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2005 DIGILAW 474 (MP)

Mansukh Gond. v. State of Madhya Pradesh

2005-04-04

RAJEEV GUPTA, S.K.KULSHRESTHA

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Judgment ( 1. ) THIS appeal is directed against the judgment dated 15-11-1994 of the learned 2nd Additional Sessions Judge, Jabalpur in Sessions Trial No. 519/1994, by which the appellants have been convicted under Section 302 read with Section 34 of the IPC, and each has been sentenced thereunder to Imprisonment for Life and fine of Rs. 100/-, and on failure to deposit fine, further imprisonment of 2 months for having voluntarily caused the death of Bal Singh on the night of 4-1-94, at about 9. 30 PM, in Village Daddar Gavan, Barhatola, by first strangulating him and then burning his body. ( 2. ) THE current case is also an instance of faith of the illiterate rustics in the witch-craft. It is stated by the prosecution that on account of the demise of two sons of accused Mansukh and indisposition of his father which he attributed to the witch- craft that the deceased practiced, the accused persons with a view to cause his death, first strangulated him and thereafter set him afire. The deceased and his brother Ballu Singh had stored their crop in the barn and they used to go to the field at night to keep watch on their separate holdings, of the crop. Ballu Singh had come to the house from the field a day prior to the incident while deceased Bal Singh remained there to keep a watch on the crop. P. W. 7 Ballu Singh went to the field to give food to his brother (deceased) at about 7. 30 and witnessed that the accused were burning his body and they were putting logs of wood while deceased was lying on the ground and some cinders were lying around. He inquired from accused Mansukh as to why they were doing so, but accused Mansukh said that he would also be thrown into the fire. Ballu Singh rushed to the village and informed Vishram Gond, Danpat Master and other persons from the village, who rushed to the place of the incident and noticed that the fuel wood and the dried grass put on the body of the deceased was aflame, and Bal Singh had died. P. W. 7 Ballu Singh then informed Shyamlal Kotwar and Lamu Patel about the incident at 4. 00 AM. Shyamlal Kotwar and Lamu Patel then went to the place of the incident. P. W. 7 Ballu Singh then informed Shyamlal Kotwar and Lamu Patel about the incident at 4. 00 AM. Shyamlal Kotwar and Lamu Patel then went to the place of the incident. P. W. 7 Ballu Singh accompanied by Shyamlal Kotwar went to police station at about 7-8 in the morning, and lodged First Information Report (Ex. P-6) on the basis whereof Crime No. 7/94 was registered against the accused. ( 3. ) THE police registered Merg (Ex. P-2 ). Station House Officer Shri P. C. Jain proceeded to the village on 6-1-94. He held inquest and prepared inquest report (Ex. P-2 ). From the place of the incident he seized half burnt pieces of wood vide Ex. P-3 and P-4. Spot Map (Ex. P-5) was prepared. Body of deceased Bal Singh was forwarded for post-mortem in respect of which P. W. 8 Dr. D. K. Sakle gave report (Ex. P-8 ). The seized articles were sent to the Forensic Science Laboratory, vide Ex. P-9 from where reports Ex. P-10 and P-11 were received. After recording the statements of the witnesses, the case was filed in the Court. ( 4. ) THE accused denied the charges and stated that they had been falsely implicated. They also examined two witnesses Dharmu and Bhadai in their defence. However, on trial, the learned Additional Sessions Judge found the appellants guilty and convicted and sentenced them by the said impugned judgment, as stated hereinabove. ( 5. ) THE learned Counsel for the appellants submits that the conviction of the appellants is founded on the evidence of P. W. 7 Ballu Singh, brother of the deceased, who has styled himself as an eye-witness but there are circumstances on record which are voluble of the fact that he could not have been an eye- witness to the incident. He has further submitted that omnibus statement has been made against all the appellants while participation of such a number of accused causing the death of the deceased is not made out by the prosecution evidence. The learned Counsel, therefore, submits that the prosecution evidence, being full of contradictions, omissions and improbabilities, should have been discarded by the learned Additional Sessions Judge. In this background, the learned Counsel submits that judgment of conviction and sentence be set aside. The learned Counsel, therefore, submits that the prosecution evidence, being full of contradictions, omissions and improbabilities, should have been discarded by the learned Additional Sessions Judge. In this background, the learned Counsel submits that judgment of conviction and sentence be set aside. The learned Government Advocate, per contra, submits that there is evidence to suggest that P. W. 7 Ballu Singh had disclosed to the villagers that he had seen the appellants causing death of the deceased. Steps were taken to lodge the First Information Report early in the morning and, therefore, the report is also prompt and