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2000 DIGILAW 65 (MP)

Asmaniya Bai v. State of M. P.

2000-01-18

D.M.DHARMADHIKARI, USHA SHUKLA

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JUDGMENT D.M. Dharmadhikari, J. 1. The judgment passed in this appeal shall also decide two connected appeals i.e. Criminal Appeal No. 662/1993 Ghuran vs. State of M.P. and Criminal Appeal No. 663/1993 Jasbir Ram vs. State as they arise out of the same judgment of conviction. 2. The appellant Smt. Asmaniya Bai in this appeal and the co-accused Ghuran and Jasbir Ram appellants in the connected appeals stand convicted and sentenced to life imprisonment for an offence punishable under section 302/34 of Indian Penal Code charge of committing murder of deceased Kastu Ramon the night of 13-11-1991 in village Lodam Patratoli under Police Station Jaspurnagar, District Raigarh. The Additional Sessions Judge, Jaspurnagar by judgment dated 19-1-1993 convicted the accused persons relying on the testimony of the sole eye witness Munni Bai (P.W.12) and the alleged 'Extra Judicial Confession' made by the co-accused Jasbir Ram to Jageshwar Ram (P.W.1), Silmat (P.W.2), Nankuram (P.W.3), Choutha (P.W.4), Ramdayal (P.W.8), Dukhusav (P.W.10) and Bhukhla Ram(P.W.14). 3. The learned trial Judge also relied on the evidence of Memorandum of information (Ex.P/10) and seizure of blood stained 'stick' (Ex.P./11) from accused Asmaniya, Memorandum and seizure of an 'axe' Ex.P.12 and Ex.P/13 respectively from accused Jasbir Ram and on memorandum and seizure of 'Lathi' Ex.P/14 and Ex.P/15 respectively from accused Ghuran. The blood stained clothes are alleged to have been recovered from all the accused persons under Memorandum and Seizure Ex.P/16 to Ex.P/20. The blood stained articles and clothes were sent to the Forensic Science Laboratory, Sagar and as per the report received Ex.P/27 and Ex.P/28 presence of blood was found on the alleged 'Tangia or axe' recovered from accused Jasbir Ram, on 'lathi' recovered from accused Ghuran and on 'stick' recovered from accused Asmaniya. There is, however, no report of the serologist on record to prove that the blood found was of human origin and what was its group. The Marg intimation (Ex.P/23) was given on 14-11-1991 at 10.20 by Amarnath Jaiswal (P.W.11). The First Information Report (Ex.P/21) was recorded on 14-11-1991 at 10.15 p.m. 4. Dr. D.C. Mahadik (P.W.9) performed the autopsy and as per his postmortem report there were three incised wounds found on the head with fracture of occipital bone and one lacerated wound on the head region. The cause of death is stated to be Coma due to injury on brain. In the opinion of Dr. Dr. D.C. Mahadik (P.W.9) performed the autopsy and as per his postmortem report there were three incised wounds found on the head with fracture of occipital bone and one lacerated wound on the head region. The cause of death is stated to be Coma due to injury on brain. In the opinion of Dr. Mahadik (P.W.9) the deceased met with homicidal death. 5. We have heard Ms. Usha Das Gupta, Advocate who appeared to provide legal aid to the accused appellants. 6. We have also heard Shri A.K. Verma, Panel Lawyer appearing for the State. We have carefully gone through the entire record of the case. 7. As has been mentioned above the conviction of the appellants is based on the sole eyewitness testimony of Munni Bai (P.W.12) and on the alleged extra-judicial confession made to several witnesses named above as also on the evidence of recovery of blood stained clothes and articles alleged to have been used for commission of crime. We propose to deal with each category of evidence to find out whether the conviction of the appellants is sustainable or not. 8. TESTIMONY OF SOLE EYE-WITNESS MUNNI BAI (P.W. 12). According to the version of Munni Bai (P.W.12) whose statement was recorded on 29-9-1992 for an incident which had taken place on 13-11-1991 the facts are as under:- She experienced pain in her feet and for treatment went to accused Asmaniya. There she saw accused Jasbir Ram. Asmaniya and Ghuran inflicting blows on the deceased Kashtu Ram with Tangiya, stick and lathi respectively. They continued the assault until the deceased died. She further states that for pain in her feet she took treatment by ' Jhad-Phoonk'. According to her a quarrel took place between accused and deceased Kashtu Ram. After witnessing the incident she did not report the matter to any one in the village on that day or on the