MULLOO v. STATE OF U P — 1998 DIGILAW 182 (ALL)

N. S. GUPTA, J. This criminal appeal is directed against the judgment and order of conviction dated 3-5-1980, passed by Sri M. M. Saran, the then Sessions Judge, Lalitpur, convicting the accused appel lants under Section 302/114,1. P. C. and 302, I. PC. respectively and sentencing them to undergo imprisonment for life. 2. The prosecution story briefly stated is as follows: The accused appellants Mulloo and Summa are real brothers. They are resi dents of village Bent, police station Jakhlaun, district Lalitpur. On 11-10-1979, at about 8. 30 a. m. accused appellant Summa was taking a bath at the water tap near the house of the deceased Chukkha. The deceased Chukkha objected to it saying that the ladies of the Mohalla were waiting to fill water. Accused Summa abused him. The deceased Chukka asked accused Summa to refrain from abusing him. In the meantime Summas brother Mulloo came on spot. He cut out battons of Naseni with the help of Surya (a sharp edged weapons like Hasia) and handed over the pati Exh. 1 to Summa and asked Summa that Chukka should be killed. On this Summa rushed towards the deceased Chukkha and gave him a Pati blow on the back side of his neck. The deceased Chuk kha fell down by the side of his chest. He tried to get up but again fell down from the side of his back. This occurrence was wit nessed by Gopal (RW. 2), Rabooda (P. W. 3), the brother of the deceased, Pyare Lal (P. W. 1), Bhajju (P. W 4) & Ors. The deceased was lifted by his brother Rabooda (P. W 3) and Gopal (P. W. 2 ). He was kept on a cot and while he was being taken to police out- post pali, Police Sta tion Jakhlaun, he succumbed to his in juries. Rabooda (P. W. 3) then went to his village and got a report Exh. Ka 11 scribe by Hira Lal Jain (P. W. 7) and started towards police out-post pali. When he reached about one and half furlong from his village, he met Head-constable Jogendra Singh (P. W. 11) who was coming from the opposite direction. He handed over the F. I. R. , Exh. Ka. 11 to him. The head constable went to the village of the complainant. When he reached about one and half furlong from his village, he met Head-constable Jogendra Singh (P. W. 11) who was coming from the opposite direction. He handed over the F. I. R. , Exh. Ka. 11 to him. The head constable went to the village of the complainant. He saw the dead body of the deceased and then went in search of the accused appellants and succeeded in apprehending the accused appellants from their houses. Head constable Jogcndra Singh (P. W. 11) took the accused appel lants and the complainant to police out post pali where he registered a case under Section 302,1. P. C. against the accused ap pellants and the investigation followed. 3. P. W. 6 S. I. Hand Kishore who was then working as S. O. Jakhlaun, district Lalitpur took up the investigation for the case. He recorded the statement of Bhajju (P. W 4), Gopal (P. W. 2), Pyare Lal (P. W. 1) and Haridas. He also examined the ac cused appellants and after needful inves tigation into the matter submitted charge-sheet against the accused appellants. After committal of the case before the Court of Sessions the case came up for trial before the Sessions Judge, Lalitpur who framed charges under Section 302/114, I. P. C. against the accused appellant Mulloo and under Section 302, I. P. C. against the ac cused appellant Summa. The accused ap pellants pleaded not guilty and claimed trial. Accused appellant Mulloo further pleaded that he was not present at the spot at the time of the occurrence. He stated that he was doing service at the house of one Sitaram Lahoria. He claimed that Hiralal Jain (P. W. 9) the scribe of thef. I. R. had obtained a promissory note for Rs. 500 from him. He was paying Rs. 500 per annum to this Hira Lal Jain and had also been paying one quintal of food grains every year. He pleaded that he did not give the same in the year of the occurrence; He was, therefore, falsely implicated into this case at the behest of Hira Lal. The accused appellants did not adduce any evidence in their defence. 4. The prosecution examined as many as 11 witnesses. He pleaded that he did not give the same in the year of the occurrence; He was, therefore, falsely implicated into this case at the behest of Hira Lal. The accused appellants did not adduce any evidence in their defence. 4. The prosecution examined as many as 11 witnesses. Out of whom Pyare Lal (P. W. 1), Gopal (P. W. 2), Rabooda (P. W. 3) and Bhajju (P. W 4) were the witnesses of fact and have given eye-witness account of the occurrence in question P. W. 5 Dr. R. P. Gupta was the medical office of the district hospital Lalitpur who conducted the autopsy on the dead body of the deceased on 12-10-79 at 3. 30 p. m. and found the position as under: 5. The deceased was aged about 45 years. He had died about one and half day back. His body was average built. Rigor Mortis passed off. Post-mortem staining and decomposition had started. Green ish- colouraiion was there. Abdomen was dis tended. Eyes were closed. There was sub-conjectural hemorrhage on right side. Colored fluid was coming out from ear, nostrils and mouth. 