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Madhya Pradesh High Court · body

2003 DIGILAW 785 (MP)

Jalam Singh v. State of M. P.

2003-06-27

RAJEEV GUPTA, SHANTANU KEMKAR

body2003
Judgment ( 1. ) THE appellants, eight in number, have filed this appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 against the judgment dated 9th March, 1990 passed by IInd Additional Sessions Judge, Hoshangabad in Sessions Trial No. 38/89 convicting them under Sections 148 and 302 read with Section 149 of the Indian Penal Code with sentences of rigorous imprisonment for one year and imprisonment for life each respectively. ( 2. ) THE prosecution story in brief, may be stated :-On 6-11-1988 at about 11 AM. Jagdish (deceased) while working on his field was assaulted by the appellants by lathi and kharda (sharp edged weapon like farsa ). As a result of the injuries sustained, Jagdish died the same day. Shantibai (P. W. 4) who was on the field, came running to the house of the deceased and narrated the incident to Gijiabai (P. W. 1) wife of deceased, Laxman (P. W. 2) and Chunnulal (P. W. 3 ). Gijiabai, Laxman and Chunnulal rushed to the spot and saw appellants assaulting Jagdish. Gijiabai (P. W. 1) tried to save her husband Jagdish and also requested appellants not to beat her husband. Laxman (P. W. 2) and Chunnulal (P. W. 3) also requested the appellants to spare the deceased but to no avail. After inflicting many injuries the appellants ran away from the spot. Injured Jagdish, who was carried in a bullock cart, died on way to Sohagpur Police Station. Gijiabai (P. W. 1) lodged FIR at Police Station, Sohagpur. After investigation the police submitted the charge-sheet against the accused persons. ( 3. ) THE appellants abjured their guilt and pleaded that they were innocent. ( 4. ) BEFORE the Trial Court the prosecution examined Gijiabai (P. W. 1), Laxman (P. W. 2), Chunnulal (P. W. 3), Shantibai (P. W. 4), Ravishankar (P. W. 5), Dr. Ravi Sharma (P. W. 6) and Govindi (P. W. 7), in support of its case. The appellants, however, did not examine any witness in their defence. ( 5. ) AT the trial Laxman (P. W. 2), Chunnulal (P. W. 3) and Shantibai (P. W. 4) turned hostile. The Trial Court on the basis of ocular and medical evidence led by the prosecution held it proved that the deceased Jagdish had sustained as many as 12 injuries on 6-11-88, and died homicidal death. ( 5. ) AT the trial Laxman (P. W. 2), Chunnulal (P. W. 3) and Shantibai (P. W. 4) turned hostile. The Trial Court on the basis of ocular and medical evidence led by the prosecution held it proved that the deceased Jagdish had sustained as many as 12 injuries on 6-11-88, and died homicidal death. Relying upon the solitary eye-witness account of Gijiabai (P. W. 1) which was found corroborated by other ocular and medical evidence on record, the Trial Court held accused persons guilty of causing those external injuries on Jagdish which resulted in his death. On the above findings the Trial Court convicted the appellants as mentioned above. ( 6. ) WE have heard Shri A. D. Deoras, and Shri Sanjay Sarvate, learned counsel for the appellants, and Shri S. K. Rai, learned Counsel for the State and perused the record. ( 7. ) SHRI Deoras challenged the judgment of Trial Court on the grounds that the Trial Court has erred in convicting the appellants on the solitary eye-witness account of Gijiabai (P. W. 1), whose evidence suffers from serious infirmities. ( 8. ) ON the other hand, Shri S. K. Rai, Counsel for the State, supported the impugned judgment and contended that the eye-witness account of Gijiabai (P. W. 1) is amply corroborated by the medical evidence on record and as such this appeal against conviction does not warrant any interference. ( 9. ) THE facts that deceased Jagdish sustained as many as 12 injuries resulting in his death on 6-11-88, and that his death was homicidal in nature were not disputed by the defence at any stage of the trial. That apart we find overwhelming evidence ocular and medical, on record in support of the above facts. We, therefore, affirm the finding recorded by the Trial Court in that behalf. ( 10. ) FROM the impugned judgment we gather that the appellants conviction is founded on the solitary eye-witness account of Gijiabai (P. W. 1 ). ( 11. ) GIJIABAI (P. W. 1) in her statement stated that she, on being informed by Shantibai (P. W. 4) that the appellants are causing injuries to her husband Jagdish, rushed to the spot and found the appellants causing injuries on her husband. She tried to save her husband but the accused persons pushed her away. ( 11. ) GIJIABAI (P. W. 1) in her statement stated that she, on being informed by Shantibai (P. W. 4) that the appellants are causing injuries to her husband Jagdish, rushed to the spot and found the appellants causing injuries on her husband. She tried to save her husband but the accused persons pushed her away. Gijiabai (P. W. 1) in her cross-examination has stated that she had seen Shivdeen (Appellant No. 2) dealing 2-3 blows by Kharda on her