subsequent dates. She was not properly cross-examined by the counsel appearing for the accused. In reply to the questions put to her in a half hearted cross-examination done she states that she had gone to Asmaniya for treatment of her leg at about 8' o clock in the evening. She had received treatment for about one hour. After witnessing the incident of 'Mar-peet' she went back to her home. According to her she narrated the incident of 'Mar-peet' for the first time in Court. She had received treatment for about one hour. After witnessing the incident of 'Mar-peet' she went back to her home. According to her she narrated the incident of 'Mar-peet' for the first time in Court. From the record of the case before us we find that this alleged eye witness has also given her statement under section 161, Criminal Procedure Code to the police on 9-12-1991 in which she had given a totally different version. Since the statement recorded under section 161, Criminal Procedure Code which is on record of the case has not been confronted to her as it should have been through any competent lawyer, we cannot make use of the same to weigh the evidence of Munni Bai (P.W.12). There are, however, several serious infirmities in her testimony to render it wholly unworthy of reliance. The conduct disclosed from the testimony is highly unnatural and improbable. According to her while she had gone for treatment of her leg to accused Asmaniya, she saw all the three accused persons committing murder of deceased Kashtu Ram. But she did not report the matter to anybody in the village for such a long period. She also does not state in the cross-examination that she had given any statement to the police under section 161 Criminal Procedure Code. According to her, after the incident, for the first time she narrated the incident in the Court. There was no reason for her not to disclose incident of such brutal murder which she claims to have witnessed. In the Marg intimation (Ex.P/23) and F.I.R. (Ex.P/21), there is no mention of any villager to have witnessed the incident. The alleged eye-witness claims to have remained in the house of accused Asmaniya for about an hour. Such testimony of a witness whose subsequent conduct is highly unnatural and improbable inspires no credence and in the absence of other corroborative evidence it is unsafe to rely on it. 9. EVIDENCE OF EXTRA JUDICIAL CONFESSION. Jageshwar Ram (P.W.1) who has described himself as brother of deceased Kashtu Ram and is also related to accused Jasbir Ram states that after committing offence accused Jasbir along with his mother Asmaniya came to his house in the night and knocked the door. He states that the accused disclosed to him that he had killed Kashtu Ram. On the suggestion of the accused, they went to the house of Kotwar Buersay. He states that the accused disclosed to him that he had killed Kashtu Ram. On the suggestion of the accused, they went to the house of Kotwar Buersay. He was not available at home. Thereafter, they went to the house of second Kotwar Maghiram. Kotwar Maghiram did not stir outside the house. They thereafter returned to their respective homes. 10. The next witness is Silmat (P.W.2). She states that at about 8-9 O'clock in the night accused Jasbir along with his mother Asmaniya knocked the door of her house and disclosed to her that they had killed deceased Kashtu Ram. Thereafter she went inside the house to sleep. On the next day when she went to the house of deceased she saw dead body of the deceased Kashtu Ram and found that there was injury on his head. 11. The third witness is Nanku Ram (P.W.3). According to this witness on getting news of murder of Kashtu Ram he went to his house and saw his dead body. After half an hour he states that he happened to meet accused Jasbir and the accused confessed before him that he had killed Kashtu Ram. This witness in cross-examination admits that Kashtu Ram was a drunkard and used to quarrel in the village. 12. The fourth witness is Choutha (P.W.4). This witness states that while he was going in the morning to ease himself he saw the dead body of deceased Kashtu Ram. From there he went to the house of accused Jasbir and made inquiries from him where upon the accused told him that he had killed the deceased. In the cross-examination he states that this disclosure and confession made to him by accused Jasbir were not narrated by him to anyone in the village. 