6. The Doctor found the following ante-mortem injuries on the person of the deceased: (1) Contusion 16cmx 11 cm on right side scalp in the region of forehead, temporal region and right eye with sub-conjuncture hemorrhage right side. (2) Two abrasions 3 cm apart on back right side upper part No. (1)1 cm x 1 cm and No. (2) 2 cmx 1cm. (3) Contusion 10 cm x K cm on front of chest leftside upper part. 7. On internal examination of head and neck the doctor found sub-contenious hemorrhage under Injury No. 1. Membranes were congested, subdural hemorrhage on right side was there. He found hemorrhage also under injury No. 3 with fracture of Ilnd and Illrd rib, left side, pleural cavity was full of blood. 8. Dr. R. P. Gupta opined that the deceased had died due to shock and hemorrhage which resulted from the aforesaid ante-mortem injuries. He main tained that the ante-mortem injuries found on the person of the deceased were sufficient in the ordinary course of nature to cause death. He stated that injury No. 1 could have been caused by means of Pati Ex. 1 and injury Nos. 2 & 3 by means of fall. 9. P. W. 6 S. O. Nand Kishore Mai was the Investigating Officer. He stated that injury No. 1 could have been caused by means of Pati Ex. 1 and injury Nos. 2 & 3 by means of fall. 9. P. W. 6 S. O. Nand Kishore Mai was the Investigating Officer. P. W 7 Constable Ram Narain was a formal witness who took the dead body of the deceased for post-mortem examination. P. W. 8 Con stable Ghanshyam Das was also a formal witness who sworn on affidavit and produced Pati Ex. 1 before the Court below. P. W. 9 Hira Lal was the scribe of the F. I. R. P. W. 10 S. I. Raj Kishore Mohan Gautam prepared the inquest report. P. W. 11 Headconstable Jogender Singh proved the G. D. report and chick report. 10. The learned trial Court placing reliance upon the prosecution evidence convicted and sentenced the accused ap pellants as aforesaid. Hence this appeal. 11. We have heard learned Counsel for the parties and have gone through the evidence on record. 12. Sri Samir Jain, learned Counsel for the accused appellants has vehemently argued before us that the medical evidence belies the ocular evidence of the witnesses of fact viz. Pyare Lal (P. W 1), Gopal (P. W 2), Rabooda (P. W. 3) and Bhajju (P. W. 4 ). We are unable to agree with the submis sions made by the learned Counsel for the accused appellants in this behalf for the simple reason that Dr. R. P Gupta (P. W 5) who conducted autopsy on the dead body of the deceased clearly opined that injury No. 1 which was a contusion measuring 16 cm x 11 cm on right side scalp in the region of fore-head temporal region was suffi cient in the ordinary course of nature to cause death and that this injury could have been caused by means of Pali Exh. 1, with which this witness was confronted during the course of his evidence before the Court below. He further specifically stated that injury Nos. 2 and 3 could have been caused by means of a fall on the floor made of stone. 13. The clear case of the prosecution as put forward in the F. I. R. Exh. Ka. 1 and stated by Rabooda (P. W. 3), who is the real brother of the deceased that at the time of the occurrence which took place at about 8. 13. The clear case of the prosecution as put forward in the F. I. R. Exh. Ka. 1 and stated by Rabooda (P. W. 3), who is the real brother of the deceased that at the time of the occurrence which took place at about 8. 30 a. m. , the accused appellant Summa was taking bath at water tap. Certain ladies of the Mohall a were standing there for filling of water. The deceased Chukkha asked the accused appellant Summa to refrain from bathing, thereupon Summa abused the deceased. Meanwhile accused appellant Mulloo came. He gave a Pati Ex. 1 to Summa. Summa came rushing towards the deceased and assaulted the deceased by means of that Pati causing injury in the neck of the deceased. The deceased fell down from the side of his chest. When he tried to get up, then again he fell down from the back side. 14. The post-mortem report of the deceased reveals that on internal examina tion of the head and neck, the doctor found sub- contenious haemorrhage under in jury No. 1. That being so it is clear that injury No. 1 was the result of the assault made by the accused appellant Summa upon the deceased. That injury being sufficient in the ordinary course of nature to cause death, it appears that the deceased had died due to shock and haemorrhage which resulted from the said injury. Thus, it cannot be said that the medical evidence of Dr. R. P Gupta is in any way in conflict with the ocular evidence of the witnesses of fact. 15. It is important to note here that Pyare Lal (P. W. 1) who had given eye-wit ness account of the incident had no enmity with the accused appellants. He stated that he has been doing the job of collecting hides and skins, and that in this connection he had gone to the village of occurrence on the day of occurrence and had seen the accused appellant Summa assaulting the deceased by means of Pati of the ladder which was cut away by the co-accused Mul loo and that accused Summa had assaulted the deceased from the said Pati from towards the back side of the neck of the deceased, with the result the deceased had fallen down. 16. Gopal (PW. 16. Gopal (PW. 2) was a close neigh bour who has got a house at a distance of about 50-60 paces from the scene of occur rence. He stated that he too has been doing the job of collecting hides and skins and that on the day of occurrence Pyare Lal (PW 1) had gone to his house for collect ing the hides. 