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CASE NO.: Appeal (crl.)  624 of 1998

PETITIONER: Ramsewak & Ors.  

RESPONDENT: State of M.P.

DATE OF JUDGMENT: 13/04/2004

BENCH: N Santosh Hegde & B P Singh.

JUDGMENT: J U D G M E N T

SANTOSH HEGDE, J.

       The appellants herein, who are 6 in number, and 6 others  were accused of having caused the death of one Preetam Singh on  15.7.1980 at about 12.30 p.m. in village Bhadera which incident  according to the prosecution, was witnessed by Babu Lal PW-1  and his father Man Singh PW-2 along with Karan Singh PW-6.  PW-2 was the elder brother of deceased Preetam Singh, PW-1  was his nephew while PW-6 Karan Singh was the uncle of the  deceased. Prosecution alleged that all the accused persons  including the appellants herein had enmity with the deceased on  different grounds, hence on the date of the incident they formed  themselves into an unlawful assembly being armed with deadly  weapons like gun, farsa, lathi, barchhi, axe etc. and attacked the  deceased while he was grazing his cattle in a field at village  Bhadera, causing him multiple injuries consequent to which he  died. It is the further case of the prosecution that PW-1 who  witnessed the incident then went to the Police Station which was  situated about 3 kms. away from the place of incident, and lodged  a complaint which was registered as FIR Ex. P-1. Based on the  said complaint, the Police initiated investigation and came to the  spot of the incident and Ex. P-2, an inquest report was prepared  and the body was sent for post mortem examination. PW-9 the  doctor who conducted the post mortem examination on the dead  body found 7 external injuries on the body out of which injury  Nos.5 and 7 were bruises while injuries 1 to 4 and 6 were incised  wounds; one such wound caused the left hand of the deceased to  severe from the joint of the wrist while consequent to the other  injuries the deceased suffered cut wounds on the right hand and  on the left side of the head. The doctor had opined that the  injuries were ante mortem and the deceased had died due to  shock resulting from the injuries suffered on the head and  haemorrhage resulting from other injuries.         Out of the 12 accused only 11 accused were sent up for trial  before the IIIrd Additional Sessions Judge, Bhind, including the  appellants herein while the 12th accused according to the  prosecution, had absconded but came to be arrested subsequently  and his trial was separated and was found not guilty hence was  acquitted in the said separate trial which acquittal has become  final.           The trial court after examining the prosecution evidence  came to the conclusion that the presence of PWs.1 and 2 at the  place of incident was doubtful and PW-5 not having supported  the prosecution case and noticing the contradiction between the  ocular evidence of PWs.1 and 2 and the medical evidence came  to the conclusion that the prosecution had not established its case

