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PETITIONER: RAJA RAM AND ORS.PREM SINGH & ANR.

       Vs.

RESPONDENT: STATE OF MADHYA PRADESH

DATE OF JUDGMENT:       16/01/1997

BENCH: M.K. MUKHERJEE. S.C. KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:                             WITH                CRIMINAL APPEAL NO. 3 OF 1993                       J U D G M E N T      S.P. KURDUKAR, J.      Tola Ram son of Sidhu (since deceased) was the resident of village  Lorwas. Ramesh  (PW 3), Prabhu, Rattan, Daya Ram (PW 4),  Bondu and  Bheru are  the sons of Tola Ram. A month prior to  the date of incident i.e. October 24, 1984, Ramesh (PW 3),  his brother  Prabhu  and  their  two  friends  were sitting under a mango tree at about 10.00 a.m. Kodar Mal (A- 6) was passing by the said mango tree when Ramesh (PW 3) and his companions teased him (A-6) by saying‘Topiwale Darbar Ek Bidi De  Do’. A-6  felt offended  and alleged  to have given fist and kick blows to Ramesh. On intervention of Jaggu, the matter ended there but A-6 threatened them that he will deal with Ramesh  in a short while. October 24, 1984, happened to be the  Diwali Day and at about 8.00 p.m., Ramesh (PW 3) was going to  the house of Badri Lal Kulmi to colour the cattle. Bheru and Bondu, other two brothers were also going with him to colour  the bullocks  of Jagdish. When they came near the chowk, Prem  Singh (A-1)  and  Kodar  Mal  (A-6)  surrounded Ramesh and  told him  that now  they would  tell him how the ‘Topiwala Darbar’  was? A-1  and A-6 assaulted Ramesh (PW 3) with lathis  as a  result of  which he fell down and then he was dragged  by these  two accused persons, catching hold of his legs.  Bondu then  called his brother Daya Ram who tried to rescue  Ramesh when  he was given lathi blows on his head by these  two accused  persons. In  the meantime,  Tola  Ram Reached that  place whereupon  Raja Ram (A-2) gave a lalkara that Tola  Ram should be finished. Narain Singh (A-3), Bheru Singh (A-4),  Dhan Singh  (A-5) and  Kodar Mal  (A-6) caught hold of Tola Ram whereupon Prem Singh (A-1) and Narain Singh (A-3) assaulted him with lathi and farsi. Tola Ram sustained bleeding injuries  and fell down whereupon Ramesh (PW 3) and his  other   companions  ran  away  out  of  fear.  After  a shortwhile, Kanchan  Bai and  her husband  Ganpat  alongwith Ramesh (PW  3) came  to the place of occurrence, lifted Tola Ram and  brought him  to his house. Since it was night time, they could not secure a bullock cart to take Tola Ram to the police station  at Shahjahpur.  First Information Report was

