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CASE NO.: Appeal (crl.)  570 of 1996

PETITIONER: STATE OF MADHYA PRADESH                          

RESPONDENT: KRIPARAM                                                         

DATE OF JUDGMENT: 25/09/2003

BENCH: N.SANTOSH HEGDE &  B. P. SINGH.

JUDGMENT: J U D G M E N T

SANTOSH HEGDE, J.                                  State of  Madhya Pradesh has preferred this appeal against  a judgment of the High Court of Madhya Pradesh at Jabalpur Bench.                 While granting leave to this appeal, this court by its order  dated 22nd April, 1996 confined the same only as against the first  respondent.                 The prosecution case from which this appeal arises is as  follows: The  respondent in this appeal and two others were  chargesheeted by the Maharajpur police for an offence punishable  under Section 302 read with Section 34 I.P.C. for having committing  the murder  of Bati in the intervening night between 10 and 11 of April,  1985, while the said Bati was sleeping in his thrashing yard along with   his brother Suraj  Prakash (PW-1)  and   his uncle Nand  Ram (PW-3).   Prosecution   alleged   that  at  that  time   the  three   accused  persons  :2: attacked the deceased with deadly weapons like axe, farsa etc. and the  deceased  died instantaneously.   It is stated that PWs. 1 and 3, being  afraid of the assailants, did not move away from the place where they  hid themselves and later in the morning at about 8 O’clock they  informed the other relatives including Nathu Ram (PW-4), father of the  deceased  and the information as to the crime was lodged at  Maharajpur police station at  about  8.15 A.M. and the police station  was about 3 k.ms. away from the place of incident.  During the course  of investigation, the prosecution alleges that they recovered  blood  stained clothes worn by A-1 as also a blood stained axe which was used  in attacking the deceased.         The trial court, accepting the prosecution case convicted the  three accused persons for offences punishable under Section 302 IPC  read with Section 34 IPC.  The trial court imposed the  sentence of  imprisonment for life on the said accused.         It was against the said judgment of the Sessions judge  Chhatarpur,    the    accused   filed  an  appeal  to   the  High   Court of                                   

:3: Madhya Pradesh at Jabalpur  in Crl. A. No. 60 of 1996.  The High  Court on re-appreciation of the evidence by the impugned judgment  came to the conclusion that the prosecution has failed to establish a  case against the accused hence acquitted  the accused.         As stated above it is against the said judgment of  acquittal the  State has preferred this Appeal and this Court at the time of granting  leave has confined the leave to appeal as against the first respondent  only  who was  the first accused in the Trial Court.  Shri R.P. Gupta,  learned Senior  Counsel  appearing for the State contended that the   Trial Court has meticulously considered  the evidence on record and

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accepted the eye witneeses’ version of PW-1 and PW-3 and has further  relied upon the recoveries made at the instance of first accused.  He  also submitted that little contradictions and embellishments even if  present  in the evidence of these witnesses  have been dealt with by the  Trial court which came to the conclusion that these contradictions  would not in any manner make the prosecution case unbelievable,  hence it based a conviction on the said evidence led by the prosecution.   He  submitted  in  such cases the High Court should not sit as a court of                                   :4: appeal and interfere with  the judgment and finding  of the trial court  by re-appreciation of the evidence and substituting its own subjective  satisfaction.  It was the contention of the said learned counsel that the  presence of PWs.1 and 3  at the place of incident was natural and  they  did not have any  grievance or motive to implicate the accused falsely.                 Shri S.K. Dhingra, learned counsel appearing for the  respondent countered the said argument and submitted that the finding  of the trial court is on wrong appreciation of evidence and evidence of  PWs.1 & 2 are so artificial and so full  of contradictions that no  reasonable person would place any reliance on such evidence to base a  conviction.         Having heard the arguments of the learned counsel  and perused  the record, we notice that  the  prosecution relies on evidence of  PWs.  1&3 as eye witnesses and also on the recoveries allegedly made at the  instance of the first accused/respondent herein. Since the judgment of  the High Court is a reversing judgment we thought it proper to  scrutinise the evidence  led by the prosecution very carefully  and in  that process  we notice that there is sufficient force in the contention of  the defence that the presence of  PWs. 1&3 at the time of incident was  :5: doubtful and the incident in question which led to the death of the  deceased could not have been noticed by said witnesses.  This is for the  following reasons;         The  original case of the eye witnesses was that they were all  sleeping  together when the attack in question took place  and the  intention of the attackers was clear from what was stated  during the  attack  which was to kill all.  Thereafter during the course of evidence  these witnesses conveniently changed the said part of their evidence by  stating that PWs. 1&3 slept on the roof of the pump house while the  deceased  slept on a cot under a tree.  The reason for this change, as  observed by the High Court, is obvious because if they were sleeping  together and the intention of the accused as proclaimed was to kill all  these three then there would have been no occasions for these  witnesses  to escape the attack.  Therefore, obviously they had  to find an  explanation and for this purpose they made the later statement that the  deceased and the two eye witnesses were sleeping separately.  Apart  from  this,  these  witnesses  have  stated that immediately on seeing the  