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against the accused, and consequently acquitted all the 11  accused who were tried by the said court.         In an appeal filed against the said judgment of acquittal by  the State before the High Court of Madhya Pradesh, Gwalior  Bench, the High Court accepting the evidence of PWs.1 and 2  partly allowed the appeal and while setting aside the acquittal of  A-1 Ram Sewak, A-4 Ranveer Singh, A-7 Mullu, A-8 Narayan  Singh, A-9 Mizaji Lal, A-10 Ram Swaroop and A-11 Mewa Lal  held them guilty of offences punishable under sections 147, 302  read with section 149 and sentenced them to undergo  imprisonment for life for the offence under section 302 read with  section 149 while no separate sentence was awarded for the  offence under section 147 IPC. It however dismissed the State  appeal in regard to other accused persons.         On behalf of the appellants, it was contended that the trial  court on a proper appraisal of the evidence of PWs.1 and 2 rightly  came to the conclusion that their presence at the time of the  incident was highly doubtful hence they could not have witnessed  the incident and because of prior enmity, these accused persons  were falsely implicated in the case after due deliberation. It is  pointed out that though A-1 and A-2 are brothers, A-3 and A-10  were brothers and A-5 and A-11 were brothers, others had no  relationship with each other and none of them had any common  enmity with the deceased, therefore, the trial court justly came to  the conclusion that the prosecution had roped in all such persons  who had some sort of enmity against the deceased as accused in  this case at the instance of PWs.1 and 2. It was further contended  that the trial court also noticed the fact that the FIR in this case  had come into existence at the place of alleged incident after due  deliberations and not at the Police Station, as stated by PW-1.  Learned counsel for the appellants also contended that the  medical evidence did not tally with the ocular evidence therefore  the trial court was justified in acquitting the accused. He  contended that the High Court on the same set of facts and on re- appreciation of the evidence without properly noticing the   contradiction in the ocular evidence has erroneously convicted  the appellants.         The learned counsel for the respondent however supported  the judgment of the High Court by contending that there was no  reason why the evidence of PWs.1 and 2 should be rejected. It  was his argument that the High Court as a first court of appeal  had a duty to reconsider the evidence and correct the error  committed by the trial court.         The facts necessary for the disposal of this appeal are as  follows :         There was some dispute between the deceased and some of  the accused in regard to the lands which were allotted to the  deceased by the Government while other accused and the  deceased had some other dispute which was not common because  of which the prosecution alleges that these accused persons  together formed an unlawful assembly on 15.7.1980 and  committed the murder of deceased Preetam Singh.

       It is the prosecution case that on the fateful day Preetam  Singh had taken the cattle for grazing to village Bhadera which is  in a forest area at about 7 a.m. It is the further case of the  prosecution that at about 10 a.m. PW-1 the nephew of the  deceased took the lunch for the deceased to the field where  deceased was grazing the cattle and gave him the food. PW-1 in  the complaint states that after giving food he went to village  Itayali to call one Moti Ram Kachhi which village was about a  mile away from the place of the incident and having gone there  and having failed to meet him, he returned to Bhadera, the place  where the deceased was grazing his cattle at about 12 noon. On  his way to Bhadera, it is alleged that he saw 12 accused persons

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armed with deadly weapons walking towards the place where his  uncle was grazing the cattle which was about 100 yards from the  place from where he saw these accused persons. PW-1 then states  that on being apprehensive of the possible danger he stayed back  and hid behind a tree and noticed these accused persons attack  Preetam Singh. He in his evidence graphically describes the  nature of attack on his uncle. He stated that Bhure Singh asked  others to kill Preetam Singh then A-4 Ranveer Singh gave a farsa  blow on the head, A-6 Rajendra Singh also assaulted on the head  of Preetam Singh when the latter fell down. Bhure Singh then  pierced the left thigh of the deceased with a Barchhi, A-11  Mewalal severed  the left  hand with a farsa, A-7 Mullu Singh  gave a farsa blow  on the right hand  and all the accused persons  caused injuries to Preetam Singh with their respective weapons  and thereafter they went away towards the village, leaving behind  the dead body. After the departure of the assailants, PW-1 went  near his uncle and found him to be dead. This witness also says  that during the incident he noticed his father PW-2 Man Singh  and PW-6 Karan Singh witnessing the incident. He then states  that he went to the Police Station and lodged a written complaint  and returned to the place of incident with the Police.         PW-2 Man Singh, father of PW-1 in his evidence stated that  in the morning of 15.7.1980 he went to the temple for the darshan  of Hanumanji situated in village Dadurua and while returning to  the village from the temple  he came on a road which leads to  village Bhadera where his brother Preetam Singh was grazing the  cattle. He enquired from Preetam Singh about his having had his  lunch and thereafter he proceeded further where he met PW-6 his  uncle who was also grazing the cattle. He says that he stayed  there with PW-6 smoking a bidi. Meanwhile, he saw all the  accused persons armed with deadly weapons going towards the  place where the deceased was grazing his cattle and started  attacking the deceased. He in the course of his evidence stated  that he and PW-6 ran to the place of attack and asked the accused  persons not to beat but they did not listen. He further states that  after committing the murder the accused persons went away from  the place of incident and by that time his brother Preetam Singh  had died. He then says that at that point of time PW-1 arrived  there and when asked PW-1 told him that he being scared was  hiding behind a tree and had noticed the incident and thereafter  PW-1 went to the Police Station to lodge a complaint and  returned to the place of incident with the Inspector and some  policemen. He then stated that the Inspector then did ’likha padi’  on the spot and sent the dead body to the hospital. During the  course of his cross examination it was elicited that when he went  to the temple he did not know that his brother would be going to  Bhadera village for grazing cattle and from his village to go to the  temple there were two routes; one which would go via the field  where the deceased was grazing his cattle which was a forest area  and the other was a route going straight to Dadurua where the  temple is situated but this route does not go near the village  Bhadera. He also stated that there was bus service from his  village to Dadurua. When he was asked why he chose to come  via the place of incident particularly when he had taken a  different route to go to the temple, he had no specific answer for  the same except saying that he chose to come that way.            PW-6, the uncle of PW-2 and the deceased did not support  the prosecution case at all and denied that he ever witnessed the  incident or that he met PW-2 at the time of the alleged incident.  Therefore, the prosecution case primarily rests on the evidence of  PWs.1 and 2. The trial court in its judgment held that PWs.1 and  2 were chance witnesses because it was not normal for either of  them to be present at the time and place of the incident. It also  noticed the fact that according to the medical evidence the  deceased had suffered 7 external injuries out of which two were

