Munuwa @ Satish vs The State Of Uttar Pradesh

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS. 2224-2225 OF 2010

MUNUWA @ SATISH ETC. ...APPELLANT(S)

VERSUS

THE STATE OF UTTAR PRADESH ...RESPONDENT(S)

JUDGMENT

PAMIDIGHANTAM SRI NARASIMHA, J.

1. These appeals challenge the judgment of the High Court of

Judicature at Allahabad in Criminal Appeal Nos. 290 and 587 of

1981 dated 10.02.2010, confirming the conviction and sentence

passed by the Sessions Judge, Bareilly in S.T. No. 402 of 1979

dated 31.01.1981. By the said judgment, the Sessions Judge,

Bareilly convicted all the accused under Section 302 and Section

307, each read with Section 34 of the Indian Penal Code, 1860, and

sentenced them to life imprisonment and rigorous imprisonment Signature Not Verified Digitally signed by DEEPAK SINGH Date: 2022.08.26 19:43:55 IST Reason: for a period of four years, respectively.

Page 1 of 20

2. The Prosecution Case: The case of the prosecution is that,

on 24.08.1979, around 6:30 p.m., Shri Iqbal Bahadur Saxena,

Principal of the Chandra Shekhar Azad Inter-College, Giani, Uttar

Pradesh1, since deceased was sitting with his family physician and

private practitioner Dr. Asghar Ali2 in the verandah outside his

office, situated in the college campus. He sent his security guard

Fazal Maseeh3 to fetch an empty bottle 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, fired gunshots at the

Deceased as well as at PW-6, and fled towards the north of the

building. PW-6 went to his dispensary located nearby and sought

the help of Mahendra Kumar, a compounder at his dispensary, to

bring the Deceased who had become unconscious, to the

dispensary on a cot for administering first-aid. After that, the

Deceased was put on a bullock cart along with the cot to proceed

1 hereinafter referred to as the ‘Deceased’.

2 hereinafter referred to as ‘PW-6’.

3 hereinafter referred to as ‘PW-1’.

Page 2 of 20 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 FIR

at 8:30 p.m. for offence under Section 307 of the IPC, a translated

version of which reads as follows: -

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

4. The statement was entered into the General Diary by the Head

Constable Raghunandan Lal4, and after recording the statement,

PW-4 sent the Deceased to Visharatganj Railway Station on a

bullock cart for boarding the train to Bareilly for treatment at the

Bareilly General Hospital. Constable Sohan Lal5 is said to have

accompanied him. As per the statement of PW-8, the Deceased

4 hereinafter referred to as ‘PW-4’.

5 hereinafter referred to as ‘PW-8’.

Page 3 of 20 reached the railway station by 9:15 p.m. to board the train and

finally reached the Bareilly General Hospital by 11:00 p.m., where

Dr. J.N. Bhargava6 examined him at 11:15 p.m. On the other hand,

PW-6’s bullock cart reached the railway station around 10:00 p.m.,

by which time the train carrying the Deceased had already left.

Accordingly, PW-6 boarded the 12:00 a.m. train and reached the

hospital by 2:00 a.m. on the next date, i.e., 25.08.1979.

5. At the hospital, the statement of the Deceased was recorded

by the Tehsildar and Executive Magistrate Shri Subhash C.

Rastogi7, between 11:10 a.m. to 11:20 a.m. on 25.08.1979 after

getting a certificate of medical fitness from Dr. P.K. Bass8. In this

statement, the Deceased recounted events leading to the attack on

him, with crucial differences in motive, place of occurrence, and the

presence of other persons at such site, among others. On

27.08.1979 at 2:35 a.m. the Deceased passed away, and the post-

mortem which was conducted on the same day recorded seven

6 hereinafter referred to as ‘PW-11’.

7 hereinafter referred to as ‘PW-5’.

8 hereinafter referred to as ‘PW-9’.