17. P. W. 3 Rabooda is the real brother of the deceased has specifically stated about the assault being made by the ac cused appellant Summa by means of Pati Ex. 1 on the person of the deceased. 18. Similarly Bhajju (P. W 4) who is close neighbour of the complainant had stated that accused Summa assaulted the deceased by means of a pati which was given to him by his brother Mulloo. 19. The circumstances that Pyare Lal (P. W. 1) Gopal (P. W. 2) and Bhajju (P. W 4) had no enmity with the accused appellants ; the circumstances that the time of occur rence was 8. 00 a. m. when a number of ladies of the Mohall a were standing wait ing for filling up their pots by means of water ; the circumstances that unmindful of the necessity of his neighbours and vil lage ladies the accused appellant Summa was going on bathing ; the circumstances that the deceased Chukkha sympathising with the village ladies asked the accused appellant Summa to refrain from bathing and the circumstances that feeling an noyed on that score, Summa took out a pati Exh. 1 which was cither provided by his brother Mulloo or was taken up by him and had assaulted the deceased by the same, in consequence of which the deceased had ultimately died while he was being taken to the police out-post, fully got to show that the accused appellant Summa was definitely responsible for causingmur-derous assault on the deceased. 20. It is important to note here that accused Summa had assaulted the deceased by means of a Pati Exh. 1, on being provoked by the assertion of the deceased to not continue with bathing ; it appears that accused Summa took the as king of the deceased as a challenge to his authority and was deprived of the powei of his self control. 1, on being provoked by the assertion of the deceased to not continue with bathing ; it appears that accused Summa took the as king of the deceased as a challenge to his authority and was deprived of the powei of his self control. Thus it appears to us that accused Summa was responsible for caus ing the death of the deceased without pre meditation and having been deprived of the power of his self control by the grave and sudden provocation which was given to him by the deceased. As such we find the accused appellant Summa to be guilty of committing culpable homocide not amounting to murder, an offence punish able under Section 304, Part II, I. P. C. 21. As regards Mulloo, he was admit tedly the real brother of accused Summa. It is probable to believe that hearing the scuffle going on in between the deceased and his brother Summa this accused may have arrived at the spot, but so far as the fact that he had abated the offence of mur der by cutting a pati of a ladder and provid ing the same to the accused Summa with which he committed the murder of the deceased docs not appear to us to be a truthful one for the simple reason that if Mullo wanted to share the guilty intention of his brother Summa for committing the assault or for that matter murder of the deceased, there was no necessity for him to cut away a Pati by means of a sharp edged weapon and then to provide the same to his brother. In that event, he would have provides that very weapon with which he had cut down the ladder to his brother Summa and Summa should have done away with the deceased by means of that weapon. 22. The circumstances that according to the prosecution version and eye-witness 1999 (1 ). TIC-3t account of the four witnesses of fact Mul loo had first cut down the ladder and then gave Pati Ex. 1 to Summa and Summa then assaulted the deceased by means of the same appear to be improbable in view of the preponderance of the circumstances of the case. 23. It was asserted by the accused Mulloo in his examination under Section 313, Cr. 1 to Summa and Summa then assaulted the deceased by means of the same appear to be improbable in view of the preponderance of the circumstances of the case. 23. It was asserted by the accused Mulloo in his examination under Section 313, Cr. P. C. that he was falsely implicated into this case on the behest of Hira Lal Jain (P. W 9), the scribe of the F. I. R. in whose favour he had executed a promissory note for Rs. 500 about fifteen years back and was regularly paying one quintal of food grain every year. He stated that in the year in question since he did not give the said grain Hira Lal Jain (P W 9) got him falsely implicated