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PETITIONER: KASHIRAM

       Vs.

RESPONDENT: STATE OF M.P.

DATE OF JUDGMENT:       16/10/1998

BENCH: M.K. Mukherjee, M. Srinivasan.

JUDGMENT:

SRINIVASAN, J.

       The appellant and six other persons stood prosecuted for offences  under  Ss.    147,  148, 302 read with 149 and 307/149.  They were acquitted  by  the  Additional  District Judge, Narisinghgarh, Distt.   Rajgarh (Byara), W.P.  State. On appeal, the High Court confirmed the  acquittal  of  five persons  but  reversed  the Judgment of the trial Judge with reference to the appellant and another by  name  Ram  Singh. The  appellant  was convicted for offences under Ss. 302 and 324 IPC and sentenced to imprisonment for life u/s  302  and imprisonment  for  four  months and a fine of Rs. 1000/- u/s 324. We are not concerned with the other accused as  he  has not come to this Court.

2.      The  case of the prosecution is shortly as follows : There was prior enmity between the accused  persons  on  the one side  and  Gorelal and others on the other.  The accused persons formed an unlawful assembly and on 29.12.86 at about 2 P.M.  committed the murder of Gorelal  in  the  jungle  of Padiliya Khadi.    Ram  Singh  and  the  appellant  shot the deceased with a gun.   They  caused  gun  shot  injuries  to Nankram,  Deochand,  Beni Singh and Ramesh in the attempt to murder them.  Nanak Ram became unconscious.  Sewa Ram  (PW1) was  working  in  is field when he saw a bullock cart coming from forest side.    On  hearing  sounds  of  screaming  and wailing,  he  went  to  the  cart and found the dead body of Gorelal.  He was informed by Hiralal s/o Ramratan  that  the appellant,  his  brother Bhanwaria, Amritlal, Daryhao Singh, Kailash, Ram Singh and Pappu Killed Gorelal in  Chhapra  and that Ram  Singh and the appellant fired guns at Gorelal.  He was also informed that the others sustained bullet-injuries. Thereafter Sevaram went to the police Station at  Kotra  and reported the  matter at 5.50 P.M., the same day.  The report was recorded.  J.S.  Tomar (PM9),  SHO  registered  offences u/ss  147,  148,  302,  307  read  with  149  vide Crime No. 148/86.

3.      After  investigation  the   accused   persons   were prosecuted.   They  denied  the  charges  and  pleaded false implication.  They also pleaded that the  complainant  party caused damage  to  their  tractor.    After trial, the trial Judge acquitted all the accused.  On appeal  by  the  State, the   High  Court  reversed  the  judgment  as  regards  the appellant and Ram Singh and convicted them while  confirming the acquittal of the rest of the accused.

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4.      The   appellant’s   counsel   made   the   following submissions:-  The FlR was not lodged on the same day but it was done only on the next day.   The  appellant  has  proved alibi and  he was not at the place of occurrence.  No doctor has been examined to  prove  the  alleged  injuries  of  eye witnesses.   Nor have they produced any medical certificate. The  evidence  of  the  prosecution  witnesses  is  full  of discrepancies.   The  driver of the tractor recovered by the prosecution was not examined by it, and he has been examined by the defence.  His evidence corroborated by the damage  on the  tractor  proves  conclusively  the defence version. The Judgment of the High Court is perfunctory and unsustainable.

5.      Learned counsel for the State submitted that all the witnesses of the prosecution are consistent in stating  that the appellant fired the gun after getting it from Ram Singh. According  to him the appellant has failed to plead or prove alibi and DW1 was not the driver of the tractor in question. He argued that  no  suggestion  of  alibi  was  put  to  the prosection witnesses  by  the defence counsel.  According to him the judgment of the high  Court  does  not  warrant  any interference.