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bruises. While according to the evidence of PWs.1 and 2 all the  accused persons had assaulted the deceased with deadly weapons.  Thus, it found contradiction between the ocular evidence and the  medical evidence which according to it makes the ocular  evidence of PWs.1 and 2 suspect. The court also noticed the fact  that one of the weapons carried by the accused was a licensed gun  which was loaded but was found not to have been discharged as  also there was no corresponding gunshot injury on the body of  the deceased, still the two eye witnesses had stated before the  court that each of the accused had assaulted the deceased with the  weapon carried by them. The trial court also noticed the  contradictions in the evidence of PWs.1 and 2 and further noticed  the fact that PW-1 in his cross examination had specifically  admitted that his complaint was recorded by the investigating  officer at the place of incident, thus, it came to the conclusion that  the FIR was not recorded at the Police Station but the same was  recorded at the place where the dead body was found. The trial  court on an overall appreciation of the facts and circumstances of  the case, came to the conclusion that it is not safe to place  reliance on the evidence of PWs.1 and 2 who were otherwise  closely related to the deceased hence, acquitted all the accused  persons.         The High Court in appeal however, came to the conclusion  that the discrepancies found in the evidence of PWs.1 and 2 are  not material discrepancies as also the difference in the medical  evidence and the oral evidence of PWs.1 and 2 was not so much  at variance so as to reject the oral evidence of PWs.1 and 2. It  came to the conclusion that there is no surprise in PW-2 taking a  different route than the one taken by him while going to the  temple and placing reliance on the evidence of PWs.1 and 2 after  separating the grain from the chaff, convicted 6 of the appellants  while it rejected the evidence of PWs.1 and 2 in regard to five  other accused persons.         We, having heard the arguments of learned counsel for the  parties and perused the records, are inclined to agree with the  findings of the trial court rather than that of the High Court.  Though the finding of the trial court that PW-1 should be treated  as a chance witness, in our opinion, cannot be correct because it  is quite often the normal practice in the village that when a  member of the family takes the cattle for grazing, somebody else  carries the lunch for that person therefore, it cannot be said with  certainty that PW-1 was a chance witness. However, other  circumstances make us agree with the trial court that this witness  might not have seen the incident at all. It is to be noted that in the  complaint it was stated that he went to Itayali to meet Moti Ram  Kachhi, but he could not meet him hence he came back to  Bhadera. Most likely finding it difficult to convince the court the  reason why he went to Itayali and came back just in time to  witness the incident, he improved his evidence when he stated  before the court that he went to Itayali because the deceased had  asked him to go there and call Moti Ram Kachhi which was not  the case in the complaint. Be that as it may, the fact remains his  going to Itayali which accounts for the purpose of timing is not  established because said Moti Ram was never contacted nor this  part of the evidence of PW-1 is corroborated  from any other  source. This is a vital piece of link evidence which is missing  from the prosecution case and creates a doubt why PW-1 stayed  back in the grazing field for  nearly two hours after serving lunch  to his uncle. Therefore, the trial court was justified in drawing an  adverse inference in regard to the possible presence of PW-1 at  the time of the incident. Then again we notice that this witness  when he saw the accused persons heading towards his uncle,  allegedly got scared and hid behind a tree but he also says that he  had seen his father and uncle in the neighbouring field but he did  not make any attempt to join them. This is an unusual conduct