13. Maghi Kotwar (P.W.6) who is alleged to have been approached by Jasbir and Jageshwar (P.W.1) after the alleged confession made to him by the accused Jasbir, has not supported the prosecution case. He denies knowledge of any such extra judicial confession or approach to him on the night of incident by accused and Jageshwar Ram (P.W.1). He was declared hostile by the prosecution and was cross examined but with no advantage to the prosecution. 14. According to Ramdayal (P.W.8) on the date of incident he was in his house. He denies knowledge of any such extra judicial confession or approach to him on the night of incident by accused and Jageshwar Ram (P.W.1). He was declared hostile by the prosecution and was cross examined but with no advantage to the prosecution. 14. According to Ramdayal (P.W.8) on the date of incident he was in his house. The accused persons came to him and accused Asmaniya told him that they had together killed deceased Kashtu Ram. This witness was also not properly cross-examined. 15. Amarnath Jaiswal (P.W.11) who has lodged the Marg intimation Ex.P/23 and FIR Ex.P/21, in Court does not state that as recorded in F.I.R. Ex.P/21, the accused Jasbir had made any extrajudicial confession to him. He admits to have lodged the FIR but categorically states in Court that he did not make any inquiries from accused Jasbir about the incident. 16. It is really surprising for this Court that such evidence of extra judicial confession coming from the mouth of several villagers named above was relied by the learned trial Judge without appreciating the credibility of such evidence. The witnesses want the Court to believe that after committing murder the accused persons went on moving in the village from house to house knocking the doors of the above named witnesses and disclosing to each one of them about the crime committed by them. Such conduct cannot be expected from a person who has committed the crime. There was no apparent reason for them to go on moving in the village telling people about the crime committed by them. The prosecution has produced Munni Bai (P.W.12) as the sole eye-witness and although she claims to have seen the incident of murder, the fact was not disclosed by her to anybody in the village. Such evidence of alleged eye witness and extrajudicial confession is not only unreliable but warrants out-right rejection as a pure concoction by the police. 17. Amarnath Jaiswal (P.W.11) lodger of the FIR (Ex.P/21) does not support the contents of FIR. The contents of FIR as also the alleged extra-judicial confession contained in F.I.R. stand unproved. Same comment can be made with regard to the evidence of Bhukhla Ram (P.W.14) who says that he happened to meet accused Jasbir and the latter confessed to him to have committed the crime. 18. EVIDENCE OF RECOVERY ON MEMORANDUM OF BLOOD STAINED ARTICLES AND CLOTHES FROM THE ACCUSED PERSONS. Same comment can be made with regard to the evidence of Bhukhla Ram (P.W.14) who says that he happened to meet accused Jasbir and the latter confessed to him to have committed the crime. 18. EVIDENCE OF RECOVERY ON MEMORANDUM OF BLOOD STAINED ARTICLES AND CLOTHES FROM THE ACCUSED PERSONS. The evidence of memorandum and recovery by itself is a very weak type of evidence and in the absence of other corroborative evidence cannot be made sole basis of conviction. We find that the said evidence is also not a clinching one to connect the accused persons with the crime. The report of Forensic Science Laboratory only proves the presence of blood on some of the articles but not its quantity. It has not been confirmed that the blood found was of human origin. No ascertainment of blood group has been done. 19. Shri B.N. Singh (P.W.15) the Investigating Officer has merely made a mention of memorandum and seizure of articles and clothes but has not proved their contents. This witness has also not been properly cross-examined excepting putting him one or two questions. 20. In our opinion the evidence of memorandum and seizure of articles and clothes is not sufficient to hold the accused guilty of the crime. 21. The learned trial Judge lost sight of the most important circumstance that as per the inquest Ex.P/9 and the spot map Ex.P/1 the dead body of deceased Kashtu Ram was not found in the house of any of the accused or at the place where the incident was alleged to have taken place. The dead body was found near the field path which is in front of the house of the deceased. 