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CASE NO.: Appeal (crl.)  1131 of 2000

PETITIONER: Prem Narain and Anr.

RESPONDENT: State of Madhya Pradesh

DATE OF JUDGMENT: 29/11/2006

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: JUDGMENT

S.B. SINHA, J.

Accused  No.1-Premnarain  and  accused No. 3-Jagdish before the trial Court are before us against the judgment  of   conviction   and   sentence passed under Section 304  (II) of  the  I.P.C whereby they were sentenced to undergo five years’ rigorous imprisonment.

Accused No.1, the appellant herein together with accused   No.2  - Ramcharan, accused No.4- Parmeshwar and  Accused  No.6-Chunnilal was prosecuted for committing the  murder of Gopal Singh.  Accused  Nos. 5 and 6 were acquitted  by the  learned trial Judge. Accused No.2 and accused No.4 have been acquitted by the High Court.

The first informant-Ganeshi Bai is the wife of the deceased  Gopal  Singh. As   per   the   First  Information Report,  the incident occurred at about 11 a.m. on 6.7.1985.  From  a  perusal  of  the  First   Information Report, it appears that allegations were made that at 9 a.m.  Prem Narain and Parmeshwar came to her house and asked her husband as to where he had been in the previous night. According to the deceased he was in Barelly. Parmeshwar asked  her husband to come to Bareli to which he replied that he could come  a little later.  At about 11 a.m. her husband  left for Barelly and in the lane (Gali) Ram Charan, Prem Narain, Jagdish and Parmeshwar intercepted him and then started assaulting her husband. He raised alarm and upon hearing the same the first informant came running there and saw the deceased lying in the lane and all the four accused persons assaulting him. The dead body was found in the field of Shankar.

It was disclosed in the First Information Report that Prem Narain and Ram Charan assaulted him with Ballam(spear) and  Jagdish and Parmeshwar assaulted him with lathis.

Ganeshi Bai allegedly informed Chunni Lal immediately thereafter, who came to the place of occurrence and having found the deceased to have breathed his last, accompanied her to the Police Station. The Police Station was at a distance of 5 k.m. from the place of occurrence. The First Information Report was recorded on 6.7.1985 at about 11 a.m.

Indisputably the eye witness on whose testimony the judgments of conviction and sentence were passed both by learned trial judge as also the High Court are Ganeshi Bai- P.W.1 and Kallu-P.W.3. Than Singh-P.W.2  who was named  as an eye witness  in the FIR was declared hostile. Bhagwati Singh-P.W.4 another so called eye-witness also was declared hostile. No part of their evidence was believed by the learned trial  Judge as also by the High Court.

The first informant-Ganeshi Bai in her evidence before the Court gave a completely different picture than disclosed in the First Information

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Report. The time and place of incident was also changed.  According to her before the Court, at about 10 a.m.  Peeta. (not  Prem Narain and Parmeshwar) came to her house  and called her husband saying that they want to go to Brailey. Conversations which purported to have taken place with regard to whereabouts of the deceased in the previous night had not been disclosed. Whereas according to the First Information Report, the deceased started for  going to Barelly after taking his breakfast, he was accosted in the lane by the persons named   as accused in the First Information Report;  in her statement  before the Court she stated Peeta Ram asked her husband to come immediately whereupon Chunni Lal caught hold hand of her husband and dragged  him to his house  and bolted the outer door. The scene of  occurrence thus  has changed from lane to the house of Chunni Lal.

In her First Information Report, as noticed hereinbefore, she came out of the lane and found the accused persons  assaulting the deceased. In her statement before the Court she stated  that she had tried to open  the door and having not been able to do so, she  purported to see the incident  from Bada.  In her statement before the Court she  disclosed that  the incident took place inside the house of Chunni Lal where all the six accused persons were present and they had been assaulting her husband but it was for the first time in her evidence she stated that her son was on her lap  and despite the same she was assaulted on her stomach  but no injury was found.

The defence has been able to bring on records  vital omissions and contradictions in  her  statement made before the Police and her statement before the  Court  but  we  need   not   go   into    the   details thereof.  Suffice, it to say that accordingly to the defence the deceased had committed many thefts. He was accused of stealing buffalos of somebody in the previous night and only on such suspicion he had been assaulted. In view of the contradictions  and inconsistencies  in  the  depositions of the Ganeshi Bai- PW.1, we are of the opinion that the  learned trial Court as also the High Court committed a manifest error in relying upon her testimony as an eye witness.

So far as Kallu- P.W.3 is concerned, he was not named  as a witness in the First Information Report, but the same in itself may not be of much significance. But what is important is that in his evidence he categorically stated that the investigating  officer had called  him  to the Police Station  once five days  after the incident and the second time 10-11 days after the incident. He was called for the third time  1+  month after the incident. Girish Bohre-the Investigating Officer  P.W.9 in his deposition denied that P.W.-3 was called for the first two times. According to  the said  witness the evidence of P.W.-3 was recorded for the first time after 1+ months.

It is expected that in a case involving death of a person, the investigating officer would have visited the place of  occurrence immediately.  If  that  be  so, it is also expected that the statements of witnesses who were present would be recorded.

We fail to see any reason whatsoever as to why the statement of P.W.-3 was no recorded on the date of occurrence and in any event within a reasonable time. If Kallu-P.W.-3 is to be believed he was in constant touch with the investigating officer. If that be so, it betrays all reasons as to why he was examined after only six weeks.

It is not possible for us to arrive at a definite finding by taking aid of Section 34 of the Indian Penal Code that  appellants herein could be convicted for commission of an offence  under  Section 304(II) but having regard to the fact that both P.W 1 and P.W.3 had made common  allegations against all the accused persons, and as despite the same, accused Nos. 5 and 6 were acquitted by the learned  trial Court and accused Nos. 2 and 4 were acquitted by the High  Court, we are not in a position to do so. Accused Nos. 5 and 6 were not named in the First  Information report at all.  Accused Nos. 2 and 4 were not named by P.W.3. If P.W.3 watched the

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entire incident from a close distance, as he claims to be; we fail to reason as to  why no  overt  act was attributed by him so far as accused nos. 2 and 4 are concerned.

We for the reasons  stated aforementioned feel that benefit of doubt should be given to the appellants. The appeal is allowed accordingly. The appellants are on bail. Their bail bonds shall stand discharged.