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CASE NO.: Appeal (crl.)  624 of 2007

PETITIONER: Asharam & Anr

RESPONDENT: State of Madhya Pradesh

DATE OF JUDGMENT: 25/04/2007

BENCH: S. H. Kapadia & B. Sudershan Reddy

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL No.  624         OF 2007 (Arising out of SLP (Crl.) No. 4593/2006)

KAPADIA, J.

       Leave granted.         This criminal appeal is filed by the accused against  judgment and order dated 1.5.2006 passed by the Madhya  Pradesh High Court, Jabalpur in Criminal Appeal No. 690/92  whereby the order of acquittal dated 30.8.1991 passed by  Second Additional Sessions Judge, Betul in Session Case No.  22/89 stood reversed. By the impugned judgment, the  appellants stand convicted under Section 307/149 IPC and  sentenced to undergo 5 years R.I. and a fine of Rs. 5000/- to  each accused.         As per the case of the prosecution, on 31.10.1988  Nandan (PW-1), Tikaram (PW-2), and Koshabai (PW-3) had  gone to sow the seeds in their field. After sowing the seeds,  when they were returning to their village, they saw the  appellants along with three others hiding in the field of  Chunni come out of the hiding and assaulted Nandan (PW-1).  When Tikaram (PW-2) and Koshabai (PW-3) came to the rescue  of Nandan, they were also beaten up. All the three were taken  to the village Bijadehi and the FIR was lodged by PW-1 at  Police Station, Bijadehi at 4:00 p.m. where the offence was  registered under Sections 147, 148, 149, 324 and 307 IPC.  The injured were sent to the Bijadehi hospital and from there  they were referred to the District Hospital, Betul where they  were x-rayed. In the x-ray, grievous injuries including  fractures were found on the body of Koshabai and Tikaram.  They remained in the hospital for 10/15 days.

       The main question before the trial court was: whether an  accused committed an offence under Section 307/149 as a  member of unlawful assembly and in furtherance of their  intention, attempted to murder Nandan, Tikaram and  Kaushabai by causing deadly injuries.  

According to the trial court, Nandan made two different  statements in respect of Exhibit P/1 (report), in one statement,  he stated that he did not go to the police station for lodging  the report, in the other, he stated that he had lodged the  report on the insistence of the police at his house and made  his signature thereon. According to the trial court, if PW-1 had  become unconscious at the scene of occurrence and had  gained consciousness only at 8:00 p.m. at the Hospital then  PW-1 could not have lodged the report at 4:00 p.m.. That,

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Rampal was not examined by the prosecution. In the  circumstances, the trial court held that lodgment of the report  (Exhibit P/1) by PW-1 was doubtful. This, according to the  trial court, was one of the circumstances in favour of the  accused.

       According to the trial court, there was serious  contradictions in the evidence of Nandan (PW-1), Tikaram  (PW-2) and Koshabai (PW-3). In this connection, the trial court  noted the evidence of Koshabai in which she stated that at the  time of assault, Bhura and Sukhdev were present but in the  cross-examination, Nandan stated that Sukhdev and Bhura  were not present at the time of assault. This, according to the  trial court, was one of the contradictions in the evidence of  PW-1 which made his testimony doubtful.           According to the trial court, Koshabai in her evidence  stated that all the 5 accused were hiding behind the tuar tree  and they came out together but in her cross-examination she  stated that Dayaram came out first followed by others.  According to Nandan, all the accused came together. On  account of these contradictions, the trial court held that all  the accused did not come together as alleged by the  prosecution. This, according to the trial court, was one more  contradiction between the evidence of PW-1 and the evidence  of PW-3.

Further, according to the trial court, one of the accused,  Mansharam, was ill, he was undergoing treatment under a  Government doctor during the period 20.10.1988 to  10.12.1988, that he was suffering from typhoid, hence  according to the trial court, Mansharam was not at the scene  of offence and eliminating him the number of accused fall  below five and, therefore, there was no question of formation of  unlawful assembly.

       According to the trial court, Nandan had stated that  when  Asharam had tried to assault him with ballam, he  caught hold of ballam in order to snatch it from Asharam; that  during this scuffle, Dayaram, appellant no. 2, had hit Nandan  with the lathi which had only pierced his ear; that Tikaram  (PW-2) was hit by lathi on his right hand, which was fractured;  however, since PW-1 in his evidence stated that the police did  not conduct any investigation and nor did the police record the  statements of the witnesses, the whole evidence of PW-1 was  doubtful.   According to the trial court, even PW-10 (doctor) has not  stated that the injuries caused to PW-1, PW-2 and PW-3 were  dangerous to the lives of the injured, that the injuries like  fracture could have been caused by fall and that the fracture  on the hand was not serious as hands were not vital organs.  According to the trial court, in view of the above evidence no  case under Section 307 was made out and at the most the  case stood covered under Section 324 IPC.

