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PETITIONER: RAMBILAS & ORS.

       Vs.

RESPONDENT: STATE OF MADHYA PRADESH

DATE OF JUDGMENT:       03/10/1997

BENCH: M.M. PUNCHHI, S.P. KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T S.P. KURDUKAR, J.      The High  Court as  well as the Sessions Court by their concurrent  judgments  held  the  appellants  in  all  these criminal appeals  guilty   of committing  the murder  of one Deosharan &  Devsaran s/o  Bigen and  convicted  them  under Sections 302  and 201  IPC and sentenced each one of them to suffer imprisonment  for life  on first count and two years’ RI on  second count.   Substantive sentences were ordered to run concurrently.   These  appeals have  been filed  by  the appellants (convicts) through jail. (2)  Deosharan (since deceased) hailed from village Chirmari and at  the relevant  time he  was staying  at the  house of Rambilas & Vilas (A-5). Deosharan was said to be a notorious person and  was adicted to liquor and womanizer too.  He was said to have married four times and has even eloped with the wife of  A-5 for  a short period and after returning started living with  A-5 only.   It  was alleged  that there  was  a dispute between  Deosharan and  his father  Bigen (P.W.1) on one hand  and Samarsai  (Bigen’s nephew)  on the other.  The occurrence took  place on  3.5.1985 and  on that  day "Ganga Dashara" a  festival was  being celebrated in the said area. he occurrence  in question took place late in the evening at about 10.30  p.m. On  this festival occasion villagers drink and  dance   during  the  night.    It  is  alleged  by  the prosecution that  at about  10.30 p.m. some of the villagers heard the noise of sticks during marpeet and because of this noise the  prosecution witnesses,  namely,  Devsai  (P.W>2), Sitaram (P.W.3),  Sukhnath (P.W.5),  Suddhooram (P.W.6)  and one Ramdin  woke up from the sleep and went in the direction of Pondi  Bathan Dad  from where  the noise  of marpeet  was coming.  These eye witnesses claimed to have seen the actual assault caused  by the  appellants on  Deosharan.  All these eye witnesses  requested the  appellants to  spare Deosharan but however,  the appellants prohibited them from going near the place  where marpeet  was going  on and  threatened them saying that  if they  feel their lives are precious, go away from the  said place.   These  eye witnesses further claimed that  the  appellants  told  them  that  they  had  finished Deosharan.   The eye  witnesses who were unarmed returned to

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they village  and broke  the news and also went to the house of  Sarpanch  to  apprise  him  about  the  incident.    The witnesses and  some other  villagers thereafter  went to the place of  occurrence but  they did not see the appellants as well as  the dead body of Deosharan.  After returning to the village next day morning these eye witnesses contacted Bigen (P.W.1) and  informed him  about the  incident.  The FIR was accordingly lodged.  During interrogation Bahadur (A-2) made a statement  which led  to the  discovery of  the dead  body which had  been thrown  into the  tank.  The  dead  body  of Deosharan was  fished out  and after  holding the autopsy on the dead  body it was sent for post mortem examination.  The other   accused    persons   were   also   arrested   during investigation.  After completing the necessary investigation a charge-sheet came to be filed against the appellants under Sections 302 and 201 IPC. (3)  The appellants denied to have committed any offence and pleaded  that  they  are  innocent  and  have  been  falsely implicated in the present crime. (4)  At  the   trial  prosecution  examined  as  may  as  13 witnesses of  whom P.W.2,  P.W.3, P.W.5 and P.W.6 claimed to be eye  witnesses.   The memorandum of disclosure statements of various  accused persons prepared under Section 27 of the Evidence Act  during investigation  and  the  recoveries  of various incriminating  articles made  pursuant thereto  were also relied upon to bring home the guilt of the accused. (5)  We have  very carefully  gone through  the judgments of both  the  courts  below  and  with  respect  we  find  that notwithstanding the  concurrent  judgments  thereof  we  are unable to  sustain the  convictions of the appellants on any count.   It is well settled that this Court would be slow to interfere with  the findings of facts recorded by the Courts below which are based on appreciation of evidence but we are of the  considered view  that the  Sessions Court as well as the High  Court have  mechanically read  the evidence of eye witnesses and  totally ignored  the well  known principle of appreciation of  evidence.   We  have  very  carefully  gone through the  evidence of  P.W.2, P.W.3,  P.W.5 and P.W.6 who claimed to be the eye witnesses.  If we compare the evidence of these  eye witnesses it is immediately noticed that their evidence is  just like  a  parrot,  telling  about  what  is taught.  Even the omissions, contradictions and improvements are identical.   The claim of these eye witnesses is totally unbelievable when  they testified  that they had gone to the place of  occurrence.  The distance between their houses and the place  or occurrence  is said to be one furlong.  It was night time  and the  only light  to be  one furlong.  It was night time  and the  only light  available was  that of  the Moon. A festival "Ganga Dashara" was being celebrated in the village and  these witnesses  claimed that  they  heard  the noise of  marpeet by  sticks and,  therefore, they  woke up. During the cross-examination they tried to explain by saying that they  were not  fully asleep and, therefore, could hear the noise  of marpeet.   They  claimed  that  they  had  not consumed by  liquor.  Their further claim was that when they went to  the place of occurrence they all had earlier met at a place which was in front of the house of Sukhnath (P.W.5). The claim of Sukhnath was that he overheard the talk between other eye-witnesses  and, therefore,  he came  out and  went along with  them to the place of occurrence.  The claim made by these  eye witnesses  in their  examination-in-chief  was that they  had actually seen the assault on Deosharan by the appellants but  during cross-examination  they admitted that they did  not see  the actual assault as they were prevented from going  to the  place of  occurrence by  the appellants.