the witnesses examined in the Court and the circumstances brought on record clearly establish that the appellants were the perpetrators of the crime and their conviction and the sentence passed against them does not call for any interference. ( 6. ) THE first question that arises for consideration is as to what was the nature of death of deceased Bal Singh. In this behalf, prosecution has examined P. W. 8 Dr P. K. Sakle, to whom the body of deceased Bal Singh was forwarded. Dr. , Sakle was posted as Reader in the Medical College, Jabalpur on the date of the incident. On 7-1-1994, the body of deceased Bal Singh was brought to him for post-mortem examination by Constable Kati Parsed. He had performed autopsy and given report (Ex. P-8 ). In this report, he had clearly slated that burns on the body were post-mortem and the death had occurred on account of asphyxia due to throttling. He had also noticed that incisors (front teeth) had broken and there had been bleeding and died blood was present in the surrounding area. He has, therefore, opined that violence was used for causing death before the body was burnt. ( 7. ) IN this background, we proceed to consider the evidence of the solitary eye-witness P. W. 7 Ballu Singh, brother of the deceased. We reiterate that Ballu Singh had gone to the field to give food to the deceased and had returned at midnight. P. W. 7 Ballu Singh has stated that on the date of the incident his brother had gone to the field to keep watch on the crop. This witness had come home to have food and after taking his meals, he had gone to the fields to give food to Bal Singh. P. W. 7 Ballu Singh has stated that on the date of the incident his brother had gone to the field to keep watch on the crop. This witness had come home to have food and after taking his meals, he had gone to the fields to give food to Bal Singh. It is at this juncture that he claims that he saw that accused Mansukh, Barite, Mantra and Remlap were in the field and they had set fire to their hut and were putting the burning straws on Bal Singh, who was lying inert on the ground. When he asked them as to why they were burning him, they rushed to assault him, but he managed to escape and came back to the village where he narrated the incident to Vishram Gond and other persons of the Village. The villagers went to the barn and he along with Kotwar went to the Police Station where he reported the matter. He has further stated that the accused were suspecting the deceased of practicing witch-craft as a result whereof there were deaths in the house of the accused and persons had become indisposed. The learned Counsel for the appellants submits that veracity of the evidence of P. W. 7 Ballu Singh is pivoted mainly on his having narrated the incident immediately to Vishram and others, but he stands belied ,in this material aspect by a person no less than the son of the deceased P. W. 5 Harman Singh. P. W. 5 Harman Singh has stated that he did not see the accused committing any act resulting in the death of his father. He has, in no uncertain terms, admitted that his uncle (P. W. 7 Ballu Singh), after returning from the field where he had gone to give food to his father came home and slept, and it was only in the morning that he disclosed to them that his father had been done to death by the accused persons. The learned Government Advocate has not been able to explain this meaningful silence of the only eye-witness P. W. 7 Ballu Singh, in refraining from making an immediate disclosure of the incident to the son of the deceased. ( 8. The learned Government Advocate has not been able to explain this meaningful silence of the only eye-witness P. W. 7 Ballu Singh, in refraining from making an immediate disclosure of the incident to the son of the deceased. ( 8. ) NOT only that the son of the deceased does not corroborate the evidence of P. W. 7 Ballu Singh, instead he contradicts him by saying that his conduct was not that of a witness who had seen the ghastly crime, there are other witnesses who are pointer to the fact that P. W. 7 Ballu Singh could not have been an eye- witness. P. W. 4 Bushes had deposed that he kepi watch on the dead body of the deceased throughout the night till the police arrived on the next day at about 10. 00 AM and prepared Panchnama. He does not state anything about the presence of P. W. 7 Ballu Singh. Similarly, P. W. 6 Amar Singh has admitted in his cross-examination that on the night when Bal Singh died, P. W. 7 Ballu Singh did not disclose to him the names of his assailants. We may pause here to refer to the observations of the Apex Court in the case of Shankarlal v. State of Rajasthan, reported in AIR 2004 SC 3559 , wherein in similar circumstances Their Lordships have expressed doubt about the testimony of such a witness, who did not disclose the event to the persons he came across while returning and maintained a meaningful silence for long hours. The discussion contained in Para 5 of the judgment reads as extracted herein below: "5. Even according to the prosecution the only witness to the incident in question is P. W. 6 therefore as contended by the learned Counsel for the appellant we will have