       According to the trial court, there were further  contradictions, namely, according to Koshabai, there was a  scuffle which lasted for two minutes whereas, according to  Sushma (PW-5), the scuffle continued for 10-15 minutes.

       According to the trial court, Nandan, in his evidence, had  stated that when the scuffle started, Dayaram, came from  behind with the lathi and hit him on his ear and Tukaram (co- accused) fractured his right hand with a stick on account of

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which he fell whereas, according to Koshabai, when her  husband fell she fell on him to save him when he was  assaulted by Dayaram and Tukaram. According to the trial  court, Nandan has nowhere referred to assault by Tukaram  and, therefore, his evidence was contrary to the evidence of  Koshabai.  

       According to the trial court, there was doubt even about  the identity of the spot of occurrence. In this connection,  reliance was placed on the contradiction between the  statements of PW-1, PW-2 and PW-3 who stated that the  accused were hiding in the field of Chunni, that they come out  when they saw the complainant, PW-2 and PW-3 and the  evidence of PW-18 who stated that incident occurred 1  kilometer to 1= kilometers away from the field of PW-1.

For the above reasons, the accused were given the benefit  of doubt and acquitted the accused of the charges under  Section 307/149 IPC.

       Aggrieved by the decision of the trial court, the matter  was carried in appeal by the State being Criminal Appeal No.  690/92.  

By the impugned judgment, the Division Bench held that  the complainant party was badly beaten, they were left  unconscious on the spot, the accused thought that the  complainant party was dead upon which they fled and,  therefore, intention of the accused party stood duly  established and, accordingly, the appellants herein were  convicted for the offence under Section 307/149 IPC. The  appellants were accordingly sentenced to 5 years R.I. with fine  of Rs. 5000/- each, in default the accused were required to  undergo further sentence of 5 years R.I.. Aggrieved by the said  decision, the appellants have moved this Court by way of  special leave petition.  

       Mr. Dinesh Dwivedi, learned senior counsel appearing on  behalf of the appellants submitted that the FIR was ante- timing and unreliable. In this connection it was urged that  Nandan (PW-1) in his deposition before the court had stated  that he had not gone to the Police Station, Bijadehi to lodge  the FIR whereas according to the prosecution PW-1 had come  to the Police Station, Bijadehi and had lodged the FIR. In this  connection, reliance was placed on Exhibit P/1. Learned  counsel submitted that PW-1 had totally denied of having gone  to Police Station, Bijadehi to lodge the report and, on the  contrary, PW-1 had deposed in his evidence before the court  that he had become unconscious and had regained  consciousness on 31.10.1988 only in the night. Learned  counsel submitted that PW-1 in his deposition had stated that  he had not lodged the report and that the report was lodged by  Rampal. However, Rampal was not examined by the  prosecution. Learned counsel urged that when PW-1 was the  star witness who stated that he did not lodge the FIR as he  was unconscious throughout the day, it was clear that the  said FIR was fabricated. Learned counsel submitted that there  was prior enmity and, therefore, embellishments in the  evidence cannot be ruled out. In this connection, reliance was  placed on the judgment of the Allahabad High Court in the  case of Shyama Charan and others  v.  State of U.P. reported  in 1984 All.L.J.1303 para 9. In this connection, learned  counsel further urged that apart from the complainant party  consisting of Nandlal, Tikaram and Koshabai, three other  witnesses were related and since there were serious

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contradictions in the evidence inter se all these witnesses, the  FIR was not reliable. In this connection, learned counsel  further stated that according to the police, Nandan (PW-1) was  taken to the Police Station, Bijadehi but according to PW-1 no  such report was lodged by him at the police station. According  to PW-1, the report was lodged at his house, which was visited  by the Inspector. Therefore, according to the learned counsel,  Exhibit P/1 was doubtful. Learned counsel submitted that the  story given in the FIR did not tally with what was stated before  the court by PW-1. Further, according to the learned counsel,  Nandan’s (PW-1) statement under section 161 of the Criminal  Procedure Code was not even recorded by the police. In the  circumstances, according to the learned counsel, the said FIR  was fabricated. It was further urged that the said FIR appears  to have been made 15 days after the incident. Learned counsel  urged that when a person comes with a ballam (spear) it is  highly unnatural of his having hit the wrist or the hands of the  complainant. Learned counsel, therefore, submitted that the  entire story of the attack with the ballam appears to be  unnatural. Learned counsel further urged that even the case  of incident appears to be doubtful. According to the  complainant party and three other witnesses, the accused  along with three others were hiding in the field of Chunni  where the incident is alleged to have taken place. According to  the witnesses for the prosecution, Chunni’s field was close to  Nandan’s field whereas according to the Sub-Inspector (PW- 18) the place of incidence was approximately 1 to 1=  kilometers away from the field of PW-1. Hence, according to  the learned counsel, even the place of occurrence indicated by  the complainants and the other witnesses was doubtful.  Learned counsel submitted that the accused were falsely  implicated on account of enmity between the accused on one  hand and the complainants on the other hand. Learned  counsel submitted that the above  circumstances given by the  trial court show that the case of the prosecution was doubtful  and there was no reason for the High Court to overrule the  judgment of acquittal given by the trial court. In the  alternative, learned counsel submitted that at the highest,  looking to the nature of the injuries, case under Section 324   was made out. Learned counsel, therefore, submitted that the  trial court was right in giving benefit of doubt to the appellants  herein and rendering the order of acquittal in favour of the  appellants herein.  

