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Madhya Pradesh High Court · body

2006 DIGILAW 916 (MP)

State of M. P. v. Dhulsya

2006-07-27

S.L.KOCHAR, WAJAHAT ALI SHAH

body2006
JUDGMENT Kochar, J. -- 1. By judgment dated 17.1.1997 rendered by the learned 1st Additional Sessions Judge, Alirajpur, in S.T. No. 340/1990 thereby finding the respondents not guilty of the offence punishable under section 302/34 Indian Penal Code and acquitted them of that charge. Aggrieved by this judgment of acquittal, the State, after obtaining leave to appeal has preferred this appeal. 2. Facts necessary for deciding this appeal are as follows :-- In the intervening night of 12th and 13th of April 1990, Dalla, his wife Kesari and son Kunwarsingh Rio village Dhodhalpur were sleeping in the verandah (pastal) of their house. Deceased Dalla was sleeping separately while his wife Kesri and son Kunwarsingh were sleeping together on separate bed near Dalla. In the night at about 1:00 a.m. the respondents entered inside the house of Dalla having falia (hard and sharp object). They dealt blows of falia on head neck of Dalla as well as on the person of Kesribai. Their son PW 1 Kunwarsingh aged about 12 years, woke up and silently went inside the house from where he witnessed the incident. Dalla and Kesari died on the spot. PW 1 Kunwarsingh in the same night reached at the house of Rupla (PW 4) and disclosed the incident. Thereafter Kunwarsingh and Rupla went to Sarpanch Tersingh and village Chowkidar Versingh. Kunwarsingh also narrated the incident to them. They all came to the house of complainant Kunwarsingh and saw the dead bodies of his mother and father. Kunwarsingh then went to the Police Outpost Umrali falling within the jurisdiction of PS Sondwa and lodged the first information report Ex. P-1 recorded by PW 7 B.N. Basawe. On the basis of this report, Crime No.10/90 under section 302/34 of the Indian Penal Code was registered and on the basis of the report in Police Station Sondwa another first information report Ex. P-14 was also recorded vide Crime No. 38/90. Station House Officer PW 7 B.N. Basawe reached the spot and in the presence of the witnesses, prepared the inquest of the dead bodies of Dalla and Kesribai vide Ex. P-3 and P-4 respectively. He also drew the spot map Ex. P-5 and seized the blood-stained and controlled earth from the place of incident. Thereafter he sent the dead bodies for postmortem examination to Primary Health Centre, Umrali which was performed by PW 6 Dr. 3 K.C. Gupta. P-3 and P-4 respectively. He also drew the spot map Ex. P-5 and seized the blood-stained and controlled earth from the place of incident. Thereafter he sent the dead bodies for postmortem examination to Primary Health Centre, Umrali which was performed by PW 6 Dr. 3 K.C. Gupta. He proved the post-mortem report Ex. P-15 and P-16 of deceased Kesribai and Dalla respectively. After due investigation, the respondents were chargesheeted for the offence as mentioned hereinabove. 3. The respondents denied the charges. According to them, they were falsely implicated. They examined two witnesses Tehnsia and Naharia their defence whereas the prosecution examined in total seven witnesses and adduced 12 documents. Learned trial Court after hearing the parties, acquitted the respondents. It is against this judgment of acquittal that the State has come up in this appeal. 4. We have heard learned counsel for the parties and also perused the entire record and we are of the firm view that the impugned judgment and finding of acquittal passed by the learned trial Court does not suffer from any perversity. The learned trial Court appreciated the evidence in its proper perspective and we do not find any substance to differ from the impugned judgment and finding of acquittal. 5. The prosecution case is based solely on the solitary testimony of eye witness PW 1 Kunwarsingh son of the deceased who has given contradictory statements, on material particulars. In examination-in-chief he has stated that because of fear he had hidden himself behind the cot and saw the incident. In cross-examination para 5 he has described the situation of his house. According to this witness, house is pucca house constructed by bricks. In front of the house, there was a fencing of bushes and ajhapla (a shade made of grass and bamboo) was situated by the side of the fencing. After the jhapla there was a pastal (long varandah) attached to the cattle room where four bullocks were tied. After the cattle room, kitchen was situated and between pastal (long varandah) and kitchen, there was cattle room. In the night before going to bed, they switched off the light (may be an electric bulb or kerosene lamp light). But he has stated that there was moonlight available all over in the house. After the cattle room, kitchen was situated and between pastal (long varandah) and kitchen, there was cattle room. In the night before going to bed, they switched off the light (may be an electric bulb or kerosene lamp light). But he has stated that there was moonlight available all over in the house. In para 7 at one place he has stated that it was a dark night and at other place deposed that moon was also rising. He was confronted with his case diary statement Ex. D-1 where he has not mentioned that he had seen the murderous assault made by the respondents on the persons of his father and mother. He failed to assign any reason for this material omission. In para 11 he was also confronted with his case diary statement Ex. D-l wherein the fact of witnessing the incident by this witness after hiding himself behind the cot has not been mentioned. This fact is not mentioned in his case diary statement Ex. D-1. He has changed his statement on putting this omission and stated that he silently went to the kitchen room and witnessed the incident while sitting on the stairs. The learned trial Court considered all these aspects in detail and held that from the kitchen room, this witness could not see the incident because according to his own version, in between pastal (long verandah) and kitchen room there was a cattle room. The learned trial Court also held that this position has not been properly explained by this witness. In para 13, this witness has stated that Jhimlia (PW 3), Tehnsia and one Nansingh had also witnessed the incident, but this is not the prosecution case. 6. Jhimlia (PW 3) has turned hostile. PW 4 Rupla says Kunwarsingh did not disclose that his father and mother were