JUDGMENT Vishnu Sahai, J.
1. Munesh was charged by the Additional Sessions' Judge/ Special Judge (E.C.), Bulandsahar, in Sessions Trial No. 748 of 2002, for offences punishable under Sections 302, I.P.C. and 376, I.P.C.
Vide Judgment and order dated 15-2-2003, the learned Judge convicted and sentenced him, in the manner stated hereinafter :--
(i) Under Section 302, I.P.C. to death; and
(ii) Under Section 376, I.P.C. to imprisonment for life. His sentences were directed to run concurrently.
Aggrieved by his convictions and sentences, Munesh has preferred Criminal Appeal No. 737 of 2003, in this Court.
Capital Sentence Reference No. 07 of 2003 arises out of the reference made by the learned Trial Judge under Section 366(1), Cr.P.C. for confirmation of death sentence of Munesh.
2, Since both Criminal Appeal No. 737 of 2003 and Capital Sentence Reference No. 07 of 2003 arise out of a common factual matrix and impugned judgment, we are disposing them of by one judgment.
3. Shortly stated, the prosecution case runs as under :--
The informant Kanchhi Lal P.W. 1 is the father of deceased Roshni. On 5-3-2002, at 11.05 pm. he lodged a written F.I.R. at police out post Khurja Junction (district Bulandshar), alleging therein that on the said date, at 4.30 p.m. when his daughter Roshni, aged about 11 years, had gone to prepare cow dung cakes in the cremation ground of Jatavs' and while she was pre-. paring them, the appellant forcibly took her in the wheat field of Jalil Kadar where she raised cries, hearing which Madan Lal P.W. 2 and Suresh Chand P.W. 3 came to the said field and saw appellant Munesh strangulating her with a Dupata and thereafter, running away. They chased appellant Munesh, but could not catch him. When they returned, they saw Roshni was lying in a naked condition.
The said F.I.R. was lodged by Kanchhi Lal on the information furnished by Madan Lal and Suresh Chandra.
4. The evidence of Head Moharrir Amar Singh P.W. 5 shows that on 5-3-2003, at 11.05 pm. the informant Kanchhi Lal lodged his written F.I.R. at police out post Khurja Junction, district Bulandsahar, on the basis of which a case under Section 376/511/ 302, I.P.C. was registered against the appellant. His evidence also shows that he prepared the chick F.I.R., a perusal of which shows that the distance between the place of the incident and the aforesaid police station was two kilometres.
5. The evidence of S.O. Naresh Kumar P.W. 6 shows :-- On 5-3-2002, while he was posted as In-charge of Reporting Police Out Post Khurja Junction, the F.I.R. was lodged in his presence. After collecting chick F.I.R. and other papers, he commenced the investigation. At the police station itself, he recorded the statement of the informant Kanchhi Lal. Thereafter, he left for the place of the incident i.e. Jalil Kadar's wheat field, in village Kalandargarhi. Since light was not adequate, the inquest on the corpse of deceased Roshni was performed in the morning, by S.I. Chetra Pal Singh P.W. 7. He (S.O. Naresh Kumar) prepared the photo-lash and challan-lash etc. Thereafter, the corpse of the deceased Roshni was sent for autopsy. On 6-3-2002, he recorded the statement of witnesses Madan Lal P.W. 2 and Suresh Chandra P.W. 3 and prepared the site plan (Ext. Ka 11). On 7-3-2002, he recorded the statement of witnesses of inquest. On 8-3-2002, and 9-3-2003, he tried to arrest the appellant. On 10-3-2002, he submitted a report in the Court for initiating proceedings under Section 82/83, Cr.P.C. against the appellant. On 14-3-2002, he arrested the appellant. On 17-3-2002, he submitted the charge-sheet against him.
6. Going backwards, the autopsy on the dead body of deceased Roshni was conducted on 6-3-2002, at 3.30 p.m. by Dr. Awadesh Kumar P.W. 4, who found on it the following ante-mortem injuries :--
(i) Ligature mark 20 cm x 2.5 cm all around neck, below thyroid cartilage.
(ii) Multiple linear abrasions on back of whole left leg. Size varying from 10 cm to 3 cm.
The autopsy surgeon found bleeding present in vagina; hymen lacerated; and hyoid bone fractured.
The cause of death spelt out in the postmortem report was asphyxia due to strangulation. In his deposition in the trial Court, Dr. Awadesh Kumar reiterated the said cause of death and stated that the deceased could have died at 4.30 pm. on 5-3-2003 and injury No. 1 was attributable to a Dupata being tied on her neck. He also stated therein that within 2-3 minutes of tying of Dupata, the deceased could have died and injuries suffered by her were sufficient in the ordinary course of nature to cause death.