We do not find any merit in the above contentions.  According to the trial court, the foundation of the investigation  was not proved and, therefore, all the accused were entitled to  acquittal. In this connection, the main circumstance on which  the trial court relied upon is ante-timing of the FIR. In the  present case, we have gone through the notes of evidence. One  of the points which was argued before us was that Exhibit P/1  (FIR) appears to have been made 15 days after the incident.  We are not prepared to accept this argument. The evidence of  Dr. S.B. Aerpude (PW-10) indicates that on 1.11.1988 he had  medically examined Nandan, who was brought to Primary  Health Center, Bijadehi. He was brought by Constable Panja of  Police Station, Bijadehi. The said Constable had come to the  Primary Health Center with a requisition note (Exhibit P/7).  Further, in his evidence, PW-10 has stated that even Koshabai  was brought to the Center by Constable Panja on 1.11.1988  under the requisition slip, Exhibit P/9. In the circumstances,  it cannot be said that FIR was made 15 days after the  incident. The requisition slips carried by the Constable  indicates that the FIR preceded 1.11.1988 when Nandan and  his wife Koshabai were brought to the Center by Constable

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Panja of Police Station, Bijadehi. The question which still  remains to be answered is whether Exhibit P/1 was lodged in  the police station by Nandan or whether it was at his  residence. In this connection, we find that the only  discrepancy is with regard to the place where the FIR was  recorded. There is no discrepancy regarding the contents of  the FIR. It is well settled that an FIR is not a substantive piece  of evidence. It cannot contradict the testimony of the eye  witnesses even though it may contradict its maker. (see  Dharma Rama Bhagare  v.  The State of Maharashtra  reported in 1973 (3) SCR 92 at page 100). Nandan, in his  evidence, had stated that Exhibit P/1 had his signature. That  signature was obtained by the I.O. when the I.O. had come to  his house. However, Nandan had stated that he had not gone  to the police station to lodge the report and that it was Rampal  who had gone to the police station to lodge the report. The  most crucial fact is that the said report bears the signature of  Nandan. It is important to appreciate that Nandan had  collapsed when he was assaulted with lathi by Tukaram. His  arm was fractured. He was taken to Bijadehi hospital where he  regained his consciousness. However, before being taken to  Bijadehi hospital he was taken to his house where his  signature was taken on Exhibit P/1. He was taken to Baitul  hospital after the x-ray. In our view, there is no reason to  disbelieve PW-1. In any event, Exhibit P/1 cannot discredit the  evidence of Tikaram (PW-2) and Koshabai (PW-3). That  evidence corroborates the evidence of PW-1 who has  categorically stated in his evidence that his land was situated  in Neemgarh Village; that before Diwali he had gone to his field  with Sukhdev, Bhure, Tikaram and Koshabai; that after  sowing the field till 12:00 noon, Nandan (PW-1) with others  was returning home for lunch and when the complainant  party consisting of Nandan, Tikaram and Koshabai had  reached the field of Chunni, they saw Asharam, Tukaram,  Dayaram and Mansharam hiding in the tuar; that Asharam,  appellant No. 1, had ballam (spear) with him and the rest of  the accused had lathis; that Asharam came forward to pierce  the spear in his abdomen when he caught hold of the spear;  that there was a scuffle between Asharam and Nandan when  Dayaram, appellant No. 2, assaulted Nandan with lathi from  behind which hit his right ear and, at the same time,  Tukaram, co-accused, gave a lathi blow on the right arm of  Nandan caused its fracture; that at that stage Nandan fell and  the accused started hitting him with lathis;  that when his  wife, Koshabai, saw her husband being assaulted, she fell on  him in order to save him and in that process, Koshabai also  got injured. That even Koshabai sustained injuries on her  hands. That, Tikaram was injured on account of lathi blow  given by Dayaram. According to PW-1, when Nandan became  senseless, the accused fled thinking that he had died. This  part of the evidence is corroborated by the evidence of  Koshabai and Tikaram. In her evidence, Koshabai (PW-3)  stated that Dayaram, appellant No. 2, had also assaulted her  husband with a lathi; that Tukaram, co-accused, had also  assaulted her husband with the lathi which fractured his  hand and at that stage Nandan had fallen down and in order  to save her husband, she fell on him and in the process she  was also assaulted. There are certain discrepancies regarding  the place at which the injuries were inflicted. However, a  common thread runs through the evidence of the three  complainants and other two witnesses who have deposed the  time of the incident, namely, around 1:00 P.M. on 31.10.1988.  They have categorically stated that October was the sowing  time. They have categorically stated that they were returning  for lunch after sowing their fields. They have categorically

