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PETITIONER: SUNIL KUMAR & ORS.

       Vs.

RESPONDENT: STATE OF MADHYA PRADESH.

DATE OF JUDGMENT:       28/01/1997

BENCH: M.K. MUKHERJEE, B.N. KIRPAL

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T M.K. MUKHERJEE      This appeal  under Section  379 of the code of criminal procedure is  directed against  the judgment and order dated September 12,  1985 of  the Madhya  Pradesh  High  Court  in Criminal Appeal  no. 1217  of 1982  whereby it set aside the acquittal of  the five  appellants  of  the  offences  under Sections 147,  302/149 and  307/149 of the Indian Penal Code recorded in  their favour  by the Additional Sessions Judge, Narsinghpur and convicted them thereunder.      The appellants Sunil Kumar and his father Hargovind are residents of  village Chichli  within the  Police  State  of Gotetoriya in  the District  of Narsinghpur where they own a rolling mill and the other three appellants are their casual employees. The  deceased Dayashankar  and his brother Ramesh Chandra (P.W.I.)  also hailed from the same village and they earned their living from cultivation.      According  to   the  prosecution   case  the  appellant Hargovind was  trying to  frocibly take over the land of the deceased and  P.W.I. and  threatening them that he would cut their hands  and legs.  Sometime before  the  incident  with which we  are concerned  in this  appeal the cattle of Sunil Kumar and  Hargovind had  damaged the  standing crops of the deceased and  P.W.I. When  P.W.I. protested a quarrel ensued in course  of which  he was beaten up with shes by Hargovind and appellant  Rafu &  Rafiq. On  January 15, 1981 Hargovind and appellant  Rafu made an attempt to kill the deceased and P.W.I  but   failed.  Over  that  incident  P.W.I  lodged  a complaint with  police station.  Again on May 30, 1981 P.W.I found that Hargovind had brought the other three appellants, who were  all residents  of Uttar  Pradesh, to their village and apprehending  that Hargovind  might get them killed, the two  brothers   lodged   a   written   report   before   the Superintendent of  Police,  Narsinghpur  on  June  13,  1981 (Ext.P.I.) seeking protection of their lives and properties. The police however turned a Bear bar to their complaints.      The further  prosecution case  is that on July 30, 1981 at or  about 9  A.M. the  deceased and  P.W.I went  to their field for measuring the work done by their labourers as that was the  day for payment to them. After the measurements, at

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or about  10.30 A.M.  when they were returning home to fetch money for  payment to  those laborers  and on  the  way  had reached the lane in between the fields of Chhotelal Sahu and Dalchand the  five appellants  came from  behind.  Of  them, Sunil Kumar  and Suresh  were carrying  lathis, Hargovind  a hockey stick  and Nazim and Rafiq axes. Hargovind first gave a lathi  blow on  the  head  of  P.W.I  and  he  fell  down. Thereafter  Rafu  and  Nazim  hacked  him  with  their  axes severing his  left arm  and left  foot.  All  or  them  then attacked the  deceased with  their respective  weapons in  a similar fashion severing his right hand and right foot. Then they fled away.      On hearing  the cries of the victime, the laborers, who were working  in the  field of  P.W.I came  to the  spot and seeing their  condition rushed  to  their  house  to  inform Imratibai (P.W.2),  mother of  P.W.I and  the  deceased.  On getting the  information P.W.2 hurried to the spot and heard about the  incident  from  P.W.I  Dayashankar  had,  in  the meantime, succumbed to his injuries. Yogendra kumar (P.W.3), a nephew  of the  deceased and  P.W.I and some others of the village also  roached there  and to them also P.W.1 narrated the incident.  P.W.3 then  rushed for  medical held  but the doctors expressed  their  unwillingness  to  attend  to  the victims on  the plea that as it was a medico legal case they could not  do so  without requisition from the police. P.W.3 then went  to the  village  Post  Office  and  reported  the incident to the police over telephone.      On  getting   the  information  inspector  V.K.  Saxena (P.W.6) came  to the site of the incident accompanied by Sub Inspector  Mithilesh   Tiwari  (PW   8)  and   other  police personnel. Reaching there he recorded the complaint of P.W.1 (Ext. P.2) and after forwarding it to the police station for registering  a   case  thereupon  sent  P.W.1  to  Gadarwara Hospital for  treatment. He  then held inquest upon the dead body  of  Dayashankar  and  despatched  it  for  post-mortem examination. From  the spot  he seized  the severed limbs of the two  victims, some  blood stained  earth and  the  metal portion and  the  handle  of  an  axe  in  presence  of  the witnesses.      Dr.  P.K.  Budhisagar  (P.W.  13),  Asstt.  Surgeon  of Gadarwara Hospital, examined P.W.1 and finding his condition critical sent an information to the police for recording his dying declaration.  On receipt  of such  message the  police requisitioned the  services of the local magistrate who came to the hospital and recorded his statement (Ext.D.2).      S.I.  A.K.   Bhandari  (P.W.12),   who  took   up   the investigation of the case from P.W.6 arrested the appellants and pursuant  to their  respective statements seized a lathi and bush  shirt which  were blood  stained from  Nazim,  one blood stained  axe from  the house  of Hargovind,  a  hockey stick and  a Hungi,  both blood  stained, from Suresh, blood stained Kurta  and paijama  from Hargovind and blood stained trousers, bush-shirt and baniyan from Sunil. P.W.12 prepared separate sealed  packets in  respect of  those articles  and went  them   to  forensic  Science  Laboratory  (F.S.L)  for chemical examination. After receipt of the reports of F.S.L. and of  the autopsy  held on the dead body of Dayashankar by Dr. Dhan  Singh (P.W.4),  and on completion or investigation he submitted charge-sheet against the five appellants.      The appellants  pleaded not  quilty to  the charged and stated that  they were  falsely  implicated.  The  appellant Rafiq took  a plea  of  alibi  also.  In  support  of  their respective cases the prosecution examined thirteen witnesses and defence one.      That Dayashankar  (deceased) was  brutally murdered and

