Holding

The conviction under Sections 148 and 149 IPC is improper; the accused are liable for murder under Section 302 with common intention under Section 34 IPC, and the life sentence is upheld.

Summary

Five persons, including Jagdish Narain and his two sons, were tried for rioting and the murder of Jitendra Nath after allegedly ambushing him and firing shots. The trial court acquitted them, citing contradictions between eye‑witness statements and their earlier statements under Section 161 CrPC and alleging a faulty investigation because the site plan did not show the point of fire. The High Court reversed the acquittal, convicting the remaining two accused under Sections 148 and 302 read with 149 IPC. On appeal, the Supreme Court held that the eye‑witness testimony was reliable, the omission in the site plan did not invalidate the evidence, and that conviction under Sections 148 and 149 was inappropriate. The Court altered the conviction to murder under Section 302 with common intention under Section 34 IPC, upheld the life sentence, and dismissed the appeal.

Issues considered

The credibility of eye‑witness statements despite alleged contradictions with statements recorded under Section 161 CrPC.
Whether the failure to mark the point of fire in the investigating officer's site plan renders the investigation faulty and affects admissibility of evidence.
The admissibility of information derived from witnesses in a site plan prepared by the investigating officer under Section 162 CrPC.
The appropriateness of convicting the accused under Sections 148 and 149 IPC versus conviction under Section 302 with common intention under Section 34 IPC.

Legislation cited

Code of Criminal Procedure, 1973s. 157, s. 161, s. 162, s. 379
Indian Evidence Act, 1872s. 60
Indian Penal Code, 1860s. 148, s. 149, s. 302, s. 34

Subjects

murdercommon intentionSection 34 IPCsite planevidence admissibilitySection 162 CrPCcontradictory statementsconviction under Section 148life imprisonment

Judgment

A JAGDJSH NARAIN AND ANR.
v.
STATE OF U.P.
. '

MARCH 12, 1996

B [DR. A.S. ANAND AND M.K. MUKHERJEE, JJ.]

Indian Penal Code, 1860:

Ss. 148, 302/34, 3021149-Five persons accused of murdel'-Acquittal
by trial court-Appeal-Two accused died pending appeaHiigh Court ac-
c;
quitting one of the accused and convicting remaining two under ss.148 and
302/149-Held, High Court not right in recording conviction under ss.148 and
302/149-Conviction u/s. 148 set aside-Conviction u/s.3021149 altered to one
under s. 302/34.

D Code of Criminal Procedure, 1973 :

Ss. 157, 161, 162, 379--0ffence of murdel'-Site plan prepared by .J,
Investigating Officer-Place from where shots fired not shown in site ~-

plan-Held, investigation cannot be faulted on this ground, because investigat-
ing officer was not a wimess to incide/lf and had he shown the place after
E ascertaining from witnesses, it would have been hit by s.162.

Evidence Act, 1872 :

S.60-Site plan prepared by bivestigating Office,._collfents of-Eviden-
tiary value-Explainted. t
F
Appellant No. 1, alongwith his two sons and two friends, one or them "'
being appellant No. 2, was tried for rioting and murder or his step brother,
the father of PW. 1. The prosecution case was that on the date of incident
while PW. 1, his father and a servant (PW. 2) were carrying sugarcane in
a bullock cart, on their way to the mill, the five accused armed with deadly
G weapons including guns waylaid them. Appellant No. 1 fired a shot at the
father of PW. 1 who was following the cart on foot and was also carrying ,...,
a gun. The victim fell down and on the exhortation of the two sons of
appellant No.1, appellant No. 2 fired a short hitting the victim. Thereafter
the miscreants Red away along with the gum of the deceased. PW. 1 lodged
H the F.I.R. whereupon a case was registered and PW. 6 commenced the
250
JAG DISH NARAIN v. STATE 251

investigation, which culminated in the trial of the five accused. A
fhe trial court acquitted the accused holding inter alia that there
were contradictions in the evidence of the eye witnesses and their state-
ments recorded under s.161 Cr.P.C. and that the investigation was faulty
since the investigating officer did not show in the site plan the place from
where the shots were fired. The State filed an appeal before the High Court. B
Meanwhile two of the accused died. The High Court acquitted one of the
remaining accused but reversed the acquittal of the appellants and con-
., victed and sentenced them under ss.148 and 302 read with 149 CPC.
~
Aggrieved, the appellants filed the appeal.
c
Dismissing the appeal, this Court