into this case. 24. Hira Lal Jain (P. W. 9) was admit tedly the scribe of the EI. R. He was a witness of the inquest report as also the recovery memo of Pati Ex. I. According to the eye-witness account no assault was made by this accused Mulloo ; Thus the possibility that he was falsely roped into this case at the behest of the scribed of the EI. R. Hira Lal Jain (P. W 9) cannot be ruled out. 25. It was laid down by the apex Court in Ugarahirv. State of Bihar, A. I. R. 1965 S. C 277, as under: "the maxim falsus in uno, fahus in om nibus (false in one thing, false in every thing) is neither a sound rule of law nor a rule of practice. Hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or em bellishments. It is, therefore, the duty of the Court to scruiinise the evidence carefully and, in terms of the felicitous metaphor, spare the gram from the chaff. But, it cannot obviously des-believe the substratum of the prosecution and reconstruct a story of its own out of the rest. " 26. Thus having regards to the preposition of law laid-down in the said ruling and after shifting chaff from the grain and truth from the falsity, we con sider it safe to trust upon the ocular evidence of the witnesses of fact viz. " 26. Thus having regards to the preposition of law laid-down in the said ruling and after shifting chaff from the grain and truth from the falsity, we con sider it safe to trust upon the ocular evidence of the witnesses of fact viz. Pyare Lal (P. W 1), Gopal (P. W. 2), Rebooda (P. W. 3) and Bhajju (P. W 4) with regard to the participation of accused Summa alone and consider it safe to give benefit of doubt to accused Mulloo. 27. Shri Jain, learned Counsel for the accused appellants cited the following rulings: (1) Marudanal Augusti v. Slate of Kerala, 1980 SCC (Cri) 985, in which the Honble Supreme Court had laid down that once F. I. R. is held to be fabricated or brought into existence long after the occurrence the entire prosecution case will be collapsed. In the instant case before this Court the F. I. R. was quite a prompt one. That being so this ruling is of no help to the accused appellants. (2) Another ruling relied upon by the learned Counsel for the accused appellant is Mayappa Dhondanna Padeade v. State of Maharashtra, 1981 SCC (Cri) 790, regarding the appreciation of evidence. We have already taken the fact and circumstances of the case into consideration while appreciating the evidence or record ; and having regard to the possibility of roping in Mulloo, the brother of Summa falsely he has been given the benefit of doubt and has been acquitted. (3) Babu & Ors. v. State o U. P, 1983 SCC (Cri) 332. This ruling is of no help to the appel lants for the simple reason that the matter of easing depends on the individuals habits and no presumption can be raised that the presence of faucal matters in the large intestine necessarily leads to a conclusion that the entire theory of the prosecution is false. (4) The ruling of Govind Narain and another v. State of Rajasthan, 1993 Cri. L. J. 2598 is also or no help to the accused appellants for the obvious reasons that the F. I. R. of the present case and the ocular evidence of the witnesses regarding the manner of assault on the deceased is quite clear. (4) The ruling of Govind Narain and another v. State of Rajasthan, 1993 Cri. L. J. 2598 is also or no help to the accused appellants for the obvious reasons that the F. I. R. of the present case and the ocular evidence of the witnesses regarding the manner of assault on the deceased is quite clear. (5) The ruling of Meharaj Singh (L/nk)v. State o/v. P. , 1994 SCC (Cri) 1390, also does not help to the accused appellants for the reason that it is clear from the papers on record that a copy of the General Diary was sent to the Medi cal Officer alongwith the dead body of the deceased and other relevant papers. Thus in the result we find that the appeal in so far as it relates to accused appellant Summa is allowed in part to this extent that his conviction recorded by the trial Court under Section 302,1. P. C. is altered to one under Section 304-11,1. P. C. he is accordingly convicted under Section 304-11, I. P. C. and is sentenced to undergo R. I. for a period of five years and to pay a fine of Rs. 2,000 (Rs. Two thousand) and in default of the pay ment of the same to further undergo R. I. for a period of one year. 28. The appeal in so far as it relates to co-accused Mulloo, is allowed. His convic tion and sentence under Section 302/114, I. P. C. recorded by the Court below are set aside. The accused appellants are on bail. The bail of accused Summa is hereby can celled. C. J. M. Lalitpur is hereby directed to get the accused appellant Summa ar rested and commit him to prison forthwith and to submit compliance report to this Court within a period of three months. As regards accused Mulloo, his sureties are discharged and he need not to surrender. 29. Let a copy of this judgment alongwith the record of the case be sent to the Court below for needful compliance. Order accordingly. . .