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lodged by Ramesh (PW 3) on 25th October, 1984 at about 11.30 a.m. at  Shahjahpur police  station. After recording the FIR (Ex.P5), Mohkam  Singh, SHO (PW 8) proceeded to the place of occurrence. After  holding the  inquest on  the dead body of Tola Ram,  it was  sent to the District Hospital. Shahjahpur for post mortem examination. Ramesh (PW 3) and Daya Ram were also sent  to the  hospital  for  medical  treatment.  After completing the  investigation, a  charge sheet  came  to  be submitted against the six accused persons for committing the offences punishable under Sections 148, 302/149, 302,324/149 of the Indian Penal Code. 2.   It needs  to be  mentioned that Kodar Mal (A-6) who had also sustained  the injuries on his head, lodged a complaint in the  very same  police station about an assault on him be Tola Ram  and others  (complainant party). A-6 was also sent to the hospital and was treated for injuries on his head. It is the  common premise  that the  complaint  lodged  by  A-6 remained unattended  and no  steps whatsoever  were taken in that behalf by the SHO of Shahjahpur police station. 3.   All the  six accused  persons  denied  the  allegations levelled against  them  and  pleaded  that  they  have  been falsely implicated in the present crime due to the enmity on account of  election.  According  to  Kodar  Mal  (A-6),  on October 24,  1984, he  was assaulted  by Ramesh (PW 3), Daya Ram and  Tola Ram  and during that assault, he had sustained serious injuries  on  his  head.  All  the  accused  persons pleaded that they are innocent and they be acquitted. 4.   The prosecution  in support of its case relied upon the evidence of Ramesh (PW 3) and Daya Ram (PW 4) who claimed to be the  eye  witnesses  to  the  incident  in  question.  In addition to  this evidence, prosecution also examined formal witnesses and relied upon the post mortem examination report and the  injury certificates  in respect  of Ramesh and Daya Ram. The  defence examined  three witnesses  in  support  of their defence. 5.   The learned  trial  judge  on  appraisal  of  oral  and documentary evidence  on record  by his  judgment and  order dated 17th  February, 1986  convicted Prem Singh (A-1) under Sections 302  and 147 of the Indian Penal Code and sentenced him to  suffer imprisonment  for life  and RI  for two years respectively (two  counts). A-2  to A-6  were also convicted under Section  302 read  with Sections  149 and  147 of  the Indian Penal  Code and  each one  of them  was sentenced  to suffer life  imprisonment and  RI for two years respectively (two counts).  Substantive sentences  were  ordered  to  run concurrently. 6.   Aggrieved by  the judgment and order of convictions and sentences passed  by the trial court, Raja Ram (A-2), Narain Singh (A-3).  Bheru Singh  (A-4) and  Dhan Singh (A-5) filed Criminal Appeal  No. 80 of 1986 whereas Prem Singh (A-1) and Kodar Mal  (A-6) filed Criminal Appeal No. 93 of 1986 in the High Court  of Madhya Pradesh. Both these appeals were heard together and the High Court by its common judgment and order dated 28th  April, 1992  dismissed both  the appeals.  Being aggrieved thereby,  all the  accused  on  obtaining  Special Leave filed  two separate  criminal appeals. Criminal Appeal No. 2 of 1993 is filed by A-2 to A-5 and Criminal Appeal No. 3 of 1993 is filed by A-1 and A-6. 7.   We are  taken through the judgments of the courts below as well  as the oral and documentary evidence on record. The High Court  being the  first appellate court was expected to analyse the evidence of eye witnesses and other materials on record. In  the entire  judgment, we  do not  find any  such analysis of  the evidence and consequently, we were required to go through the evidence on record.

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8.   At the  outset, it  may be  stated that learned counsel for the  appellants did not seriously dispute before us that Tola Ram  died a  homicidal death. Dr. Deosuman Mehta (PW 1) who held  the autopsy  on the dead body of Tola Ram, noticed the following injuries:-      1.  Lacerated   wound  on   tempero      occipital region  right side 2-1/2"      x 1/2"  - Fracture  of temperol and      occipital bone was seen.      2.  Lacerated  wound  on  occipital      region  2-1/2"   x  1/2".  Multiple      fracture  of   occipital  bone  was      seen. Brain  matter was  coming out      from the would.      3.     Contusion      on      right      hypochondrieum 1-1/2".      4. Contusion  on right arm fracture      of right humerous was seen.      Dr. Deosuman  testified that  all these  injuries  were ante mortem  and cause  of death  was due to shock caused by multiple fracture of skull bone and haemorrhage. 9.   In view  of  this  medical  evidence,  we  confirm  the finding of the courts below that Tola Ram met with homicidal death. 10.  It is  brought to  our  notice  during  the  course  of hearing that  Raja Ram (A-2) who was on bail died during the pendency of the appeal. Therefore, the appeal to that extent stands abated. 11.  In order  to prove  the complicity  of  the  appellants accused, the  prosecution strongly  relied upon the evidence of Ramesh  (PW 3)  and Daya  Ram (PW  4) who  were  the  eye witnesses. They  also sustained  injuries  on  their  person during the  incident  in  question.  Ordinarily,  therefore, their evidence must receive a credence. Ramesh (PW 3) lodged a First  Information Report (Ex.P5) on 25th October, 1984 at 11.30 a.m.  There are  some discrepancies in his evidence as to whether  he or  his relation  Ganpath who accompanied him narrated the  incident to  the officer on duty at the police station. When  the witness  was found  inconsistent with his statement recorded under Section 161 of the Cr. P.C., he was declared hostile  and permission  to cross-examine  him  was sought. We have gone through his evidence very carefully and notwithstanding the fact that he is an injured witness and a son  of  Tola  Ram,  shown  ignorance  on  various  material circumstances. We,  therefore, do  not find it safe to place any reliance  upon his  evidence. The  High Court had not at all considered  this aspect  in its judgment and erroneously accepted his  evidence as truthful. It was rightly submitted on behalf  of the appellants/accused that the High Court had committed an  error while  accepting the  evidence  of  this witness as  credible. We,  therefore, leave his evidence out of consideration. 12.  The next  eye witness  is  Daya  Ram  (PW  4)  who  had received injuries  while trying  to rescue  Ramesh from  the assault by the accused persons. Daya Ram testified that when Ramesh was  being assaulted by A-1 and Kodar Mal, his father Tola Ram  reached there.  he also  reached at  the place  of occurrence when  Ramesh  was  being  assaulted.  He  further stated that  A-1 hit  on the  head of Tola Ram with a saria. Narain Singh  (A-3) gave  farsi blows on the hand and leg of Tola Ram  who then  fell down  on the  ground and thereafter other accused  started beating him with lathis. After seeing this assault,  he, Ramesh  (PW 3), Bheru and Bondu ran away. The evidence of this witness does not find any corroboration from the  medical evidence  as regards  the blow  alleged to

