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CASE NO.: Appeal (crl.)  731 of 2000

PETITIONER: Swami Prasad

RESPONDENT: State of Madhya Pradesh

DATE OF JUDGMENT: 08/03/2007

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T  

S.B. SINHA,  J :

       This appeal is directed against a judgment and order dated  24.11.1999  passed by a Division Bench of the Madhya Pradesh High Court at Jabalpur in  Criminal Appeal No. 762 of 1988 whereby and whereunder a judgment of the  learned Sessions Judge, Taikamgarh, Madhya Pradesh dated 30.12.1987 in  Sessions Trial No. 4 of 1987 acquitting the appellant from the charge of  commission of an offence punishable under Section 302 of the Indian Penal  Code, was set aside.   

       The  basic  fact of the matter is not in dispute.  One  Devakinandan  (PW-3) is the father of the appellant as also the deceased Rameshwar.   Appellant herein is his son through his first wife.  After the death of his first  wife, Devakinandan married one Binna.  The deceased and  Ram Sahay (PW- 4) were his sons and Ramsri (PW-6) was his daughter through Binna, the  second wife of Devakinandan.

       On 08.11.1986 at about 10 a.m. Paras Ram (PW-1) Devakinandan (PW- 3), Raj Kumar (PW-2) and the appellant were talking beneath a ’neem’ tree  near the house of  PW-3 as regards partition of the lands belonging to him.   Appellant herein claimed = share in the property of PW-3.  PW-3, however,  declined to give him = share stating that he had three sons and all the sons  would get equal shares.

             PW-4 Ram Sahay, (brother of the deceased) and the deceased at that  point of time were minors.  They were taking bath at a well.  PW-4 after  taking bath left for his house.  Appellant, in the meanwhile, went towards the  well with an axe in his hand.  While the deceased was taking bath, he  allegedly assaulted him by giving two or three blows with his axe on his neck  saying that ’he had done the division in two parts’.  He also gave an  exhortation that whoever would come would be killed;  upon hearing of  which, PW-1,  PW-2 and PW-3 allegedly entered their respective houses.   PW-6, Ramshri (sister of the deceased and PW-4), who was standing near her  house, heard the alarm that the appellant had killed Rameshwar, came to the  spot and found her brother lying in an injured condition.  She immediately  alarmed her brother PW-4 not to come from his house.  Appellant from the  place of occurrence went to the Police Station, Niwari.  He purported to have  made a statement before the officer in charge at the Police Station, disclosing  that Rameshwar had been killed with the axe carried by him in his hand.  At  that point of time, one Rajendra Shekhar, who was an advocate as also a  journalist was present in the Police Station.  He examined himself as PW-11.

       On the basis of the said information, the officer in charge of the Police  Station came to the spot.  PW-1 made the following statement before him :

       "I am doing agriculture in Byavata \026 Ram Sahai,  Rameswar, Swami Prasad are sons of my uncle.  Swami

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Prasad was the son of elder wife and Rameswar was the  son of younger wife.   Swami  Prasad is in possession of  half the land.  While Devaki Nandan wanted to give one- third share to Swami.    Today at about 10’ O’ clock in the  morning, Swami Prasad, Dewaki Nandan, Raj Kumar  Yadav and I were sitting under Neem Tree.  Swami Prasad  said "I am son of married lady (wife), give me half share  of the land",  Dewaki said you are three brothers".   Therefore you will get only one third share.  At that time,  Ram Sahai, Rameswar were taking bath on the well.  After  a short time, Ram Sahai went to, Swami Prasad armed with  an axe reached the well where Rameswar was bathing and  suddenly make strike with axe two three times and shouted  "see", there are two parts.  We saw dying Rameswar  thereafter Swami shouted "come" all to be killed.  Raj  Kumar, Dewaki Nandan and I ran and entered in the house.   Swami Prasad kept on waiting with axe for some time and  then moved towards Niwari.  Till now, I stayed at the  home on account of fear.  Having come there, I saw, there  were axe injuries on Rameswar’s neck and he had died.   Therefore, I lodge this report.  Investigation may be  done.,"

       A First Information Report was drawn on the basis of the said  statement.           At the trial, however, not only PW-1 but also PW-2 and PW-3 turned  hostile.  They resiled  from their earlier statements.  PW-4 was not an eye- witness.  The learned Trial Judge disbelieved the statement of PW-6, inter  alia, on the premise that she had made improvement thereupon.  A judgment  of acquittal, therefore, on the said findings,  was passed.   