22. In our considered opinion the prosecution has miserably failed to prove the offence against the accused persons and it appears that innocent persons have been roped in the offence. The accused are poor villagers and could not engage a lawyer. They have been provided legal aid in this Court. On perusing the record this Court on 28-3-1995 granted bail to accused Asmaniya but it is reported that due to extreme poverty she could not arrange for furnishing bail bonds and is still in confinement. The accused are poor villagers and could not engage a lawyer. They have been provided legal aid in this Court. On perusing the record this Court on 28-3-1995 granted bail to accused Asmaniya but it is reported that due to extreme poverty she could not arrange for furnishing bail bonds and is still in confinement. On 12-3-1996 accused Ghuran in Criminal Appeal No. 662/1993 was granted bail but it appears from the record that because of poverty he also could not arrange to furnish bail bonds and hence not released. Accused Jasbir Ram is still in confinement who has preferred criminal appeal No. 663/1993. 23. At the end this Court cannot resist from observing that the present accused persons have suffered imprisonment for such a long period not only because of poverty but for want of proper legal aid to them. The record of the trial Court shows that the counsel engaged failed to cross examine the witnesses as he should have. The legal aid provided in the High Court was also not as expected. The bail applications were moved much after the filing of the appeal and entrustment of the case to the counsel. 24. In criminal cases where the accused are poor the responsibility of the trial Judge is more. It is the duty of the trial Judge where the accused is not aided by a counsel, to provide legal aid through a competent lawyer. Even in the course of trial if the Judge finds that the legal aid provided by the counsel is not up to the standard, it is not only expected by the Judge but it should be deemed to be his duty to provide the accused another counsel competent to handle the trial in an effective manner so that the accused should get proper defence. The trial Judge can in complicated and difficult cases appoint any competent lawyer to assist the Court as amicus curiae. The Courts cannot forget that right to get legal aid is a Constitutional right of the accused. The Court should ensure not only legal aid to the poor but effective legal aid through a competent lawyer. The aid provided should be "legal aid to the poor, not poor legal aid". This case is an eye opener. The Courts cannot forget that right to get legal aid is a Constitutional right of the accused. The Court should ensure not only legal aid to the poor but effective legal aid through a competent lawyer. The aid provided should be "legal aid to the poor, not poor legal aid". This case is an eye opener. In our tribal and rural areas the villagers who are sometimes falsely accused of crimes are compelled to suffer untold miseries and languish in jail only due to their ignorance and poverty. The legal aid movement has to take up momentum by sensitising the various authorities constituted under the Legal Services Authorities Act, 1987. To avoid recurrence of such unhappy result of trial, the Judges and legal fraternity should realise their duties and responsibilities. The lawyers practising in such tribal and rural areas should come forward to provide competent legal aid to the poor, ignorant and needy. The Judges have to play an active role in course of trial by participating in questioning the witnesses, wherever justice demands and summoning for required oral and documentary evidence within the limits of laid down procedure in law. 25. A copy of this judgment be sent to all the Legal Services Committees in the State through the Secretary, State Legal Services Authority. A copy of this judgment be also sent to the Director General of Police, Bhopal for taking such corrective measures in the police department to check registration of false cases and fabrication of false evidence by the police against innocent poor villagers. 26. In the result the appeal succeeds and is allowed. The judgment of conviction and sentence dated 19-1-1993 passed by Additional Sessions Judge, Jaspurnagar in Sessions Trial No. 29/1992 is hereby set aside. The three accused in these three appeals are hereby acquitted of the charges framed against them. They are directed to be set at liberty forthwith if not otherwise required in any other case. Appeal allowed.