HELD : 1. The High Court was right in holding that the prosecution
succeeded in proving that owing to the two shots fired by the appellants,
the victim met with his death; and that the lacuna as pointed out by the D
trial Court could not have in any way impaired the evidence of' the eye
witnesses nor could have it affected the prosecution case. The contradic-
tions which prusuaded the trial Court to disbelieve the eye witnesses
related to their omissions to make certain statements before the Investigat-
ing Officer, which they made before the Court. The omissions were so
minor and insignificant that they did not amount to contrdictions at all. E
[258·C; 257-G; 254-G-H; 255-A)
2.1. Both P.Ws. 1 and 2 were the most probable witnesses, as they
,. " detailed searching cross-examination nothing could be elicited by the
were accompanying: the deceased at the material time and inspite of a

defence to discredit or contradict them. [258-B] F
2.2. Besides, the F.I.R. that PW. 1 promptly lodged within half an hour
of the incident, fully corroborates PW. 1. The evidence of the doctor who
held autopsy and found two gunshot wounds on the person of the deceased
also corroborates the evidence of the above two eye witnesses. (258-C]
G
3.1. The Investigating Officer was not present at the scene when the
incident took place; and in the site plan had he even shown the place from
which the shorts were allegedly fired after ascertaining the same from the
eye witnesses, it could not have been admitted in evidence being hit by
Section 162 Cr.P.C. [255-H; 256-C) H
252 SUPREME COURT REPORTS [1996] 3 S.C.R.

A 3.2. However, if in a given case the site plan is prepared by a
draftsman - and not by the Investigating Officer - entries therein regarding
the place from where shots were fired or other. details derived from other
witnesses would be admissible as corroborative evidence. [257-8-C]

Tori Singh v. State of U.P., AIR (1962) SC 399, relied on.
B
4. The High Court, having acquitted one of the accused was not
legally justified in convicting the appellants under Section 148 and 302/149
IPC as it was the positive case of the prosecution that only the five
arraigned were the miscreants. Since the manner in which the inci<lent
C took place clearly indicates that the appellants shared the common inten-
tion of committing the murder, they are liable for conviction for the
murder with the aid of Section 34 IPC. Their conviction is altered to one
under s.302/34 IPC, but the sentence of imprisonment for life is main-
tained. [258-D-F]

D CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
489 of 1995.

From the Judgment and Order dated 16.12.94 of the Allahabad High ._
""
Court in A. No. 2573 of 1980.

E K. Janjani for the Appellants.

Anis Ahmed Khan and A.S. Pundir for the Respondents.

The Judgment of the Court was delivered by
r
F M.K. MUKHERJEE, J. Jagdish Narain, the appellant No. 1, .,
alongwilh his two sons Avdhesh and Avinash and two friends Rameshwar
Dayal, the appellant No. 2, and Surya Prakash was tried by the Additional
Sessions Judge, Pilibhit, for rioting and murder of his step brother Jitendra
Nath. The trial ended in an acquittal; and agrieved thereby the State
preferred an appeal. During the pendency of the appeal Avdesh and Surya
G Prakash died and consequently their appeal abated. As regards others, the
High Court affirmed the acquittal of Avinash but reversed that of the two .k .,,
appellants (the respondents therein) and convicted and sentenced them
under Sections 148 and 302, read with Section 149 l.P.C. The above order
of conviction and sentence is under challenge in this appeal preferred
H under Section 379 Cr.P.C.
JAG DISH NARAIN v. STATE [M.KMUKHERJEE, J.] 253