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have been given by Narain Singh (A-3) by farsi. As indicated above, there was no injury on the person of Tola Ram, caused by any  sharp weapon. All that, therefore, remains proved on record is  that Prem  Singh (A-1)  had given a saria blow on the head  of Tola  Ram. This  witness tried  to magnify  the incident by  stating that  after Tola  Ram fell  down, other accused persons  assaulted  him  with  lathis.  Surprisingly enough,  this   part  of   his  evidence   does   not   find corroboration from  the medical  evidence. It  is  in  these circumstances, we do not find it safe to accept his evidence to prove  the complicity of A-3 to A-6 in the present crime. There is  sufficient material  on record  to show that Kodar Mal (A-6)  had sustained  a injury on his head and infact he was admitted in the hospital for treatment. It also needs to be noted that Kodar Mar (A-6) had gone to the police station and lodged  a complaint as regards the assault on him caused by the  deceased Tola  Ram and others but the police did not take any  step  to  investigate  into  this  complaint.  Dr. Qureshi (FW  2) has testified that Kodar Mal was admitted in the hospital  for his  injuries on  head. Kodar Mal (4-6) in his statement recorded under Section 313 Cr.P.C. stated that he was  assaulted by  the complainant  party on  October 24, 1984, at  about 8.30  p.m. at chowk wherein he sustained the bleeding injuries.  No explanation whatsoever is forthcoming from prosecution. After considering the oral and documentary evidence  on   record,  we  are  of  the  opinion  that  the prosecution has  failed to prove its case against A-3 to A-6 beyond reasonable about and, therefore, they are entitled to be acquitted of all the charges. 13.  As  regards  Prem  Singh  (A-1),  there  is  sufficient evidence on  record to  prove that  he assaulted Tola Ram on his head  with a saria and as a result thereof, be sustained two lacerated  wounds on  his temperol  occipital region  on right side and on occipital region which caused the fracture of temperol  and occipital  bone. Dr. Deo Suman, the medical expert has  testified that  the cause  of death  was due  to shock  caused   by  multiple  fracture  of  skull  bone  and haemorrhage. In this view of the matter, Prem Singh (A-1) is individually held  responsible for causing the death of Tola Ram and,  therefore, his conviction under Section 302 of the Indian Penal Code has to be sustained. We accordingly do so. As regards  the conviction  of Prem  Sigh (A-1)  for rioting under Section  147  of  the  Indian  Penal  Code  cannot  be sustained in view of the act that the other co-convicts have been acquitted  of all the charges. We accordingly set aside the conviction  of the  appellant  Prem  Singh  (A-1)  under Section 147  of the  Indian Penal Code and acquit him of the said charge. 14.  For the foregoing conclusions, Criminal Appeal No. 2 of 1993 filed by Narain Singh (A-3), Bheru Singh (A-4) and Dhan Sigh (A-5)  is allowed.  They are given the benefit of doubt and  are  acquitted.  Consequently,  their  convictions  and sentences to  stand set  aside. Bailbonds of A-3 and A-4 are cancelled. Dhan  Singh (A-5)  who is  in custody be released forthwith, if not required in any other case. Appeal of Raja Ram (A-2) to stand abated.      Criminal Appeal  No. 3  of 1993  is partly allowed. The order of  conviction and  sentence passed  against Kodar Mal (A-6) is  quashed and  set aside and he is given the benefit of doubt  and accordingly  acquitted of all the charges. The conviction and  sentence of  Prem Singh  (A-1) under section 302 of the Indian Penal Code is confirmed, but, however, his conviction and  sentence under  Section 147  of  the  Indian Penal Code  is set  aside and  his appeal  to that extent is allowed. Kodar  Mal (A-6)  be  released  forthwith,  if  not

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required in any other case.