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The talk between the appellants and these four eye witnesses was again  absolutely identical without adding a word ’less’ or ’more’.  In addition to the above, the salient feature of their evidence  is that  after some  time they again went to the  place   of  occurrence  but  they  could  not  see  the appellants as  well as the dead body.  They searched for the appellants during  the whole night.  This claim of these eye witnesses is  difficult to  be accepted because according to them, they  had already  been threatened  by saying  that if they make  any noise  they would  meet the  same  fate  like Deosharan.   The assertion  of these witnesses that they had gone to  the place  of occurrence during that night appeared to us  a cock  and bull story.  Another circumstance weighed with us  is that despite such a ghastly attack on Deosharan, none of  them  ever  thought  of  going  to  the  father  of Deosharan to  inform him  about the incident.  They also did not go  to the police station during the same night to lodge the First  Information Report.   Further  more the  story of these eye  witnesses as  regards the  assault o Deosharan is also not  corroborate from  the medical  evidence.  Dr. S.S. Pankera (P.W.4)  and noticed  three external injuries on the head and may small injuries on the whole chest, backside and both feet,  knees and below knees.  Dr. S.S. Pankare further opined that  the dead  body was  mutilated and  there was  a fracture on  occipital portion  and blood  clot was  present inside the skull.  One has to only test this evidence on the touchstone of  probability that  when five  appellants  were simultaneously attacking  Deosharan with the sticks in their hands, of which the noise was heard from the distance of one furlong, there  ought to have been many more injuries on the dead body of Deosharan.  After going through the evidence of these four  star witnesses who constituted a backbone of the prosecution story, we are of the considered view that in all probabilities it was a blind murder. (6)  It is  no doubt true that there was no motive for these eye witnesses  to implicate  the appellants  in the  present crime.   That by  itself  would  not  lend  any  full  proof assurance that  their evidence  is credible and trustworthy. It has  also come  on the  record that  because of notorious character of Deosharan he had many enemies in and around the village and  if that  be so the probability of somebody else other than  the appellants  being the  assailant  cannot  be ruled out,  the courts  below, in our opinion, had failed to read the  evidence  of  these  eye  witnesses  in  a  proper perspective and  had fallen  into error  in accepting  their evidence as credible and truthful. (7)  Coming  to  the  other  corroborative  evidence,  viz., recovery of  certain incriminating  articles at the instance of the  appellants under  section 27  of the  Evidence  Act, assuming it  to be  true, the  same cannot form the basis of conviction in  the present case.  In our considered view the Sessions Court  as well  as the  High court had committed an error while convicting the appellants under Sections 302 and 201 IPC and consequently both the judgements are required to be upset. (8)  For  the  reasons  recorded  here  in  above  we  allow Criminal Appeal Nos. 325-29/96 filed by the appellants.  The judgments  and  orders  of  conviction  passed  against  the appellants by the courts below are quashed and set aside and the appellants  are acquitted  of  all  the  charges.    The appellants who  are in  jail be  released forthwith  if  not required in any other case.