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CASE NO.: Appeal (crl.)  743-744 of 2002

PETITIONER: State of Madhya Pradesh

RESPONDENT: Chamru @ Bhagwandas etc.etc

DATE OF JUDGMENT: 19/06/2007

BENCH: Dr. ARIJIT PASAYAT & D.K. JAIN

JUDGMENT: J U D G M E N T

Dr. ARIJIT PASAYAT, J. 1.      Challenge in these appeals is to the judgment rendered  by a Division Bench of the Madhya Pradesh High Court,  Jabalpur directing acquittal of the respondents.  The Trial  Court had found the accused Chamru guilty of offences  punishable under Sections 302, 307 and 324 of the Indian  Penal Code, 1860 (in short ‘the IPC’). He was awarded death  penalty for the quadruple murders.  Accused Geetabai was  awarded life imprisonment for offence punishable  under  Section 302 read with Section 34 IPC along with sentence of  fine.  They were both sentenced to ten years’ rigorous  imprisonment and three years’ rigorous imprisonment on the  other two heads of charge along with various sums of fine.   Both accused challenged their conviction and sentence and  filed appeals.  The Trial Court made a reference to Section 366  of the Criminal Procedure Code, 1973 (in short ‘the Code’) for  confirmation of the death sentence.  The High Court found the  prosecution version to be not cogent and credible and directed  acquittal.  It may be noted that there was a gruesome murder  of four persons.  Two of them were minors.  Though the High  Court was conscious of this fact, yet, it found the evidence of  the witnesses to be not credible and cogent and, patently  unreliable and, therefore, directed acquittal.

2.      The prosecution version in a nutshell is as follows:          Sometime prior to this incident, deceased Ramkishan  and his wife deceased Anita were given three acres of land by  the latter’s father Sevaklal (PW-5).  Since then Ramkishan  lived in the farmhouse along with his wife and four minor  children, namely, eldest son Kapil, aged about 12 years,  daughter Keerti, Son Bantu and the youngest child Preeti,  aged about 7 years. This land was earlier cultivated by  Gendalal, the father-in-law of Sevaklal (P.W.5) and after the  death of Gendalal, his sons Mangdu and his wife accused  Geetabai continued in possession. These fields were later  taken back from Mangdu by Sevaklal and out of it, 3 acres  were given to his daughter deceased Anita and one acre was  given to Gendalal’s widow, who sold it off for her daughter’s  marriage.  This had enraged Geetabai and her husband who  used to abuse Anita and her husband Ramkishan. After her  husband’s death Geetabai had developed friendly relations  with accused Chamru, and the two of them perpetrated this  dastardly crime in furtherance of their common intention. 3.      Both accused Chamru and Geetabai went to the house of  Ramkishan at the dead of night and Chamru hacked

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Ramkishan, his wife and children one by one while they were  sleeping in their courtyard. Two of the children namely, Keerti  (P.W.3) and Bantu (P.W.7) were badly injured, but they could  be saved after prolonged hospitalisation.  These two children,  and Ramkishan’s niece Indu Patel (PW-8) who was on a visit to  his place, are said to have witnessed the crime.

4.      The first information report (Ex.P-4) was lodged next  morning by village Patel Bhupatsingh (P.W.2).  This set the  investigation in motion.  Dr. A.K. Yadu (P.W.9) performed the  autopsy and Ex.P/17-A to Ex.P-20-A are the postmortem  reports. He testified that all these persons died a homicidal  death.

5.      On completion of investigation, charge-sheet was filed  and the accused faced trial.  The Trial Court placed reliance on  the identification made by Keerti, PW-3, Bantu, PW-7 and  Indu, PW-8 for the purpose of recording conviction.  All the  three were child witnesses. It was claimed by the prosecution  at the Test Identification Parade (in short ‘the T.I. Parade’) that  they had identified the accused Chamru. Finding their  evidence to be cogent and credible, the Trial Court recorded  the conviction and sentenced the accused, as noted above.

6.      In support of the appeal before the High Court, it was  highlighted by learned counsel appearing for the accused  persons that the Test Identification Parade was nothing but a  farce.  The accused was shown to the witnesses  before the T.I.  Parade and this was accepted by the witnesses.  Additionally,  the evidence of PW-3 was not worthy of acceptance  because of  apparent contradictions.  Learned counsel for the State  supported the conviction and stated that when four persons,  including two children have lost their lives, such technicalities  should not stand on the way of convicting them.