Page 4 of 20 gunshot wounds, stitched wounds and abrasions, and noted that

shock and hemorrhage due to injuries were the cause of death.

6. After the investigation and the arrest of the accused, the

prosecution filed the charge-sheet against the accused, and the

Sessions Judge framed charges under Sections 302 and 307, each

read with Section 34, of the IPC. The prosecution examined 11

witnesses being PW-1 to PW-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 prosecution case 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’s first dying declaration. The

Trial Court accepted that the place of occurrence was the passage

in front of the verandah of Deceased’s office and observed that the

accused could not suggest or prove an alternative place of

occurrence of the crime. The submission concerning the lack of

motive was rejected on the basis of the FIR being treated as the first

Page 5 of 20 dying declaration, in which the Deceased stated that as he was a

witness in a case against A-2, and hence motive was adequately

proved against A-2. However, the same conclusion could not be

drawn against A-1 and A-3. The Trial Court further discarded the

contradictions that surfaced by the improvements in the

statements of eye-witnesses PW-1 and PW-6 during cross-

examination, noting that they were a result of intimidation by the

accused persons who were on bail at the time of recording of

evidence. It held that these improvements did not vitiate the story

of the prosecution. The Trial Court disbelieved the statement of the

Deceased recorded by PW-5 on 25.08.1979, also referred to as the

second dying declaration, as it was recorded more than 16 hours

after the incident, and was possibly a result of prior consultation

and deliberation. As indicated, the Trial Court finally convicted all

the accused under Sections 302 and 307, each read with Section

34 of the IPC. The accused persons were sentenced to life

imprisonment for offences under Section 302 read with Section 34

IPC, and for offences under Section 307 read with Section 34 IPC,

to rigorous imprisonment for four years.

Page 6 of 20

8. High Court: In the criminal appeals filed by the accused, the

High Court affirmed the convictions and the sentences without any

variation. It noted that the motive against A-1 and A-3 pivoted on

their association with A-2, whose motive for committing the crime

was adequately proved. On the question of contradictions in the

testimonies of the eye-witnesses PW-1 and PW-6, the High Court

noted that despite the inconsistencies, both witnesses were

consistent about specific facts, such as the number of accused

persons present at the site of the crime, firing of gunshots, and the

murder weapon. The Court concluded that the contradictions

resulted from apprehension of consequences, as the eye-witnesses

resided in the same locality as the accused. Further, the High Court

also disbelieved the statement of the Deceased recorded as the

second dying declaration, apart from noticing that the dying

declaration recorded prior in point of time must be given

preference, and its corroboration by the subsequent such

declaration is only a rule of prudence, which does not vitiate the

contents of the first dying declaration. We may note here that

during the pendency of the appeal before the High Court, A-2 had

Page 7 of 20 passed away, and accordingly the present appeals only concern the

conviction and sentences against A-1 and A-3.

9. Submissions at the bar: We heard Shri Venkita

Subramoniam T.R, AOR at length, and his submissions were later

supplemented by Shri R Basant, Sr. Advocate, assisted by Shri

Likhi Chand Bonsle and Shri Rahat Bansal, Advocates. We also

heard, Shri Sanjay Kumar Tyagi, AOR on behalf of the State of Uttar

Pradesh assisted by Shri Prabhat Kumar Rai and Shri Ajay Kumar

Pandey, Advocates.

10. At the outset, Shri Venkita Subramoniam T.R has submitted

that the FIR itself is false and fabricated and that the subsequent

events concerning the delay of the FIR in reaching the Court also

casts grave doubts about the occurrence of the incident. They

further submitted that there is doubt as to the place of occurrence,

and contradictions surface in the testimonies of the eye-witnesses

PW-1 and PW-6. He submits that the conduct of PW-1 and PW-6 is

rather suspicious and very unnatural. If these eye-witnesses are

discarded, there are no independent witnesses to support the story

of the prosecution, particularly when there are no recoveries of

Page 8 of 20 weapons in the case. On the other hand, Sh. Sanjay Kumar Tyagi,

has submitted that the findings of the Trail Court as well as the

High Court are based on credible and reliable evidence, particularly

from eye-witnesses who had no interest in securing the conviction

and arrest of the accused. He further submitted that the Trial Court

examined the entire evidence and has given good and valid reasons

for coming to its conclusions, and therefore, the High Court was

right in upholding the decision of the Trial Court.