7. The case was committed to the Court of Session in the usual manner, where the appellant was charged on counts mentioned in paragraph 1. He pleaded not guilty to the charges and claimed to be tried. His defence was of denial.
During trial, in all, the prosecution examined seven witnesses. Two of them, namely, Madan Lal and Suresh Chandra P.Ws. 2 and 3 respectively were examined as eye witnesses. The learned Judge believed their evidence and convicted and sentenced the appellant in the manner stated in paragraph 1.
Hence this appeal and reference.
8. We have heard learned counsel for the parties and perused :-- the depositions of the prosecution witnesses; the material exhibits tendered and proved by the prosecution, the statement of the appellant recorded under Section 313, Cr.P.C. and the impugned judgment and make no bones in observing that this appeal merits to be allowed and the reference made by the learned trial Judge for confirmation of the death sentence of appellant Munesh warrants to be rejected.
9. It would become manifest from the above that the conviction of the appellant is founded on the ocular account furnished by Madan Lal P.W. 2 and Suresh Chandra P.W. 3. In our judgment, their evidence does not inspire confidence.
We now purpose furnishing our reasons for reaching the said conclusion.
10. We would first like to take up the statement of Madan Lal P.W. 2.
His evidence shows :-- On 5-3-2002, at about 4.30 pm. he along with Suresh was proceeding towards village Manna and when he reached the field of Jalil Kadar, in which there was tube-well, he heard cries, hearing which, he came there and saw that Roshni was lying on the ground and appellant Munesh was tying a Dupata and strangulating her. He asked the appellant what he was doing. Thereafter, the appellant ran away. He chased the appellant, but could not apprehended him. This incident was also seen by Suresh Chandra, who had also joined in the chase of the appellant. Thereafter, he and Suresh Chandra came to the place, where Roshni was lying. He found that she was lying naked and was strangulated with a dupata and her salwar and underwear were lying nearby. He informed Roshni's father, Kanchhi Lal, about the incident.
11. We have gone through the statement of Madan Lal P.W, 2 and make no bones in observing that it does not inspire confidence. During cross-examination, when he was asked, whether he had told the Investigating Officer that he had seen Roshni lying on the ground; Munesh (appellant) strangulating her; and he reprimanding him, in terms, of what he was doing, he replied that he had, mentioned the said facts to the Investigating Officer and could give no reason why the Investigating Officer had not recorded them in his statement under Section 161, Cr, P.C. If is pertinent to mention that during cross examination S.O. Naresh Kumar P.W. 6 admitted that Madan Lal had not told the aforesaid facts to him.
During cross-examination, Madan Lal was also asked whether he had seen Munesh (appellant) lying down upon Roshni, raping her; and running away with his pant. He replied that he had told the said facts to the Investigating Officer and could give no reason why the Investigating Officer had not recorded them in his statement under Section 161, Cr. P.C. It is pertinent to mention that during cross examination, Investigating Officer admitted that Madan Lal had not mentioned to him these facts. In our view, had Madan Lal told the aforesaid facts to the Investigating Officer, he would have recorded them in his statement under Section 161, Cr. P.C.
12. In our judgment, in view of the aforesaid omissions, it would not be safe to accept Madan Lal's testimony.
13. We now take up the evidence of Suresh Chandra P.W. 3. His evidence shows:-- On 5-2-2003, at 4.30 p.m. he along with Madan Lal was going for personal work. When they reached the tube -- well of Jalil Kadar, he heard cries, ran in the direction from which they were coming; and saw that the appellant had felled down Roshni. He challenged the appellant. Thereafter, the appellant strangulated Roshni with a dupata and ran away. He and Madan Lal chased the appellant, but could not apprehend him. Thereafter, they came back and saw that Roshni was bleeding from her vagina. He, then, informed Kanchhi Lal (the father of the deceased) about the incident.
14. We have gone through the statement of Suresh Chandra and in our view, it does not inspire any confidence. During cross examination, he was asked whether he had told the Investigating Officer that when he passed near the tube -- well of Jalil Kadar, he heard cries; ran in the direction from which they were coming; saw that the appellant had felled down Roshni; challenged him; the appellant strangulated her with a dupata, and thereafter ran away. He replied in affirmative and stated that he could give no reason why the Investigating Officer had not recorded these facts in his statement under Section 161, Cr. P.C. It is pertinent to mention that the Investigating Officer, in his cross-examination, admitted that Suresh Chandra had not told the said things to him. In his cross examination, he (Suresh Chandra) stated that he told the Investigating Officer that on hearing the cries of Roshni, he saw that Munesh (appellant) had felled her down in the wheat field. However, the Investigating Officer denied that Suresh Chandra had told him the said facts.