to examine his evidence carefully. If we do so then we notice that on the date of incident he had gone to a Village Upli for some work. From there he came back by bus at about 11 Oclock. He then allegedly went to the village to meet Ram Rakh where he was told by his wife that the latter had gone to the field. If we do so then we notice that on the date of incident he had gone to a Village Upli for some work. From there he came back by bus at about 11 Oclock. He then allegedly went to the village to meet Ram Rakh where he was told by his wife that the latter had gone to the field. It is the prosecution case itself that the distance between the field of Ram Rakh and the village is about 4-5 miles and P. W. 6 covered the distance on foot and when he reached near the field of Ram Rakh he heard a quarrel and when he went towards the place of quarrel he saw the appellant attack the deceased with an axe. It is his further case that when he reached near the deceased the appellant ran away. It is at this point of time he states that he got scared and he took a different route than the one he took on the way and reached the village at about 4 or 4. 15 p. m. It is his case that when he went to the house of Ram Rakh he could not find him therefore he came near the village square where he met P. W. 2 Khyali Ram. From the above evidence of P. W. 6 it is apparent that though there were persons available on his way back, he did not inform anybody about the incident. Even when he reached the village and met Ram Rakhs wife he did not inform her about the incident and it is for the first time he informs about this incident to P. W. 2 at the village square at about 4. 15 p. m. Contrary to what he stated in the examination-in chief that he saw only one assault on the deceased, in the cross examination he stated that he saw the appellant attack the deceased twice and both the injuries were caused in his presence. It is also to be noticed from his cross-examination that when he met P. W. 2 Khyali Ram and told him about the incident in question but P. W. 2 supposedly told him that he had already come to know of the incident from P. W. 14. Prosecution has not found how P. W. 14 came to know of the incident. Prosecution has not found how P. W. 14 came to know of the incident. In this background if we appreciate the evidence of P. W. 6 we notice the fact that he is purely a chance witness whose presence at the place of the incident is highly doubtful. His conduct too seems to be unnatural in not informing anyone else in the village until he met Khyali Ram at the village square. We also notice that there is unexplained delay in filing the complaint inasmuch as according to the prosecution the incident in question took place about 1. 30 p. m. and a complaint was lodged only at 3. 15 a. m. on 5-4-1980. Though the distance is about 30 miles from the place of incident, the complainant had the facility of using the tractors available in the village and they did use the same for travelling to the police station. In such circumstances this unexplained long delay also creates a doubt in our mind as to the genuineness of the prosecution case. Once we are not convinced with the evidence of P. W. 6 then there is no other material to base a conviction on the appellant hence we are of the opinion that the appellant is entitled to benefit of doubt therefore this appeal succeeds and is allowed. The judgment and order of conviction of the 2 Courts below are set aside. The appellant is acquitted of the charge framed against him. From the records we notice that the appellant is on bail. If so his bail bonds shall stand discharged. " (Emphasis supplied) ( 9. ) IN view of the clear position of law as enunciated above with regard to a person who keeps mum after witnessing an incident and discloses it after long delay which the prosecution docs not explain, which the law frowns at, it would be hazardous to maintain conviction of the appellants only on the testimony of P. W. 7 Ballu Singh, brother of the deceased, which stands contradicted by a person no less than the son of the deceased P. W. 5 Harnam Singh. We may pause here to clarify that there can be cases where a child may out of fear, or a woman may out of fear become tongue tied for a short while, but such is not a case in so far as P. W. 7 Ballu Singh, matured person of 35 years of age, is concerned. In any case, there being no explanation for the omission to disclose the incident to the son of the deceased, he can not be believed. To us, it appears that after P. W. 7 Ballu Singh had returned to his house, the incident must have taken place and it is only when he went in the morning after learning about the body having been burnt that the story was invented. The accused persons, therefore, deserve benefit of doubt. ( 10. ) IN the result, this appeal is allowed. The conviction of the appellants under Section 302 read with Section 34 of the IPC and sentences of imprisonment for life and fine of Rs. 100/-, arc hereby set aside and they are acquitted of the charges. 14. The appellants arc undergoing sentence in jail. They be released forthwith if not required in connection with any other matter.