sustained.   While  preparing\t a  site   plan\t  an
\nInvestigating Police  Officer can  certainly record  what he
\nsees and  observes, for\t that will be direct and substantive
\nevidence being\tbased on  his personal knowledge; but as, he
\nwas not\t obviously present  when the incident took place, he
\nhas to\tderive knowledge  as  to  when,\t where\tand  how  it
\nhappened from  persons who  had seen  the incident.  When  a
\nwitness testifies  about what he heard from somebody else it
\nis ordinarily  not admissible in evidence being hearsay, but
\nif the\tperson for  whom he heard is examined to give direct
\nevidence within\t the meaning  of Section  60 of the Evidence
\nAct,  the   former’s  evidence\t would\tbe   admissible\t  to
\ncorroborate  the  latter  in  accordance  with\tSection\t 157
\nCr.P.C.. However  such a statement made to a Police Officer,
\nwhen he\t is investigating into an offence in accordance with
\nChapter XII of the Code of Criminal Procedure cannot be used
\nto even corroborate the maker thereof in view of the embargo
\nin Section 162 (1) Cr.P.C. appearing in that chapter and can
\nbe used\t only to  contradict him  (the maker)  in accordance
\nwith the  proviso thereof,  except in those cases where sub-
\nsection (2)  of the  section appeals. That necessarily means
\nthat if in the site plan P.W.6 had even shown the place from
\nwhich the  shots were allegedly fired after ascertaining the
\nsame from  the eye witnesses it could not have been admitted
\nin evidence being hit by Section 162 Cr.P.C. The law on this
\nsubject has been succinctly laid down by a three Judge Bench
\nof this\t Court in  Tori Singh vs. State of U.P., AIR 1962 SC\n<\/p>\n
399. In\t that  case  it\t was  contended\t on  behalf  of\t the
\nappellant therein  that if  one looked at the sketch map, on
\nwhich the place where the deceased was said to have been hit
\nwas marked,  and compared  it with  the\t statements  of\t the
\nprosecution witnesses  and the medical evidence, it would be
\nextremely improbable  for the  injury which  was received by
\nthe deceased  to have  been caused  on that part of the body
\nwhere it had been actually caused if the deceased was at the
\nplace marked  on the  map. In repelling the above contention
\nthis Court observed, inter alia,:\n<\/p>\n
     “……….the mark  on the sketrh-
\n     map was  put by  the  Sub-Inspector
\n     who  was\tobviously  not\tan  eye-<\/p><\/blockquote>\n
     witness to\t the incident.\tHe could
\n     only have put it there after taking
\n     the   statements\t of   the    eye
\n     witnesses. The  marking of the spot
\n     on\t  the\tsketch-map   is\t  really
\n     bringing on  record the  conclusion
\n     of the  Sub-Inspector on  the basis
\n     of\t the   statements  made\t by  the
\n     witnesses\tto   him.  This\t in  our
\n     opinion would  not be admissible in
\n     view of the provisions of S. 162 of
\n     the Code of Criminal Procedure, for
\n     it is  in effect  nothing more than
\n     the statement  of the Sub-Inspector
\n     that  the\teye-witnesses  told  him
\n     that the  deceased was  at such and
\n     such place\t at the time when he was
\n     hit.  The\t sketch-map   would   be
\n     admissible so  far as  it indicates
\n     all  that\t the  Sub-Inspector  saw
\n     himself at\t the spot;  but any mark
\n     put on  the sketch-map based on the
\n     statements made by the witnesses to
\n     the    Sub-Inspector    would    be
\n     inadmissible in  view of  the clear
\n     provisions of  S.162 of the Code of
\n     Criminal Procedure as it will be no
\n     more than\ta statement  made to the
\n     police during investigation.”<\/p><\/blockquote>\n
\t\t     (emphasis supplied)
\nWhile on this point, it will be pertinent to mention that if
\nin a  given case  the site plan is prepared by a draftsman –
\nand not\t by the\t Investigating\tOfficer\t –  entries  therein
\nregarding the  place from  where shots\twere fired  or other
\ndetails derived\t from other witnesses would be admissible as
\ncorroborative evidence as has been observed by this Court in
\nTori Singh’s case (supra) in the following passage:\n<\/p>\n
     “This   Court   had   occasion   to
\n     consider  the  admissibility  of  a
\n     plan drawn\t to scale by a draftsman
\n     in which  after  ascertaining  from
\n     the  witnesses  where  exactly  the
\n     assailants and the victims stood at
\n     the  time\t of  the  commission  of
\n     offence, the draftsman put down the
\n     places in\tthe map,  in Santa Singh