Further in his cross-examination, Suresh Chandra stated that he had told the Investigating Officer that while he was returning, after talking about the distribution of oil with dealers, he saw the incident and could give no reason why the Investigating Officer did not mention this is his statement. In his cross-examination, the Investigating Officer admitted that Suresh Chandra had not told him this fact.
In our view had Suresh Chandra told the aforesaid facts to the Investigating Officer he would have recorded them in his statement under Section 161, Cr.P.C.
15. In our judgment, on account of the aforesaid infirmities, it would be unsafe to accept the testimony of Suresh Chandra P.W. 3.
16. We have no reservations in observing that if witnesses do not state about the core/substratum of the prosecution case in their statements under Section 161, Cr.P.C. and when during the course of their cross examination, in the trial Court, confronted with the omission, fail to give a plausible explanation for it, as is the case with Madan Lal P.W. 2 and Suresh Chandra P.W. 3, it would be extremely hazardous to accept their testimony, for there is always the lurking fear in the mind of the Court that in order to fill the lacuna in their evidence, they have made improvements. We make no bones in observing that in Criminal cases, evidence of witnesses can only be accepted, if on the core/substratum of the prosecution case their statement in the trial Court is consistent with their statement under Section 161, Cr.P.C. and where it Is not, as is the case here, the Court would have no compunction in rejecting it.
17. It is pertinent to mention that the F.I.R., wherein the appellant is nominated, was belatedly lodged by the informant Kanchhi Lal P.W-. 1 (the father of the prosecutrix Roshni) and it appears that the delay was utilised in falsely nominating the appellant. It should be borne in mind that the incident took place on 5-3-2002, at 4.30 p.m. and the F.I.R. was lodged at police outpost Khurja Junction on the said date 11.05 p.m. although, the distance between the place of the incident and the said police outpost was only two kilometres.
It is pertinent to mention that during cross-examination. It was suggested to the informant that in an election, which took place in his village, Geeta, daughter of maternal uncle of the appellant, contested against Madan Lal P.W. 2. At first, the informant admitted it but in the next breath denied it. He also denied the defence suggestion that at the instance of Madan Lal he has falsely implicated the appellant. In our judgment in view of the fact that he first admitted that Geeta contested the election against Madan Lal but in the next breath denied it, it cannot be written off that the said denial was an afterthought. Hence in our view, the possibility of the informant falsely implicating the appellant at the instance of Madan Lal cannot be excluded.
After all, there was sufficient time for the informant to make deliberations before lodging the F.I.R.
18. We make no bones in observing that even if it is accepted that Madan Lal and Suresh Chandra are independent witnesses and had no reason to falsely implicate the appellant, that ipso facto would not make their evidence credible. A witness can only pass the litmus test of credibility if his evidence is consistent, Is in consonance with probabilities and read as a whole has a ring of truth. If it fulfils these requirements it hardly matters that he is interested and has reason to falsely implicate the accused and if it does not it is immaterial that he is inpendent.
In this connection, we would like to refer to the decision of Peare v. State, 1956 All LJ 945 : (1957 Cri LJ 263), where at page 947 (of All LJ) : (at p. 264 of Cri LJ), this Court has observed thus :--
"Now, appreciation of oral evidence, depending as it does on such a variable and inconsistent factor as human nature cannot be reduced to set formulae. Each must be Judged on the totality of circumstances peculiar to it. So judged, there may be reasons inspiring confidence in witnesses despite their apparent partiality to the party producing them and hostility to the party opposite, and despite non-production of others, who may also have been present. On the other hand, there may be circumstances, compelling disbelief in a certain version though deposed to by all the available witnesses, and witnesses whom it may not be possible for the party against which they appear to stigmatise on the ground of not being independent."
19. For the aforesaid reasons, in our judgment, the prosecution has lamentably failed to prove its case against the appellant beyond all reasonable doubt.
20. In the result :--
A. Criminal Appeal No. 737 of 2003 :--
The appeal is allowed. The conviction of appellant Munesh, for the offences punishable under Sections 302, I.P.C. and 376, I.P.C. and sentence of death and imprisonment for life respectively awarded to him there under are set aside. He is acquitted for the said offences. He is in jail and shall be released forthwith unless wanted in some other case.
B. Capital Sentence Reference No. 07 of 2003 :--
The reference is rejected.