Shorn of details the prosecution case is that on February 11, 1977 the A
decea;ed, his son Achal Kumar (P.W. 1) and his servant Devi Ram (P.W.
2) were carrying sugarcane in a bullock-cart from their village Mar to a
mill in Bilsanda for getting the same weighed. While P.Ws. 1 and 2 were
in the bullock cart with the latter driving it, the deceased was following the
cart on foot. At or about 2 P.M. when the cart had, after crossing a culvert B
situated on the kachha road, reached near the field of one Ram Autar, the
five accused persons came out from behind a heap of straws armed with
deadly including guns. Then the appellant No. 1 fired a shot at Jitendra
Nath felling him down. The gun which the deceased was carrying also fell
down. On the exhortation of Avinash and Avdesh, the appellant No. 2 also
fired a short hitting Jitendra Nath. Thereafter the miscreants fled away C
alongwith the gun of the deceased.

Achal Kumar (P.W. 1) then rushed to Bilsanda Police Station, which
was at a distance of one mile, and lodged an information about the
incident. On that information a case was registered against the accused
persons and Inspector D.R. Thapalyal (P.W. 6) took up investigation. He D
went to the scene of occurrence accompanied by other police personnel
and after holding inquest upon the dead body sent it for post-mortem
examination. He prepared a site plan and seized some blood stained earth,
two pellets and one pair of shoes from the site. On completion of inves-
tigation he submitted chargesheet against the accused persons and in due E
course the case was committed to the Court of Session.

The accused persons pleaded not guilty to the charges levelled
against them and their defence was that they had been falsely implicated.

• To sustain the charges levelled against the accused persons the F
prosecution relied upon the ocular accounts of Achal Kumar (P.W. 1) and
Devi Ram (P.W. 2), who were allegedly in the cart, and Daya Ram (P.W.
3) who claimed that he was passing along the road at the material time.
Besides, the prosecution examined the doctor, who held post-mortem
examination upon the deceased, the Investigating Officer and some other G
formal witnesses. The reasons which weighed with the trial Court to
'"..,. disbelieve the evidence of the eye-witnesses and, for that matter the
prosecution case, are as under :

(i) The testimonies of the eye witnesses stood contradicted by their
earlier statements recorded under Section 161 Cr.P.C.; H
254 SUPREME COURT REPORTS [1996] 3 S.C.R.

A (ii) Though, according to the eye witnesses, the deceased was attack-
ed while going along the sait (road) his dead body was found in the field
(of Ram Au tar) and no explanation was offered by the prosecution to , "
reconcile the anomaly;

(iii) Even though the investigating Officer admitted that he knew
B from the very beginning about the importance of the place from where the
shots were fired he did not indicate that place in the site plan he prepared
and such failure made the investigation faulty and suspicious;

(iv) No attempt was made by the Investigating Officer to ascertain
p
c to whom the pair of shoes found near the dead body belonged; and

(v) A number of documents were filed on behalf of the accused
persons to show that the deceased had enmity with other persons also and,
therefore, it could not be said that they were the only persons who were
likely to commit the murder of .Titendra Nath, more so when he was armed
D with a gun.

In reversing the order of acquittal and passing the impugned order ~

the High Court first reappraised the evidence in the light of the above ...
findings and demonstrated that each of them was perverse. It then con-
sidered the evidence of the three eye witnesses to ascertain whether it
E could be safely relied upon to base a conviction. On such consideration the
High Court found that PWs. 1 and 2 were the most probable and natural
witnesses and that their evidence was creditworthy. The High Court,
however, left the evidence of PW. 3 out of consideration as, according to

F
it, he was not an independent witness. The High Court further found that
the evidence of PW. 1 stood fully corroborated by the FIR which was
lodged within half an hour of the incident and that the evidence of both
.•
P.Ws. 1 and 2 stood corroborated by the medical evidence.