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P.W.I  was   mercilessly  beaten   up,   stand   proved   by overwhelming  evidence  on  record,  Inspector  V.K.  Saxena (P.W.6) testified  that when  he reached  the  site  of  the incident the  found  the  dead  body  of  Dayashankar  in  a bullock-cart and  Ramesh (P.W.1) lying on the ground nearby, with both  of them  having one   of  their  legs  and  hands amputated.  Under   his  directions  S.I.  Mithilesh  Tiwari (P.W.8) seized  those severed  parts, besides other articles found there P.W.6. Dr. Dhan  Singh (P.W.4), who held autopsy on the  dead body  of Dayashankar   on July 31, 1981, stated that he found the following injuries on his person:      "1. Lecerated  would 1"  * 1/2 bone      deep in the right parieto occipital      region;      2. Lacerated  wound  3/4"*  1/3"  *      1/3" on the parietal region;      3. Incished  wound 3" * 1/2" * bone      deep just left of the med line;      4. Lacerated wound 2" * 1/2" * bone      deep on  the  frontal  region  just      right of mid line;      5. Bruise 2 1/2"* 1/2" just lateral      of right  eye brow with swelling in      right temple 4" * 3";      6. Abrasion  1 1/4" * 1/2" over the      right shoulder;      7. Abrasion  1/2" *  1/2" on top of      the right shoulder;      8. Bruise  4 1/2"  * 1/2"  on  left      forearm, close to olbow joint;      9.  Incised   would  cutting  whole      thickness  of   the  right  forearm      separating the  hand from  rest  of      the body.  Ulna and  radius cut  in      one   plane  slightly  oblique-just      above the wrist joint;      10. Bruise  3" *  2" on  the  right      thigh;      11.  Incised  wound  involving  the      whole thickness  of the  right  leg      just above  ankle joint  with  skin      flap cut  in  different  directions      suggesting more that one blows with      sharp weighty object - chopping the      right foot  off from  rest  of  the      body. fibia and fibula bones cut in      two different planes; and      12. Incised  wound 1  3/4" *  1"  *      bone deep  on  anterior  aspect  of      left leg  3" above the ankle joint.      Tibia cut 1/3rd deep".      He opined  that all  the injuries  were antemortem  and injury Nos.  1,2,4,5,6,7,8 and  10 were  caused by  hard and blunt object while injuries no. 3,9,11 and 12 were caused by sharp and  heavy object.  According to  P.W.4  injuries  No. 3,4,5,9 and 11 were individually and collectively sufficient to cause  death. He  further opined  that the incised wounds seen by  him could  be caused  by a  heavy sharp object like axe.      Dr. P.K.  Budhisagar (P.W.  13) who  examined P.W. 1 on July      30,1981 at or about 5 P.M. testified that he found the following injuries on his person:      "1. Lacerated wound 3" 1/2" * bone      deep over scalp, 3" behind mastoid;      2. Lacerated  wound 1" * 1/4"* bone