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because even according to PW-1, the accused persons did not  attempt to threaten him or his father PW-2 and uncle PW-6 even  though they intervened in the fight which makes the presence of  PWs.1 and 2 doubtful. As noticed by the trial court, we also see  that there are material contradictions between the evidence of  these witnesses and the medical evidence which also adds to the  bundle of suspicions as to the presence of this witness.           The most important factor which creates more substantial  doubt as to the prosecution case is found in the cross examination  of PW-1. According to this witness, after the accused persons  took to their heels, he went to the Police Station and lodged a  written report which is marked as Ex. P-1. It is the case of the  defence throughout that the incident in question was not  witnessed by anybody and Ex. P-1 came into existence after the  murder of the deceased came to be known and after due  deliberations a complaint involving these accused was prepared.  In this background, if we notice the answer given by PW-1, in  our opinion, it neatly fits into the defence theory. In paragraph 18  of his evidence, PW-1 states : "It is wrong that I, Udayveer Singh  and Budh Sen are of the same party. I do not remember if the  police took my signature on my report after spot inspection. It  may be but I do not remember exactly. My report was written on  the spot only. It was not raining at that time. When we took the  dead body from the spot, the sun had set and it was dark."         The learned counsel for the State of M.P., however,  contended that what was stated in the said part of the evidence of  PW-1, was referable to the inquest report and not the FIR. We  have examined the original which is in Hindi and the translation  is admittedly correct. A reading of this part of the evidence shows  that this witness was speaking about 2 reports. The first report  which he refers to must be in regard to the inquest in regard to  which he says that he does not remember if the Police took his  signatures after the spot inspection. The latter part of the evidence  certainly refers to his complaint which he in specific terms states  was written on the spot only. Even assuming that there is some  doubt as to the interpretation of this part of his evidence since the  same is not clarified by the prosecution by way of re- examination, the benefit of doubt should go to the defence which  has in specific terms taken a stand that the FIR came into being  only after the dead body was recovered. We also notice that there  is considerable doubt in regard to the place of incident also. From  the medical evidence we notice that the deceased suffered 3  major incised wounds leading to the severance of the blood  vessels and amputation of his hand near the wrist and the body in  question was lying at the spot till the Police came which was  nearly 4 to 5 hours later but still the investigating agency was  unable to find any blood on the spot. Of course, the prosecution  has given an explanation that after the incident in question it had  rained but even then it is difficult to believe even traces of blood  could not have been found on the soil inspite of the rain. The  absence of any such material also supports the prosecution case  that the incident in question might not have happened at the place  of incident. In the background of these deficiencies in the  prosecution case, we think the trial court was justified in coming  to the conclusion that the prosecution has not established its case  hence the trial court was justified in acquitting all the accused  persons. Consequently, we are of the opinion that the High Court  was not justified in taking a contrary view.            For the reasons stated above, this appeal succeeds and the  same is allowed. The conviction of the appellants is set aside. The  appellants are on bail. Their bail-bonds shall stand discharged.