This being a statutory appeal we have, for ourselves, carefully
porused the evidence adduced by the prosecution (no evidence was led by
G the defence) particularly that of PW. 1 and 2 keeping in view the judg-
ments of the learned Courts below; and we are constrained to say that none
of the grounds canvassed by the trial court to acquit the appellants can be
sustained. The contradictions which persuaded the trial Court to disbelieve
.. -
the eye witnesses related to their omissions to make certain statements
H before the Investigating Officer, which they made before the Court. On
JAGDISH NARAIN v. STATE [M.K.MUKHERJEE, J.] 255

perusal thereof we find that the omissions were so minor and insignificant A
that they did not amount to contradictions at all. To eschew prolixity of
this judgment we, however, refrain from detailing them except referring to
one, to illustrate the entirely wrong approach of the trial Court in this
regard. PW. 2 testified that while driving the cart he was sitting ·on the
bundles of the sugarcane but in his statement recorded under Section 161 B
Cr.P.C. he did not state that he was so seated. Indeed, it is only for this
minor omission that the trial Court found the evidence of PW. 2 wholly
unreliable.

As regards the comment of the trial Court that the prosecution made
"'"' no attempt to dispel the anomaly about the place where the deceased was
attacked and his dead body was found, we are in complete agreement with
c
the observations of the High Court that the above comment was the
outcome of non consideration of the evidence. PW. 1 testified that while
the cart was proceeding on the kacha road and it had reached the place
where the road turned towards the east, his father moved on to the
pagdandi, (hilly circuitours track) which passes through the field of Ram D
Autar. According to the evidence of P.W. 6, which remained uncon-
J
..., lrovcrted, the dead body of Jitendra was found lying near the pagdandi and
he held inquest there. The evidence of the prosecution witnesses thus
clearly proves that Jitendra Nath met with his death at the place where his
dead body was lying. The finding of the trial Court in this regard must E
therefore be said to be perverse.

In responding to the next criticism of the trial Court regarding the
failure of the investigating Officer to indicate in the site plan prepared by
him the spot wherefrom the shots were allegedly fired by the appellants
' • and its resultant effect upon the investigation itself, the High Court ob-
F
served that such failure did not detract from the truthfulness of the eye
witnesses and only amounted to an on1ission on the part of the investigation
Officer. In our opinion neither the criticism of the trial Court nor the
reason ascribed by the High Court in its rebuttal can be legally sustained.
While preparing a site plan an Investigating Police Officer can certainly G
record what he sees and observes, for that will be direct and substantive
\. .,._ evidence being based on his personal knowledge; but as, he was not
obviously present when the incident took place, he has to derive knowledge
as to when, where and how it happened from persons who had seen the
incident. When a witness testifies about what he heard from somebody else H
256 SUPREME COURT REPORTS [1996] 3 S.C.R.

A it is ordinarily not admissible in evidence being hearsay, but if the person
for whom he heard is examined to give direct evidence within the meaning
of Section 60 of the Evidence Act, the farmer's evidence would be admis-
sible to corroborate the latter in accordance with Section 157 Cr.P.C.
However such a statement made to a Police Officer, when he is investigat-
B ing into an offence in accordance with Chapter XII of the Code or Criminal
Procedure cannot be used to even corroborate the maker thereof in view
of the embargo in Section 162(1) Cr.P.C. appearing in that chapter and
can be used only to contradict him (the maker) in accordance with the
proviso thereof, except in those cases where sub-section (2) of the section
C applies. That necessarily means that if in the site plan PW. 6 had even
shown the place from which the shots were allegedly fired after ascertain-
ing the same from the eye witneses it could not have been admitted in
evidence being hit by Section 162 Cr.P.C. The law on this subject has been
succinctly laid down by a three Judge Bench this Court in Tori Singh v.
State of U.P., AIR (1962) SC 399. In that case it was contended on behalf
D of the appellant therein that if one looked at the sketch map, on which the
place where the deceased was said to have been hit was marked, and
compared it with the statements of the prosecution witnesses and the
medical evidence, it would be extremely improbable for the injury which
was received by the deceased to have been caused on that part of the body
E where it had been actually caused if the deceased was at the place marked
on the map. In repelling the above contention this Court observed, inter
alia, :