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stated that the incident took place at/near Chunni’s field.  They have categorically stated that the accused were hiding in  the tuar. In the circumstances, we are not prepared to believe  the I.O. who stated that the incidence took place 1 to 1=  kilometers away from Nandan’s field. The evidence of  complainant party and the other witnesses mainly PW-5, PW-6  and PW-9 shows the manner in which the assault was carried  out. They categorically deposed that the assailants were armed  with ballam and lathis. The manner in which the injuries were  inflicted have also been elaborately described, moreover,  Nandan, Tikaram and Koshabai were injured witnesses. Their  evidence was fully corroborated by medical evidence. The  evidence further shows that the appellant, Asharam, came  with the ballam, he tried to pierce the ballam into abdomen of  Nandan; that if Nandan would not have caught hold of the  ballam, Asharam had almost succeeded in piercing the spear  into the abdomen; and lastly, the evidence shows that the  accused fled when they thought that Nandan had died when in  fact he had become unconscious on account of injuries.  Therefore, the weapons were used by the accused as intended  to be used. We are further of the view that there were minor  omissions in the statement under Section 161 CrPC. There  were no contradictions. The injuries have been duly proved.  This is not a case where there are no injuries. There were 16  injuries on the body of Nandan, 4 on Koshabai and 7 on  Tikaram. They were hospitalized for 15 days. Further, at this  stage, we may point out that even according to Koshabai after  the accused fled, she and Nandan had come to their house at  Bijadehi where the police had come and from the house of  Nandan and Koshabai, the complainant party had gone to  Bijadehi hospital around 4:00 P.M. in the evening. Therefore,  it is clear that the police had gone to the house of Nandan and  Koshabai where the signature of Nandan was obtained on  Exhibit P/1. Under the above circumstances, the High Court  was right in coming to the conclusion that there was a  common intention to cause serious injuries; that the presence  of all the accused was proved on the scene of offence; that the  specific role performed by each of the accused stood  established and, therefore, there was intention to murder and,  consequently, the High Court was right in convicting the  accused under Section 307 read with Section 149 IPC. We are  also in agreement with the view of the High Court that           Dr. Narvaria (DW-2), Medical Officer, Chicholi had not proved   his having treated Mansharam, co-accused, (for typhoid)  during the period 28.10.1988 to 10.12.1988. That, DW-2 did  not produce any document or register of the Health Center to  show that Mansharam was an indoor patient in the hospital.  That, there was nothing to show that he was treated in a  private hospital. DW-2 had deposed that he had issued the  certificate Exhibit D/7 on the demand made by Mansharam.  The doctor did not maintain any register of the certificates  issued by him, particularly when he says that he had private  practice also. In the circumstances, the High Court was right  in disbelieving Dr. J.P. Narvaria. In the present case, Nandan,  Koshabai and Tikaram are the eye witnesses. They are injured  eye witnesses. Hence, on the evidence, discussed above, there  is no reason to doubt their credibility. Even assuming for the  sake of argument that there are inconsistencies in the  deposition of Nandan, we see no reason to disbelieve the  evidence of Koshabai and Tikaram, who have substantially   corroborated the evidence given by Nandan, particularly with  regard to the place at which the 5 accused had assembled in  the tuar, the spot at which the occurrence took place, namely,  Chunni’s field, the manner in which the assault was carried  out, the weapons carried by the assailants and the manner in

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which the injuries were inflicted. Lastly, the evidence further  shows the running away of the accused from the scene of the  offence after they saw that Nandan had fallen down on the  ground when they thought him to be dead, when actually  Nandan had become unconscious. In the circumstances, the  offence under Section 307/149 IPC stood proved.

       For the aforesaid reasons, the conviction rendered by the  High Court is upheld and the appeal is accordingly dismissed.