killed. Nansingh and Tehnsia have not been examined by the prosecution. According to this witness, immediately after the incident he went to PW 4 Rupla and disclosed the names of the respondents but according to PW 4 Rupla, Kunwarsingh had not disclosed the names of the respondents he simply disclosed that his father and mother were killed. Thereafter this witness reached at the house of PW 1 Kunwarsingh and saw the dead bodies of Dalla and Kesribai and went to the police station to lodge the report. Thereafter this witness reached at the house of PW 1 Kunwarsingh and saw the dead bodies of Dalla and Kesribai and went to the police station to lodge the report. PW 1 Kunwarsing in cross-examination para 16 has stated that after the incident he and his brother Juwansingh and Naharia were given shelter by PW 2 Tersingh Sarpanch. The defence has given suggestion to this witness that at the instance of Tersingh he became a witness of the incident and implicated the respondents whereas the deceased persons were assaulted by Rupla, Versingh and Janglia, nephew and brother of PW 2 Tersingh. The defence has also given the suggestion to PW 2 Tersingh which was not specifically denied by Tersingh that the daughter of his nephew Janglia named Kandli was pregnant because of Juwansingh, the son of the deceased persons and thereafter Juwansingh left the village and went to Gujarat, and because of that his nephew and brothers committed the murder of mother and father of Juwansingh and, PW 1 Kunwarsingh and he falsely implicated the respondents on account of the land dispute for which the dispute was lodged in the Revenue Court. 7. PW 4 Rupla, though has turned hostile, but in cross-examination did not deny about the pregnancy of the daughter of his brother Janglia because of co-habitation with Juwansingh, son of the deceased persons and Juwansingh went to Gujarat. He has given evasive reply as given by his brother PW 2 Tersingh. This witness in para 7 has stated that after the incident in the night, PW 2 Tersingh, Versingh, Jangalia and Dundla were thinking as to whose name should be disclosed in the report as the author of the crime. On the next date, in the morning PW 2 Tersingh his brother and PW 1 Kunwarsingh, left the village for lodging the report. In para 8, he has deposed that Versingh was the village Chowkidar and Tersingh was the Sarpanch of the village and in the whole night they had no talk about the names of the assailants. Neither Tersingh nor Kunwarsingh disclosed the names of the assailants. He has also stated that he has good relations with Jhimlia. Nansingh, Tehnsia and Versingh and Janglia were taken to the police station by the Station House Officer. Neither Tersingh nor Kunwarsingh disclosed the names of the assailants. He has also stated that he has good relations with Jhimlia. Nansingh, Tehnsia and Versingh and Janglia were taken to the police station by the Station House Officer. This witness has also admitted that PW 1 Kunwarsingh and his brother were residing in the house of Sarpanch Tersingh (PW 2) after the incident. 8. The learned trial Court has also considered that the intervening night of 12th and 13th April 1990 was not a full moon night but it was a dark half month and the time of q rising of moon was about 9:00 p.m. However, the moonlight could not be available inside the house where the incident had taken place and PW 1 Kunwarsingh claimed to have witnessed the incident. We have also considered this aspect and we are in full agreement with the finding of the learned trial Court arrived at in para 12 of the judgment impugned. 9. In para 17, the learned trial Court has considered that the defence version appears to be probable that the Sarpanch Tersingh saved his brother and nephew who in fact were having axe to grind against the deceased persons and after giving thought over the matter and taking into confidence PW 1 Kunwarsingh, minor son of the deceased persons, aged about 12 years, concocted a false case against the respondents with whom he had land dispute. In para 20 the learned trial Court has given finding which is supported by the evidence available on record that there was no motive for the respondents to commit the murder of deceased persons whereas Tersingh Sarpanch was having ill-will with the deceased persons family because his grand daughter became pregnant by the son of the deceased who left the village and went away to Gujarat. The learned trial Court has also considered that the incident occurred in the night at 1:00 a.m. The distance of police outpost where the report was lodged is shown as six kilometers and the witnesses have stated that son of the Sarpanch was having a motorcycle. Even then the report was lodged the next day at 10:00 a.m. i.e., after about 8-9 hours and for this delay, no reasonable and plausible explanation has been offered by the prosecution. Even then the report was lodged the next day at 10:00 a.m. i.e., after about 8-9 hours and for this delay, no reasonable and plausible explanation has been offered by the prosecution. The positive admission of Rupla (PW 4) who has not been re-examined by the prosecution that in the night PW 1 Kunwarsingh did not disclose the name of any of the assailants and Sarpanch and Chowkidar were thinking as to whose name should be disclosed in the report. 10. The learned trial Court has also taken into consideration, and rightly so, the fact of giving shelter to PW 1 and his brother by PW 2 Tersingh, village Sarpanch which shows that PW 1 Kunwarsingh was made to give statement against the respondents and PW 1 Kunwarsingh right from the date of incident was under the influence of Tersingh who was having bad blood with the family of the deceased. 11. The law of inteference in appeal against acquittal is very well enunciated by the apex Court that the view taken by the trial Court appears to be just and proper and based on material on record, who has full opportunity to watch the demeanour of the witnesses, should not be interfered with unless and until there is perversity in the judgment of acquittal. It is also held by the Supreme Court that if two views are reasonably possible then the view in favour of the accused shall prevail and in such situation, the judgment of acquittal should not be interfered with. 12. In the light of the aforementioned factual and legal discussion we are of the opinion that there is no substance in this appeal of the State against acquittal. Therefore the same is hereby dismissed.