:6: attack on the deceased they ran away and hid themselves until next day  morning being afraid of the assailants.  But then there is so much  contradiction in regard to the direction and the place the witnesses ran  away that it creates a suspicion as to their presence.   PW1 says that he  ran in the direction of river while PW2 says he ran in the direction of  the hill which according to the defence are in  opposite directions.  This  apart, assuming  they did hid themselves , there is absolutely no  explanation why these witnesses  till  about 8 O’ clock in the morning   did not try to seek any help from sources available to them.  It has   come in evidence that near about thrashing yard of PW-4 where the  incident took place, there were other thrashing yards where people  were sleeping, therefore, they could have easily sought help from them  which was not done.  Then again we notice that  the incident  in  question has taken place in the month of April, and being summer  month, we can take judicial notice of the fact which has been done by

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the courts below that the sun rise would have been around 6 O’ clock in  the  morning.  If that be so we find no explanation whatosever why  these witnesses did not go to their house or contact anybody upto 8 O’  clock  in  the  morning  to  inform  them  of  the  incident  in  question.   :7: This act of PWs. 1&3 in informing the relatives and the villagers of the  attack only at 8 O’clock in the morning was obviously to explain  the  delay in filing the FIR, which was lodged in the police stated which was  about 3 K.ms.  away from the place of incident only at 8.15 O’clock in  the morning.  Here again in regard to the lodging the complaint there is  direct contradiction in evidence of PWs 1 & 3.  While one of the  witnesses states they went straight from the place of incident to the  police station, the other states they went to the village first to inform  the relatives and then went to the police station.  If the evidence of   these eye witnesses were otherwise believable for good reasons some of  the contradictions referred to hereinabove by us might not have  damaged the veracity of their evidence. But in the back ground of the  defence as to the falsity of PWs. presence, the existence  of these   contradictions makes a  lot of difference, more so when the prosecution  has failed to explain the delay in filing the complaint.  This is because of  the fact that according to the defence the  incident in question must  have taken place without their being  eye witnesses, and when noticed  in the morning a complaint was lodged after due deliberation involving  these accused persons. :8:         As noticed above the prosecution has also relied on certain  recoveries made at the instance of A-1.  Firstly it is stated that the blood  stained clothes worn by the accused at the time of arrest were seized by  the police . In regard to the  place  from where these were seized , there  is contradiction as to whether it was taken off from the person of A-1 or  was taken from a place where the clothes were kept in his house.  Be  that it may the prosecution case is that these clothes were blood stained  though washed, still the stains were visible hence was sent to chemical  examination which has established  the   stains were of blood.   Therefore the same was sent to Serologist who opined that he could not  give an opinion as to the origin of the blood meaning thereby the blood  stain that was noticed by him on the clothes cannot be said to be that of  human origin.  In such situation  this circumstance of recovery of blood  stained clothes will be of no assistance to the prosecution.  Similar is the case in regard to recovery of an axe.  In regard to  this, witnesses for the recovery  say they found small stain of blood on  it.  The serologist in regard to this blood also states that it is not  possible to find out the origin of the same.  Therefore, even this  recovery  would   not  in  any  manner help the prosecution in this case.   :9: Even otherwise if the prosecution case in regard to Pws. 1& 3 are not  acceptable then these recoveries by themselves would not take the  prosecution case any further.         In this background if we consider the alleged motive, we notice  that the prosecution has stated that there was some theft in the house of  PW-4 about a month prior to the incident in regard to which PW-4 had  complained to the police blaming A-1’s family.  Police were  investigating the said case, and this was the motive for the murder.  We  notice according to the prosecution case itself after  the lodging of  complaint and till the date of incident there has been no untoward  incident of any kind between the two families though they are  neighbours.  In such a situation it is extremely difficult to accept that  the respondent herein would entertain a motive to eliminate the son of  PW-4 for having made a complaint against him or his family.  Thus  even the motive suggested, in our view, is very weak.  It is based on  these facts available from the evidence of the prosecution,  the High  Court rightly came to the conclusion that it was not safe to base a  conviction on the accused,  hence  it allowed the appeal.

:10:

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We agree  with the said finding  of the High Court and dismiss  this appeal.