7.      The High Court considered the evidence and noted that  the accused was not a stranger to the children.  In fact, they  admitted that he had worked at their father’s  house in  connection with the construction of a room.  They also  admitted that they had known him as "Pathar Fodne Wala".   In spite of this, there was no mention about identity of the  accused in the statements made during investigation.  In  addition, if they knew the accused, there was no question of  any Test Identification Parade. The High Court recorded the  following findings after analyzing the evidence:

       "We have carefully gone through the  evidence and documents on record and we  must say that the arguments advanced by the  learned defence counsel cannot be said to be  without substance.  We accept the evidence of  Indu (P.W.8) that she had dodged the assailant  and somehow escaped into the kitchen.  We  are also prepared to accept her testimony that  she had dodged the assailant and somehow  escaped into the kitchen.  We are also  prepared to accept her testimony that she had  seen the assault from her place of hiding.  But  that she had recognised the assailant to be  this accused Chamru is a difficult pill to  swallow.  There is much force in the argument  that if she had really recognized the accused  that night, she would not have hesitated in  disclosing it to the villagers and to the police  when they arrived on the scene.  She would

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not have told the village Patel that some  stranger had attacked these people.

       The same criticism applies to Keerti  (P.W.3)and Bantu (P.W.7).  Bantu in fact was  assaulted while he was asleep.  He admitted  this in para 11 of his cross examination.  He  woke up after the blow on his neck, but  pretended to be asleep even after the attack on  him.  He must have been taken as dead to  have been spared by the assailant after a  single blow.  Bantu was a child aged about 7  years.  He must have been       too dazed and  frightened to be able to understand what was  happening.  It appears to us to be highly  unlikely that he recognized the person who  was hacking his near and dear ones one after  the other.  We are unable to accept his claim  that he had recognized Chamru that night.   Had this been true, he would have told the  Village Patel and others that the "Pathar Fodne  Wala" had committed the crime.  The fact that  he did not do so goes to show that he could  not recognize the assailant that night.

       This significant omission appears in the  statement Ex.D.3 made by Keerti (P.W.3) also  before the Police.  She says that accused  Chamru was very well known to her by face  whom she knew as the "Pathar Fodne Wala"  who had worked for her father.  Then what  prevented her from disclosing his identity to  the witnesses and the police when they arrived  on the spot?

       We also agree with the contention of the  learned defence counsel that the identification  proceedings held by S.D.M. Shri Patel (P.W.1)  were only a farce.  Both Bantu (P.W.7) and  Indu (P.W.8) admitted in cross-examination  that the Police had shown them the  photograph of Chamru.  This would render the  entire proceedings as useless.  And conviction  cannot be based on such evidence". 8.      Though it was pointed out by the prosecution that there  were blood stains on the clothes, the High Court found that  they were so small that they were not found sufficient in  relation to Serological examination.   The High Court noted  with anguish that there was cold blooded murder of four  persons including two children; but the deficient manner in  which the investigation was carried out, left much to be  desired.

9.      In support of the appeal, learned counsel for the  appellant-State submitted that the approach of the High Court  was erroneous.  Merely because the child witnesses, who were  over-powered by the grief of seeing four murders before their  own eyes,  made omission to state the name of the assailants  that should not have been treated as vital. Defective  investigation cannot be a ground to discard credible evidence.   

10.     We find that it is not merely a case of non-mention of the  names. Undisputedly, the photographs of accused Chamru  were shown to two of the child witnesses before the Test  Identification Parade.  That took away the effect of the Test

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Identification Parade. Learned counsel for the appellant has  referred to the evidence of PW-3 to contend that the she was  not shown the photographs. Even a bare perusal of her  evidence in court shows that she was not a credible witness  and was tutored. She has categorically stated that she knew  the accused by name. As noted above, her evidence also shows  that she was tutored. For example, the voltage of the bulb   which was supposed to be lighted at a distance of about 200  yards  was stated to have been seen by her.  Most of her  statements in court were exaggerations and embellishments.   Secondly, most of the vital facts were not stated during  investigation.

11.     It is of significance to note that in her evidence, she  stated that Indu, PW-8 was also assaulted by the assailants.   This is clearly contrary to the prosecution version.  All other  witnesses, who claimed to be eye-witnesses, have categorically  stated that PW-8 had managed to go away and had seen the  occurrence from behind the screen.  That was also the version  of Indu (PW-8). That being so, the version of PW-3 that she  was also attacked, is clearly a vulnerable point so far as the  prosecution case is concerned.

12.     In the ultimate analysis, the judgment of the acquittal  passed by the High Court does not suffer from any infirmity to  warrant interference.  The appeals are, accordingly, dismissed.