6.      We heard  counsel  on both sides at length.  We have perused the entire evidence  on  record.    There  are  five eye-witnesses, namely,  PW2, PW12, PW13, PW14 and PW15.  All of them  except  PW2  received  gun-shot  injuries.    Their evidence  is  consistent  and  excepting minor discrepancies which are natural due to frailty of  human  memory,  nothing has been  pointed  out for discrediting their evidence.  All the five witnesses have categorically spoken to the presence of the appellant on the spot and his firing the  gun  after taking it  from  Ram Singh.  The argument that no doctor has been examined to prove the  injuries  of  the  witnesses  is without any  substance.    Nothing  has been elicited in the cross-examination to  enable  the  court  to  discard  their version of  having  suffered  injuries.   On the other hand, suggestions have been made in the cross  examination  as  if there was a fight between the two groups at the spot.

7.      Though  learned  counsel  in  the  beginning  of the arguments attempted to make a point about the lodging of the FIR on the next day, he realised the futility  thereof  when it  was  pointed  out that PW1, the Chowkidar of the village rushed to the Police station and gave the information to the S.O.  around 5 P.M.  According  to  the  witness,  the  S.O. before  lodging  the report went to the spot to make enquiry and returned much later to lodge the report.    The  witness cannot  be disbelieved on that ground and the High Court has adverted to this aspect of the matter.

8.      The main plank of the argument  of  the  appellant’s counsel was  ’alibi’.   According to him the evidence of the DWs and the records produced by DW3 prove that the appellant attended the Court of Naib Tehsildar on  that  day  situated about  60  to  70  kms away and the appellant could not have been present at the place of occurrence.  There are  several circumstances which  disprove  the case of alibi.  There was no  consistency  in  the  suggestions  made  to  prosecution witnesses when  they  were cross-examined.  A suggestion was made to PW2 that he himself and the  members  of  his  group attacked the appellant and his driver.  The suggestion could be  only  on the basis that the appellant was present at the spot.  No suggestion was made to PW2 that the appellant  was

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not there   at  the  time  of  occurrence.    There  was  no suggestion to PW13 that the appellant was not present there. When the appellant was questioned under s.313,  he  did  not say that  he  was  not present at the spot.  All his answers were mere denials of the evidence put to him.

9.      Strong reliance is placed on the evidence of DW1 who claims to be the driver of the tractor which  was  found  on the scene  of  occurrence.    But  the number of the tractor given by him is different from the  number  of  the  tractor seized.  His entire evidence is wholly unreliable.  The High Court  has  rightly  characterised him as got-up witness and his evidence is rejected.

10.     The evidence of DW4 does not inspire any confidence. He claims  to  have  been  present  in  the  court  of  Naib Tehsildar  along  with  the appellant. But Ex. D-7 disproves his statement. In that case he  was  non-applicant  and  the order  discloses  that  he  was  not present in Court and he should be informed  of  the  order.  DW3  who  produced  the records  from  the  court  of  Naib Teshildar proves equally unreliable. His version that cases in the Court of the  Naib Tehsildar  started  only  at  2 P.M. is too big a pill to be swallowed. He could not state clearly the time at which  the statements  containing  the  signature of the appellant were recorded. It is quite obvious that he is a partisan  witness and no reliance can be placed on his evidence.

11.     In the facts and circumstances of the case, there is no difficulty in rejecting the version of the appellant that he was not  present  on  the  scene  of  occurrence  at  the relevant time.    The other matters relied on by the learned counsel for the appellant in support of his contention  that the  evidence  of  the prosecution witnesses is unacceptable are not of much significance  or  sufficient  importance  to negative the reliability of the prosecution witnesses.

12.     In  the  result  we  hold  that  the  High Court was justified in reversing the judgment of acquittal  passed  by the  trial  Court  and convicing the appellant under section 302 as well as section 324 IPC.  The  sentences  awarded  by the  High  Court  are  quite appropriate and do not find any warrant to interfere with the same.  The appeal fails and is dismissed.