       On an appeal made by the State before the High Court against the said  judgment of acquittal, however, a Division Bench of the High Court examined  the matter in details and held the appellant guilty of commission of murder of  Rameshwar and sentenced him to undergo rigorous imprisonment for life.

       Mr. Yashank P. Adhyaru, the learned Senior Counsel appearing on  behalf of the appellant, would submit that having regard to the nature of  evidences brought on records by the prosecution, the High Court must be held  to have committed a manifest error in reversing a judgment of acquittal  particularly in view of the fact that both the learned Trial Judge as also the  High Court did not rely upon the testimony of the sole eye-witness PW-6 on  the ground that she had not made any statement before the Investigating  Officer under Section 161 of the Code of Criminal Procedure, 1973 to the  effect that she had seen the appellant assaulting the deceased with an axe.

       The learned counsel would submit that even the informant PW-1 had  not made any statement before the court that he had seen the actual incident,  and he merely disclosed that he had heard an alarm and on cross-examination,  made a categorical statement that somebody had told him thereabout, but the  name of the person from whom he had known had not been disclosed.

       Our attention has further been drawn to the fact that even PW-2 refused  to claim himself to be an eye-witness.  PW-3, the father of the deceased,  categorically stated that he had not seen the incident.  He thus, was a witness  to the dispute.  According to the learned counsel PW-4 was admittedly not an  eye-witness.  Mr. Siddhartha Dave, learned counsel for the State, however,  supported the judgment of the High Court.

       The death of Rameshwar being homicidal in nature is not in dispute.   Dr. Vimal Kumar Jain, (PW-5) conducted the post-mortem examination.  He  found the following external injuries on the person of the deceased  :

               "(1)    There was incised wound 5" x 4" x 3" with

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clear cut margin on right back and lateral upper portion  of the neck.  There was clotted blood and main artery  was cut.

               (2)     There was incised wound 3" x 2" x 2" in the  back lower side of neck and in lateral portion and the  margin of the wound was clearly cut.  There was clotted  blood and blood vein cut.

               (3)     There was incised wound with clearly cut  margin 3" x 2" x 1" in the right side of back and Scapular  region and there was clotted blood."

       Death of Rameshwar, therefore, being homicidal in nature is not in  doubt.  It is also not in dispute that the incident took place at 10 a.m. on  08.11.1986.  The place of occurrence is also not in dispute.  Appellant  admittedly came to the Police Station, Niwari at about 11 a.m.  He came there  with an axe in his hand.  It was stained with blood.   He stated that a murder  had been committed by the axe which he had been holding.  The said axe was  seized by the officer in charge of the Niwari Police Station, Shri N.C. Tiwari.   

       On the basis of the said information, Shri Tiwari came to the spot and  recorded the First Information Report.

       It is true that three prosecution witnesses were declared hostile, but the  same by itself, in our considered opinion, would not lead to the conclusion  that the High Court committed any error in passing the impugned judgment.   It is well settled that a Court in a given situation even may rely on the  statements of the witnesses, who had been permitted to be cross-examined by  the prosecution.

       It may be true that the evidence of PW-6 had not been believed in its  entirety by the learned Trial Judge.  Her evidence has, however, been believed   at least in part by the High Court.  The reason for not believing her evidence is  said to be that in her statement under Section 161 Cr. P.C. before the  Investigating Officer, she had not stated to have seen the appellant assaulting  the deceased with an axe.  Her statement, however, before the police as also  before the trial court should be considered in its entirety.  It is not in dispute  that at least she had heard a cry that Rameshwar had been killed by the  appellant.  She ran to the place of occurrence.  She even before going to the  place of occurrence asked her brother not to come there.  PW-4 in his  evidence supported that part of the testimony of PW-6.  He stated :

       "By that time I finished taking bath and then I left  for my home and at that time still Rameshwar was taking  the bath at the well.  The distance between my house and  the pump is 500 ft. and as soon as I sat in my house to  take the meal, then my sister Ramshri, who was outside,  raised the alarm that Swami killed Rameshwar by giving  blow of the axe and she asked to close the gate and to  remain indoor\005"

       There are several other circumstances which, in our opinion, lead to the  conclusion that the appellant and the appellant alone is guilty of commission  of murder of Rameshwar.  The dispute in regard to the share in the property  has been proved by all the prosecution witnesses, namely, PW-1, PW-2 and  PW-3.