11. Analysis: Having heard the arguments, we notice some

glaring inconsistencies in the evidence put forth by the prosecution.

We will take note of some such crucial lapses.

12. At the outset, we are not impressed by the submission of Shri

Venkita Subramoniam T.R that the FIR was signed by the Deceased

vertically, in different ink in the FIR, while the contents of the FIR

itself were written horizontally, thereby giving an impression that

FIR was written after the signature which was obtained at a 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 and handed it over to the police, as stated in the

Page 9 of 20 cross-examination of PW-1, or it was orally dictated by the

Deceased and scribed by PW-4, as stated by PW-6 in his chief-

examination. The other connected fact casting doubt on the way

FIR was registered, is the delay caused in its receipt in the Court.

An endorsement contained in the original FIR states that it reached

the concerned Court on 27.08.1979, i.e., three days after the date

of the registration of the FIR. This endorsement is evident from the

original FIR document and reads “Sambandith Nyayalay Beja.”

13. Re: ocular witnesses: There are doubts about the conduct

and testimony of the eye-witnesses. The first such contradiction in

the testimony of PW-1 fundamentally challenges the premise that

PW-1 was an eye-witness. In his testimony, PW-1 initially denied

being a witness to the actual commission of the crime, stating that:

“The shot was fired, when I had gone inside. When I brought an empty bottle, I saw accused Vimal Kumar, Munua and Gullu fleeing. These persons were fleeing southwards. When I saw accused persons fleeing, I had reached in verandah of the office.”

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

“It is not so that as soon as I reached near stairs of the verandah carrying an empty bottle, the

Page 10 of 20 accused persons fired shots. And after firing shots in my presence, the accused persons fled northwards”

15. The aforementioned contradictions in the evidence of PW-1

and significant improvements in the testimony, cast doubts about

his presence at the alleged place of occurrence of the crime. At least

one thing is clear, he has not witnessed the accused firing at the

Deceased.

16. The other concern relates to his presence at the police station.

PW-1 deposed that his thumb impression was taken on the FIR.

However, there is no such thumb impression at all on the

document. In addressing this contradiction, the Trial Court

concluded that,

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

17. Another observation made on perusal of the evidence is that

PW-1 stated that he reached the Aliganj police station on foot,

remained there for about 25-30 minutes, and after that returned to

the village Giani by 8-9 p.m. This statement is curious, as the FIR

Page 11 of 20 itself was registered at 8:30 p.m. It is surprising then that PW-1,

who walked the distance of 3 km to the police station, reached there

well in time and observed the Deceased write the FIR, allegedly

signed it himself, had his statement recorded by the S.I., and after

that, concluded the return journey as well, all by 8-9 p.m. It is also

curious that he did not accompany the Deceased to the railway

station and eventually the hospital when he was in a critical

condition, given that he resided with the Deceased within the

campus and had been working there for 10-12 years.

18. Cumulatively, the abovementioned contradictions give rise to

suspicions about the eye-witness testimony of PW-1. Whether he

was present at the place of occurrence or accompanied the

Deceased to the police station at all, are in doubt as his statements

relating to the circumstances surrounding the place of occurrence

and the recording of the FIR have been found to be untrue, and his

conduct unnatural.

19. In similar vein, we notice unnatural conduct on part of the

eye-witness PW-6. PW-11 who examined PW-6 at the General

Hospital Bareilly, stated that the injuries on PW-6 were simple in

Page 12 of 20 nature. Despite this, immediately after the incident, PW-6, a doctor

who admittedly maintained close relations with the Deceased,

instead of being with the Deceased, went to his own house and

rested. Later, he accompanied the Deceased to the police station to

report the crime instead of escorting the Deceased to a hospital to

administer proper treatment, even when it has been admitted that

the Deceased was in a very serious condition, having suffered seven

gunshot injuries and oozing blood.