husband and the other appellants were dealing lathi blows. She further stated that each one of them inflicted 7-8 blows in her presence. ( 12. ) IN order to examine the submission of Shri Deoras, the learned Counsel for the appellants, that Gijiabai (P. W. 1) could not have reached the spot in the nick of time, the distance between the place of occurrence and the house of Gijiabai is material. To prove the distance the prosecution has examined Ramji Choudhari (P. W. 9) Patwari of the Village Madanpur. As per his statement and the spot map (Ex. P-25) the distance of Gijiabais Village Madanpur is 6 furlongs from the place of incident. Thus, Shantibai (P. W. 4) covered the distance of six furlongs while coming from the spot to the house of Gijiabai (P. W. 1); she narrated the incident to Gijiabai (P. W. 1); and then Gijiabai (P. W. 1) also covered the same distance of six furlongs in reaching the spot. All this must have taken atleast half an hour. The doctor found 12 external injuries on the deceased. The accused persons, who were eight in number, could not have taken more than 10 to 15 minutes in causing those injuries on the deceased. Therefore, the statement of Gijiabai (P. W. 1) about reaching the spot in the nick of time and witnessing the actual assault of her husband does not appear to be reliable. ( 13. ) THE Apex Court in the case of Anil Phukan v. State of Assam, reported in ( AIR 1993 SC 1462 ) while considering the evidence of solitary eye-witness observed in Para 3 : ". . . . . . A conviction can be based on the testimony of a single eye-witness and there is no rule of law or evidence which says to the contrary provided the sole witness passes the test of reliability. . . . . . A conviction can be based on the testimony of a single eye-witness and there is no rule of law or evidence which says to the contrary provided the sole witness passes the test of reliability. So long as the single eye-witness is a wholly reliable witness the Courts have no difficulty in basing conviction on his testimony alone. However, where the singly eye-witness is not found to be a wholly reliable witness, in the sense that there are some circumstances which may show that he could have an interest in the prosecution, then the Courts generally insist upon some independent corroboration of his testimony, in material particulars, before recording conviction. It is only when the Courts find that the single eye-witness is a wholly unreliable witness that his testimony is discarded in toto and no amount of corroboration can cure that defect. . . . " ( 14. ) THE evidence of Gijiabai (P. W. 1) suffers from yet another serious infirmity. She in her evidence has stated that each accused dealt atleast 7-8 blows on her husband in her presence. Surprisingly, the Autopsy Surgeon found only 12 injuries on the deceased. This would further indicate that Gijiabai in fact did not witness the assault herself and she was introduced as an eye-witness, as she happened to be wife of the deceased. ( 15. ) FROM the foregoing discussion, it emerges out that the entire prosecution case against the appellant hinges on the solitary eye-witness account of Gijiabai (P. W. 1), who is an interested witness being the widow of deceased Jagdish. Though the accused persons, the deceased and Gijiabai (P. W. 1) were members of the same family, but their relations were strained on account of some property dispute. The distance between the village of Gijiabai (P. W. 1) and the place of occurrence makes it doubtful that Gijiabai could have reached the place of occurrence during the incident. Her evidence is not only inconsistent, but stands belied by the medical evidence so far as the number of blows/injuries are concerned. Absence of any injury on her person also makes her presence at the time of the incident doubtful. There is no other evidence on record which may corroborate the evidence of solitary eye-witness Gijiabai (P. W. 1 ). ( 16. Absence of any injury on her person also makes her presence at the time of the incident doubtful. There is no other evidence on record which may corroborate the evidence of solitary eye-witness Gijiabai (P. W. 1 ). ( 16. ) IN view of the above serious infirmities in the evidence of solitary eye-witness Gijiabai (P. W. 1), we find it quite unsafe to act upon her solitary evidence in holding the appellants guilty on capital charge of murder. The Trial Court appears to have lightly brushed aside the above mentioned infirmities in the evidence of solitary eye-witness Gijiabai (P. W. 1), while recording the appellants conviction. ( 17. ) FOR the above reasons, the appeal, filed by the appellants, against their conviction and sentences deserves to be and is hereby allowed. Appellants conviction under Sections 148 and 302 read with Section 149, IPC and sentences of rigorous imprisonment for 1 year and imprisonment for life respectively are hereby set aside. The appellants are acquitted of the above charges. ( 18. ) THE appellants are on bail. Their bail bonds shall stand discharged.