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    deep, 1 1/2" above injury No.1;      3. Lacerated  wound 2" * 1/4 * bone      deep on  the left  side of  midline      and 1" above injury No.1;      4. Lacerated  wound  2"*1/4"*  bone      deep on  mid line  1" above  injury      No.3;      5. Lacerated  wound 2"*1/4  *  bone      deep 1 1/2" above injury No. 4;      6. Lacerated wound 4" x 1/4" x bone      deep over  mid  line  joining  both      traqus of the ears;      7. Lacerated wound 4" x 1/4" x bone      deep, 1 1/2" above injury No.6;      8. Left  arm fully cut, below elbow      muscles, nerves bone cut in oblique      line form lateral to medial side;      9. left leg cut at ankle joint lean      cut 13"  below  tibial  tuberosity;      oblique medical  to  lateral  side.      Tibial fibula and a tendons cut;      10. Incised  wound 1  1/2" x 1/2" x      1/2" x  4" above right wrist on the      antero lateral aspect;      11. Incised  wound 2"  x 1"  x bone      deep 1" above right wrist. Bone cut      in the  depth of  wound. Gap  is 3"      deep including bone thickness;      12. Incised wound 3" x 2" x 2" x 2"      above injury  No. 11 muscle tendons      cut and bone fractured; and      13. Incised wound 2" x 1 1/2" x 2",      1 1/2"  above injury No. 12, muscle      cut and bone fractured."      He opined  that the  injuries found by him on the right arm, left  log and left arm were caused by a heavy and sharp instrument like  axe and wounds on scalp were caused by hard and blunt  object like  hockey stick. He further opined that all the injuries collectively were sufficient to cause death if the patient was not treated in time.      Considering the  nature, number  and extent or injuries inflicted on Dayashankar (deceased) and Ramesh (P.W.1) there cannot be  any manner  of doubt  that whoever  caused  those injuries are guilty of the offences or committing murder and attempting to  commit  murder  respectively.  The  next  and crucial question that falls for our determination is whether the appellants  are the  authors  of  the  above  crimes  as alleged by the prosecution.      The main  stay of the prosecution to prove this part of its  case is,  needless to say, Ramesh (P.W.1), who detailed the incident  as well  as the  events  leading  thereto.  To corroborate his  evidence the  prosecution relied  upon  the fact that  immediately after  the assaults  took  place,  he narrated the  incident to  his mother  (P.W.2),  and  nephew (P.W.3) who reached there. Besides, his statements, one made before Sh.  V.K. Saxena,  Inspector of Police (P.W.6), which was treated as the F.I.R (Ext. P.2) and the other before the Magistrate, (Ext.  D/2), which  was then recorded as a dying declaration  were  pressed  into  service  as  corroborative evidence. To  prove that the ocular evidence of P.W.1 fitted in the  with the  injuries sustained  by him and his brother the  prosecution   examined  the  two  doctors  referred  to earlier.      From the  judgment of  the trial Court we find that the principal reason which weighed which it for disbelieving the