20. Re: place of occurrence: There is a great amount of

uncertainty 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 in the passage in front of the verandah where the Deceased

and PW-6 were sitting in two chairs facing each other. It is at this

place that the accused are alleged to have fired at the Deceased

causing as many as seven gunshot injuries on his body. Inspector

Chob Singh (PW-7) who was cross-examined about the place of

occurrence has stated that he has not found blood spots on the

chair or the floor around the chair. This contrasts with the

testimony of PW-1, who, in his cross-examination, stated that when

Page 13 of 20 the Deceased was lying on the bullock cart in a cot, blood was

oozing out from him, which is relatable to the injuries sustained at

the place of occurrence.

21. It is unnatural that not even single drop of blood could be

traced or recovered from the chair or the floor where the Deceased

and PW-6 were sitting, casting a serious doubt about the veracity

of the prosecution’s story regarding the place of the incident. It is

common knowledge that a place where a severe bodily injury

occurs, it naturally leaves a trail of the incident9. It is also common

for the prosecution to collect proof of blood-stained earth, clothes,

or other materials, from where the incident would have occurred.

22. On this aspect there is only a tangential observation in

evidence of PW-6, who stated that the Deceased’s “injured body part

9 In Meghraj Singh v. State of U.P. [(1994) 5 SCC 188], this Court held, “13. ...The absence of any blood in the field of Kirpal Singh as also the absence of blood trail from the field of Kirpal Singh to the place where the dead body was found, as admitted by PW 8, also suggests that the occurrence did not take place in the manner suggested by the prosecution and that the genesis of the fight has been suppressed from the court...”. A similar view was taken in the case of Ram Sewak and Ors. v. State of M.P. [(2004) 11 SCC 259], wherein it was held, “14...We also notice that there is considerable doubt in regard to the place of incident also. From the medical evidence we notice that the deceased suffered 3 major incised wounds leading to the severance of the blood vessels and amputation of his hand near the wrist and the body in question was lying at the spot till the police came which was nearly 4 to 5 hours later but still the investigating agency was unable to find any blood on the spot. Of course, the prosecution has given an explanation that after the incident in question it had rained but even then it is difficult to believe that even traces of blood could not have been found on the soil in spite of the rain. The absence of any such material also supports the prosecution case that the incident in question might not have happened at the place of incident...” (emphasis supplied)

Page 14 of 20 had been wrapped with tehmand”. This statement fails to explain

the lack of any blood stains at the crime scene. This does not

explain why the said cloth, tehmand, was not produced by the

prosecution. Accordingly, we find that the prosecution’s failure to

explain recovery of blood on the chair or the place where the

Deceased was sitting when he was fired at seven times is fatal. The

non-production of blood-stained clothes is equally fatal.

23. Re: lack of material recoveries: In the present case, the

accused are alleged to have attacked the Deceased with the aid of

firearms, and the Deceased is supposed to have seven gunshot

wounds, yet the prosecution has failed to make material recoveries

from the place of the occurrence of the crime. The prosecution has

neither produced the empty cartridges from the scene of the crime,

nor the pellets from the Deceased's body. The prosecution has not

been able to recover any weapons alleged to have been used in the

incident. Further, it was incumbent upon the prosecution to

examine the ballistic experts to prove whether the gunshots came

from one or different guns. The prosecution however, failed to

examine ballistic experts or even produce the empty cartridges.