       PW-3 is the father of the deceased as also the appellant.  He, however,  resiled  from his earlier statement; but he had assigned reasons therefor,  stating :

"\005I think whatever destined has happened and now

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there should not be bad consequences for the family of  Swami."                  

       It shows as to why he had turned hostile.   It also indicates why PW1  and PW2 turned hostile.  Even PW4 did not tell the whole truth.         Let us now consider as to what extent PW3 can be believed.   Although  he resiled from his statement that he had seen the appellant assaulting the  deceased, but he had proved the other part of his earlier statement, namely, the  demand of = share in the property by the appellant and on his refusal to  accept the said demand, the appellant went towards the well with an axe in his  hand.

       PW-1, the informant, is also a witness to the aforementioned incident.   He was present when Appellant  made a claim of = share in the property.   He  was also seen going towards the well with axe in his hands. According to him  when he reached home, he had heard an alarm that Rameshwar had been  murdered.  He did not in his cross-examination, dispute his earlier statements.   He stated :

       "It is correct to say that I and Rameshwar used to  sit together in the village and even we used to go together  in the marriage.  Rajkumar does not belong to my family.   Rajkumar got the share and he belongs to our family.   The First Information Report of the occurrence were  shown to T.I.  I got it mentioned by T.I. in the report Ext.  P-1 marked as ’A’ to ’A’ that at that time Ramsahay and  Rameshwar were taking bath at the well.  Ramsahay left  for the home after some time.  Thereafter Swami Prasad  armed with Axe and he reached in the well, where  Rameshwar was taking bath and he immediately gave 2-3  blows of Axe at the neck of Rameshwar and he raised the  voice telling that see that now there are two shares.  I saw  Rameshwar while falling.  Later Swami raised the voice  and he invited all persons to come as he wanted to kill  all.  It is correct to say that I did not see Swami Prasad  while giving blows of axe at  Rameshwar.  I did not give  the attention that whether Swami was armed with axe at  that time when he left.  It is correct to say that I saw  Swami while going towards the well.  I did not see  Ramsahay and Rameshwar while taking bath.  As I heard  the alarm, so I got it dictated that Swami killed  Rameshwar with the axe."

       Similarly, he furthermore stated :

"\005It is correct  to say that I disclosed in my statement in  the portion ’B to ’B’ of Ext. P-4 that after some time  Ramsahay left for the home and then Swami Prasad  suddenly came armed with the axe towards the well.  I  did not disclose in my statement to the T.I. in the portion  ’C’ to ’C’ of Ext. P-4 that Swami Prasad suddenly gave  blow of the axe at Rameshwar and when he gave second  blow, then he told that see there are two portions\005"

       Even in cross-examination made on behalf of the appellant, he accepted  that he heard an alarm that Rameshwar was killed and the appellant had killed  him.                  From the evidences on records, apart from PW-6, who is an eye- witness, in our opinion, the following facts must be held to have been  sufficiently proved :

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1)      Appellant had demanded = share in the property from his father at          about 10 a.m. on 08.11.1986; and having been told that the property          would be divided equally amongst the three sons, he became angry; 2)      PW-4  while  in his house heard a cry that Rameshwar had been          killed  by the appellant.  3)      Appellant was seen at the place of occurrence with an axe.           He went to the Police Station with the axe and blood-stained clothes;

       Although he did not make any categorical statement that he had killed  the deceased, his statement to the effect that Rameshwar had been killed with  the axe which he had been holding is  sufficiently indicative of the fact that it  was he who had killed the deceased.   His statement is to be read reasonably  and in its entirety.   So read no other meaning can be attributed thereto.

       There cannot be any doubt whatsoever, that a judgment of acquittal  should not be interfered with, if two views are possible.  This has recently  been stated in Samghaji Hariba Patil v. State of Karnataka [AIR 2007 SC 28].

       However, it is equally true that the High Court while entertaining an  appeal against a judgment of acquittal would be entitled to consider the entire  materials on records for the purpose of analyzing the evidence.  There is a  presumption that an accused is innocent, unless proved otherwise.  When he is  acquitted, the said presumption, becomes stronger.  But it may not be correct  to contend that despite overwhelming evidence available on records, the  appellate court would not interfere with a judgment of acquittal. {See  Chandrappa & Ors. v State of Karnataka [2007 (3) SCALE 90]}.

       For the reasons aforementioned, we do not find any merit in this appeal  which is dismissed accordingly.   

       Appellant is on bail.  He is directed to surrender forthwith and serve out  the remaining sentence, failing which, the Chief Judicial Magistrate concerned  shall take proper steps for his apprehension.