·· ......... the mark on the sketch map was put by the Sub-inspector
who was obviously not an eye-witness to the incident. He could
F
only have put it there after taking the statements of the eye •
witnesses. The marking of the spot on the sketch map is really
bringing on record the conclusion of the Sub-inspector on the basis
of the statements made by the witnesses to him. This in our opinion
would not be admissible in view of the provisions of S.162 of the
G Code of Criminal Procedure, for it is in effect nothing more than
the statement of the Sub-Inspector that the eye witnesses told him
that the deceased was at such and such place at the time when he
was hit. The sketch map would be admissible so far as it indicates
all that the Sub-Inspector saw himself at the spot; but any mark put
H on the sketch-map based 011 the stateme11ts made by the willlesses
JAG DISH NARAIN v. STATE [M.K.MUKHERJEE, J.] '257

to the Sub-Inspector would be inadmissible in view of the clear A
provisions of S.162 of the Code of Criminal Procedure as it will be
no more than a statement made to the police during investigation."

(emphasis supplied)

While on this point, it will be pertinent to mention that if in a given B
case the site plan is prepared by a draftsman - and not by the lnvestigaing
Officer - entries therein regarding the place from where shots were fired
or other details derived from other witnesses would be admi.,sible as
;;;;,, corroborative evidence as has been observed by this Court in Toii Singh's
case (supra) in the following passage : C

"This Court had occasion to consider the admissibility of a plan
drawn to scale by a draftsman in which after ascertaining from the
witnesse.' where exactly the assailants and the victims stood at the
time of the commission of offence, the draftsman put down the
places in the map, in Santa Singh v. State of Punjab, AIR (1956) D
SC 526. It was held that such a plan drawn to scale was admissible
if the witnesses c01roborated the statements of the draftman that they
showed him the places and would not be hit by S.162 of the Code
of Criminal Procedure."
E
(emphasis supplied)

The trial Court ought not to have also made much out of the failure
on the part of the Investigating Officer to find out to whom the pair of
f shoes found near the dead body belonged for the prosecution rested its
• case upon eye-witnesses and not circumstantial evidence. If the prosecution F
intended to prove the accusation levelled against the appellants by cir-
cumstantial evidence, then proof of the circumstance that the shoes
belonged to one of them would certainly have been incriminating but when
the prosecution rested its case upon the evidence of the eye witnesses that
question was of no such moment. In any event, the lacunae as pointed out G
by the tiral Court could not have in any way impaired the evidence of the
'-' • eye witnesses nor affected the prosecution case, as rightly observed by the
High Court.

The last reason given by the trial Court to disbelieve the prosecution
case in the context of the fact that the deceased had enmity with others i_, H
258 SUPREME COURT REPORTS (1996] 3 S.C.R.

A absurd for such a plea would have been available to anyone who might have
been arraigned for the murder. The High Court, was therefore fully jus-
tified in observing that the deceased might have enmity with others but the " •
question as to who had committed the murder was to be answered by the
Court on the basis of the evidence adduced.

B Coming now to the evidence on record, we find that both PWs 1 and
2 were the most probable witnesses, as they were accompanying the
deceased at the material time and that inspite of a detailed searching
cross-examination nothing could be el;cited by the defence to discredit or
contradict them. Besides, we find the FIR that PW. 1 promptly lodged
C within half an hour of the incident, fully corroborates PW. 1. The evidence
of the doctor (PW. 4), who held autopsy and found two gunshot wounds
on the person of the deceased also corroborates the evidence of the above
two eye witnesses. We are, therefore, inagreement with the High Court that
the prosecution succeeded in proving that owing to the two shots fired by
the appellants Jitendra Nath met with his death. The High Court, however,
D was not legally justified in convicting the appellants under Sections 148 and
149/302 IPC for consequent upon the order of acquittal recorded by it in
.(
favour of Avdhesh, Section 148 and 149 IPC could not have any manner
of application - it being the positive case of the prosecution that only the
five arraigned were the miscreants. Since, however, the manner in which
E the incident took place clearly incidates that the appellants shared the
common intention of committing the murder of Jitendra Nath they are
liable for conviction for the murder with the aid of Section 34 IPC.

On the conclusions as above we set aside the conviction and sentence
of the appellants under Section 148 IPC; and alter their conviction under
F Section 302/149 to 302/34 !PC but maintain the sentence of imprisonment
for life imposed for the former. With the above modifications the appeal
•
is dismissed.

R.P. Appeal dismissed.