\n     v. State  of Punjab,  AIR<\/a>\t1956  SC\n<\/p><\/blockquote>\n
     526. It  was held\tthat such a plan
\n     drawn to  scale was  admissible  if
\n     the  witnesses   corroborated   the
\n     statements of  the\t draftsman  that
\n     they  showed  him\tthe  places  and
\n     would not\tbe hit\tby S.162  of the
\n     Code of Criminal Procedure.”\n<\/p><\/blockquote>\n
\t\t     (emphasis supplied)
\nThe trial  Court ought not to have also made much out of the
\nfailure on the part of the Investigating Officer to find out
\nto whom\t the pair of shoes found near the dead body belonged
\nfor the\t prosecution rested  its case upon eye-witnesses and
\nnot circumstantial  evidence. If the prosecution intended to
\nprove the  accusation levelled\tagainst\t the  appellants  by
\ncircumstantial evidence, then proof of the circumstance that
\nthe shoes  belonged to one of them would certainly have been
\nincriminating but  when the prosecution rested its case upon
\nthe evidence  of the  eye witnesses  that question was of no
\nsuch moment. In any event, the lacunae as pointed out by the
\ntrial Court  could not have in any way impaired the evidence
\nof the\teye witnesses  nor affected the prosecution case, as
\nrightly observed by the High Court.<\/p><\/blockquote>\n
     The last  reason given by the trial Court to disbelieve
\nthe prosecution\t case in  the context  of the  fact that the
\ndeceased had  enmity with  others is  absurd for such a plea
\nwould have  been available  to anyone  who might  have\tbeen
\narraigned for  the murder.  The High  Court,  was  therefore
\nfully justified\t in observing  that the\t deceased might have
\nenmity with  others but the question as to who had committed
\nthe murder  was to  be answered by the Court on the basis of
\nthe evidence adduced.\n<\/p>\n
     Coming now to the evidence on record, we find that both
\nPWs 1  and 2  were the most probable witnesses, as they were
\naccompanying the  deceased at  the material  time  and\tthat
\ninspite of  a detailed\tsearching cross-examination  nothing
\ncould be  elicited by the defence to discredit or contradict
\nthem. Besides,\twe find\t the FIR that P.W. 1 promptly lodged
\nwithin half  an hour  of the  incident,\t fully\tcorroborates
\nP.W.1. The  evidence of\t the doctor (PW 4), who held autopsy
\nand found  two gunshot\twounds on the person of the deceased
\nalso  corroborates   the  evidence  of\tthe  above  two\t eye
\nwitnesses. We  are, therefore,\tin agreement  with the\tHigh
\nCourt that  the prosecution  succeeded in proving that owing
\nto the\ttwo shots  fired by the appellants Jitendra Nath met
\nwith his  death. The  High Court,  however, was\t not legally
\njustified in  convicting the  appellants under\tSections 148
\nand 149\/302  IPC for  consequent upon the order of acquittal
\nrecorded by it in favour of Avdhesh, Section 148 and 149 IPC
\ncould not  have any  manner of\tapplication –  it being\t the
\npositive  case\t of  the  prosecution  that  only  the\tfive
\narraigned were the miscreants. Since, however, the manner in
\nwhich the  incident took  place clearly\t indicates that\t the
\nappellants shared  the common  intention of  committing\t the
\nmurder of  Jitendra Nath  they are liable for conviction for
\nthe murder with the aid of Section 34 IPC.\n<\/p>\n
     On the conclusions as above we set aside the conviction
\nand sentence  of the  appellants under\tSection 148 IPC; and
\nalter their  conviction under  Section 302\/149 to 302\/34 IPC
\nbut maintain  the sentence  of imprisonment for life imposed
\nfor the\t former. With  the above modifications the appeal is
\ndismissed.  The\t appellants,  who  are\ton  bail,  will\t now
\nsurrender to their bail bonds to serve out the sentence.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Jagdish Narain & Anr vs State Of U.P on 12 March, 1996 Equivalent citations: JT 1996 (3) 89, 1996 SCALE (2)650 Author: M M.K. Bench: Mukherjee M.K. (J) PETITIONER: JAGDISH NARAIN & ANR. Vs. RESPONDENT: STATE OF U.P. DATE OF JUDGMENT: 12\/03\/1996 BENCH: MUKHERJEE M.K. (J) BENCH: MUKHERJEE M.K. (J) ANAND, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-35349","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nJagdish Narain & Anr vs State Of U.P on 12 March, 1996 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/jagdish-narain-anr-vs-state-of-u-p-on-12-march-1996\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Jagdish Narain & Anr vs State Of U.P on 12 March, 1996 - 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