Page 15 of 20 Perhaps it is in the circumstance of lack of any recovery of empty

cartridges that the prosecution found it convenient not to examine

a ballistic expert. Lack of such material recoveries compounds

doubts about 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

declarations of the Deceased, as to the motive of the crime, the

place of the incident, and the presence of other persons at such

place. The first dying declaration, the FIR, was recorded by the

Deceased at the police station on 24.08.1979. It states that at 6:30

p.m., the three accused came and fired at him and PW-6 with a

pistol because he was a witness in a case against A-2. The second

dying declaration, recorded by PW-5 after medical certification from

PW-9 on 25.08.1979, states that the incident took place in front of

the gate of his quarters, in front of which, A-3’s flour mill is located.

The three accused came from the flour mill, and A-1 and A-2 fired

a shot with a revolver while A-3 held him fastened. It also states

that, at the relevant time and place, his peon Sakhar Ali Beg and

Page 16 of 20 5-6 other persons were also present. Notably, he stated that he had

rusticated A-2 from college after he failed in the 11th standard, and

this motivated the crime.

25. The Trial Court rejected the statement made on 27.08.1979

as a dying declaration, noting that:

“The new facts introduced by Iqbal Bahadur Saxena create a suspicion that this dying declaration was a result of consultation and as such I do not consider it safe to place reliance 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 dying declarations, the court may accept the one which

is recorded prior in point of time, and the corroboration of the first

dying declaration by the later declaration is only a rule of prudence.

27. In our opinion, the second dying declaration comprising far

too many additions and improvements, was correctly rejected by

the Trial and the High Court. The first declaration was recorded in

the police station, right before the Deceased left for the hospital in

a critical condition, without any certification of whether the

Deceased was medically fit to make a dying declaration. In fact, this

Page 17 of 20 is corroborated by the testimony of PW-8 who stated that the

Deceased was in a semi-conscious condition on his way to the

hospital. Further, PW-11 who examined the Deceased also stated

that his condition was serious. The dubitable circumstances in

which the FIR was recorded, sought to be treated as the first dying

declaration, have already been considered by us in the initial part

of our analysis. For all these reasons, we are of the opinion that it

is not safe to consider the FIR as a dying declaration as well.

28. In Mehiboobsab Abbasabi Nadaf v. State of Karnataka10, this

Court had similarly refrained from accepting any of the multiple

dying declarations in light of their manifest inconsistencies:

“7. Conviction can indisputably be based on a dying declaration. But, before it can be acted upon, the same must be held to have been rendered voluntarily and truthfully. Consistency in the dying declaration is the relevant factor for placing full reliance thereupon. In this case, the deceased herself had taken contradictory and inconsistent stand in different dying declarations. They, therefore, should not be accepted on their face value. Caution, in this behalf, is required to be applied.”

10 (2007) 13 SCC 112.

Page 18 of 20 29. Conclusions: Having considered the matter in detail, and

having noted that the prosecution failed to recover blood-stained

materials from the place of occurrence, empty cartridges, pellets,

or any other weapon used for commission of the crime, coupled

with the contradictions and unnatural conduct of the eye witnesses

PW-1 and PW-6, and the inconsistencies in the two dying

declarations, we believe that the prosecution has not proved the

case beyond a reasonable doubt, and the accused are entitled to be

given the benefit of doubt.

30. Accordingly, in the event of failure of the prosecution to prove

the case against the accused beyond the reasonable doubt, the

accused will be entitled to be acquitted from all the charges. In the

result, we pass the following order: -

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

ii. The judgment passed by the High Court of judicature at

Allahabad in Criminal Appeal Nos. 290 and 587 of 1981

dated 10.02.2010 and the judgment of the Sessions

Judge, Bareilly in Sessions Trial No. 420 of 1979 dated

31.01.1981 are quashed and set aside.

Page 19 of 20 iii. The appellants are acquitted of all the charges, and their

bail bonds stand discharged. Pending interlocutory

applications, if any, stand disposed of in terms of the

above.

……………………………….J. [B.R. GAVAI]

……………………………….J. [PAMIDIGHANTAM SRI NARASIMHA]

NEW DELHI;

AUGUST 26, 2022

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