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prosecution case altogether was the fact that in the message that Yogendra  (P.W.3) gave  to  the  police  regarding  the incident, after  having been  apprised of  the same by P.W.1 and which  was recorded  by the  police in the station diary book  (Ex.P.17),  he  did  no  disclose  the  names  of  the assailant. According  to the trial Court if really P.W.I had disclosed the  names of  the  assailants  to  P.W.J  it  was expected, in  the fitness  of things, that he would disclose those names  in his  telephonic message  to the police. Such non disclose  of the  names according  to the  trial  Court, completely belied  the prosecution story that the appellants were the  perpetrators of  the crimes in question. The other related observation  the trial Court made was that since the telephone  message   disclosed  a   cognizable  offence  and pursuant thereto the police had come to the spot and started investigation, the  statement that  was made by P.W.I before the inspector  of police  (P.W.6) was  hit  by  Section  162 Cr.P.C. and  consequently, the  prosecution’s claim that the evidence of  P.W.I was  corroborated by  the said statement, being the  FIR, could  not be  legally entertained.  Another reason which  weighed with  the trial  Court in disbelieving the prosecution  case  was  that  it  did  not  examine  any labourers or  any other  person who  were working  the field near the  site of  the incident  to prove  the incident  and instead  thereof  relied  upon  the  evidence  of  only  two interested witnesses, namely, P.W.I was  also discrepant.      In reversing  the judgment of the trial Court, the High Court held  that  the  findings  to  the  trial  Court  were perverse and  against the  evidence on  record. According to the High  Court the  cryptic message that was given by P.W.3 over telephone is the police could not be treated as F.I.R., more  particularly,   when  he   testified  that   owing  to disturbance in  the telephone line he could not disclose the details of  the incident;  and the  statement given by P.W.I before P.W.  (Ext. P.2)  was the F.I.R of the case. The High Court next  observed that there was no evidence on record to indicate that  at the  time the incident actually took place anybody was present so as to entitle the trial Court to draw an adverse presumption against the prosecution under Section 114  (illustration   ‘q’)  of   the  Evidence  Act  for  non examination of  material witnesses.  The High  Court  lastly observed that  the evidence  of P.W.I,  as  corroborated  by P.W.2 and  P.W.3, who came immediately after the occurrence, the F.I.R.  and the medical evidence clearly proved the case of the prosecution.  In drawing  the above  conclusions  the High Court  also took  note of the fact that only a few days prior to  the incident  the deceased  and his brother had in their complaint  before  the  police  (Ex.P1)  categorically expressed their apprehension that their lives and properties were in  jeopardy as  these accused persons had openly given out that they would kill them after cutting them to pieces.      This being  a statutory  appeal we  have carefully gone through the  entire evidence  on record had the judgments of the learned  Courts below. Our such exercise persuades us to unhesitatingly hold that the finding of the trial Court that the evidence  of P.W.I  is  wholly  unreliable  is  patently perverse. Considering  the fact  that except the two victims (P.W.I and  the deceased)  there was  nobody else present at the time the assaults actually took place as the evidence on record clearly  indicates  there  could  not  be  any  other witness to  the incident.  The question of presumption under Section 114 of the Evidence Act could have been drawn in the instant case  only if  the defence  could have  succeeded in proving that  there were  other persons present and had seen the incident  and inspite  thereof the  prosecution, without

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any justifiable  reason, withheld such witnesses. Coming now to the evidence led be the prosecution to corroborate P.W.I. who detailed the entire prosecution case, Imarti Bai (P.W.2) stated that  on getting  the news that Dayashankar was lying dead and Ramesh injured she rushed to the place and gave him some water  as he  was asking  for the  same. When she asked Ramesh as to how he sustained those injuries and Dayashankar died, he  (P.W.I) detailed the entire incident including the names of  the appellants  as the assailants. The evidence of P.W.2 was  disbelieved by the trial Court on the ground that she was  examined by the Investigating Officer after one and a half  months. This  fact by  itself should  not, and could not, have  been made a ground for disbelieving her for it is expected of a mother who gets information about the assaults on his  sons to immediately rush to their help and ascertain the details  of the  assault. Judged in that context, if the Investigating Officer  did  not  examine  P.W.2  immediately after the  incident it  can only  be  said  that  it  was  a dereliction  of   duty  on   his  part;   but  such  delayed examination by  itself would  not make the evidence of P.W.2 suspect, particularly  when she  was a  natural and probable witness and  was readily  available for  examination by  the investigating Agency.      Equally important  in the  instant case is the evidence of P.W.3,  who testified  that when  he came to the spot and talked to Ramesh who was lying injured he told him about the incident as  also the  names of  the assailants.  As already noticed it  was P.W.3  who gave  information to  the  police about the  incident over telephone. In his testimony he said that when  he contacted  the police from the sub post office over telephone  he get  a reply  that they  could  not  been properly. However  he could  succeed only  in  communicating that there  was a  fight in  which hands  and  legs  of  two persons were  cut. In  cross examination he admitted that he did not  toll the  names of  the accused persons over phone; but  explained   that  owing  to  some  disturbance  on  the telephone  line   he  could  not  properly  communicate.  To disprove the above explanation of P.W.3 the defence examined Harishankar Dubey  (D.W.1), the then Assistant Postmaster of the sub  post office.  He testified that on July 13, 1981 on Yogendra came  to the  post office  and asked  him to book a telephone call  to Gotetoriya  Police  Station.  He  (D.W.1) asked him  as to  why he wanted to book a phone and in reply to its  query told  that he  wanted to give a message that a person was  murdered and  another seriously injured. When he asked him  as to  who were  the assailant  Yogendra told him that he  did not  know their  names. Relying  upon the above evidence of  D.W.1 the trial Court held that the prosecution version that the appellants were the assailants could not be accepted. In  disbelieving D.W.1  the High  Court,  however, pointed out that he figured as a witness for the prosecution and only  when he  was given  up as  hostile to it, that the defence examined  him. According  to  the  High  Court  even though in  his examination  in chief he stated that he could hear all that was being conveyed by Yogendra over telephone, in cross-examination  he admitted  that he  could  not  hear anything. Besides  the above grounds, the other reason which persuades us  to hold that he was an unreliable witness is , that it  being no  part of  his duty  to ascertain why P.W.3 wanted to  book a  call or what message he wanted to convey, his claim  that he was present at the time P.W.3 talked over the phone  is not  tenable. We hasten to add that even if we proceed on the assumption that Yogendra did not disclose the names of  the assailants  over the phone it would not in any way affect  the testimony  of P.W.1 of corroboration or such

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testimony by  P.W.3, for  P.W.1  not  only  stated  that  he disclosed the names of the assailant to P.W.3 but P.W.3 also asserted that  P.W.1 did tell the names of the assailants to him. In  other words,  the evidence  of P.W.1  that  at  the earliest  opportunity   he  disclosed   the  names   of  the appellants as  his assailants  to P.W.3  was corroborated by P.W.3.      While on this point we wish to mention however that the High Court  erred in not treating the telephonic information that P.W.3  gave to  the police  station as the F.I.R. It is not disputed  that P.W.3  did give  an  information  to  the police station  wherein he  stated that  one person had been killed and  another person  had been  dismembered and it was recorded accordingly  in the daily diary book (Ex.P/17). The same entry  discloses, notwithstanding  the absence  of  the names of  the assailants  therein, a  cognizable offence  an indeed it  is on  the basis  thereof  that  P.W.6  initially started their  investigation. Ext.P/17 will therefore be the F.I.R and  the  statement  of  Ramesh  (Ext.P.2)  which  was recorded by him in course of the investigation is to treated as one recorded under Section 161 Cr.P.C. This conclusion of ours, however,  does not in any way affect the merits of the prosecution case  for we  find that  immediately after P.W.1 was taken  to the  hospital his  statement was recorded by a recorded as  a dying  declaration which, consequent upon his survival, is  to be  treated only  as a  statement  recorded under Section  164 Cr.P.C. and can be used for corroboration or contradiction.  This statement recorded by the Magistrate at the  earliest available opportunity clearly discloses the substratum of  the prosecution  case including  the names of the appellants as the assailants and there is not an iota of materials on  record to show that this was the upshot of his tutoring. On  the contrary,  this statement  was made  at  a point of  time when P.W.1 was in a critical condition and it is difficult  to believe that he would falsely implicate the appellants leaving  aside the  real culprits. In view of the observation  of  the  trial  Court  that  his  evidence  was discrepant we  carefully looked into the same and found that there was  only some  minor  inconsequential  contradictions which did  not at  all impair  his evidence.  Then again, as already noticed,  the evidence of the doctors fully supports his version  of the  incident. Another related aspect of the matter is  the lodging  of the  complaint by  P.W.I and  his brother before  the Superintendent of Police (Ex.P.1) (which we have  earlier referred to) wherein they sought for police action against  the threat  meted out  by the appellant that they would  cut them  to pieces  a threat which was brutally (and literally) translated into action.      As from  the evidence  on record  we are satisfied that the appellants  committed rioting and in course thereof they killed Dayashankar  and attempted  to kill  Ramesh we uphold the judgment  of the  High Court and dismiss the appeal. The appellant, who  are on  bail, shall  now surrender  to their bail bounds  to serve  out the sentence imposed upon them by the High Court.