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2007 DIGILAW 302 (MP)

Prakash S/O Rama Bhil v. State Of M. P.

2007-03-14

MANJUSHA P.NAMJOSHI, S.L.KOCHAR

body2007
JUDGMENT : S. L. KOCHAR, J. The appellants have come up in appeal aggrieved with the judgment of conviction and sentence rendered against them by learned II ASJ, Dhar in Sessions Trial No. 479/1996, judgment dated 17-9-1997 by which he convicted the appellants under sections 147, 148, 323/149, 302/149 of the Indian Penal Code and sentenced them to undergo one year RI with fine of Rs. 500/-; in default of payment of fine to undergo two months additional sentence under section 148 of the Indian Penal Code, one year RI with fine of Rs. 500/- and in default of payment of fine to undergo three months RI under sections 323/149 of the Indian Penal Code and RI for life and fine of Rs. 1000/- and in default of payment of fine to undergo two years additional RI under section 302/149 of the Indian Penal Code. 2. Tersely the essence of the prosecution case as unfolded before the trial Court is that on 16-7-1996 witness Ramesh (P.W.3) and deceased Dhansingh were returning back from Dhar to their village Delmi. In the evening at 5.00 pm when they were going on a village road to their house and reached on square near the house of appellant No. 3 Ramsingh the appellant No. 1 Prakash, appellant No. 2 Kailash and appellant No. 3 Ramsingh having lathis, deceased appellant Rama and appellant No. 4 Jalamsingh having stones reached near them and attacked on witness Ramesh (P.W.3) and deceased Dhansingh. Deceased-appellant Rama and Jalamsingh assaulted Ramesh by stones, causing injury on his lip, cheek and head. At the same time appellants Prakash, Ramsingh and Kailash assaulted him by lathis, causing injury on head, back, hands, legs and other parts of the body. Deceased Dhansingh was assaulted by stone by deceased-appellant Rama and appellant No. 4 Jalamsingh. He was also assaulted by appellants Prakash, Ramsingh and Kailash, causing injury on head, nose, face, legs by lathis. They were assaulted because of quarrel which took place 4-5 days prior to the date of incident between Ramesh (PW.3) and brother of appellant Prakash named Ramesh. Upon hearing the yell of quarrel, Radhu @ Radheshyam (PW.4), father of Ramesh (PW.3) and brother-in-law of deceased Dhansingh and wife of Ramesh named Annabai reached over there and defended them. Injured Ramesh and Dhansingh were immediately shifted to Dhar Hospital where Dr. Upon hearing the yell of quarrel, Radhu @ Radheshyam (PW.4), father of Ramesh (PW.3) and brother-in-law of deceased Dhansingh and wife of Ramesh named Annabai reached over there and defended them. Injured Ramesh and Dhansingh were immediately shifted to Dhar Hospital where Dr. Anil Verma (PW.1) examined them and also sent written report (Ex.P.1) as well as telephonic message to P.S, Dhar. SHO D. S. Bilval (PW.6) with ASI Rajendrasingh (PW.7) reached at the hospital. D. S. Bilval (PW.6) recorded dehati nalishi (Ex.P.7) at the instance of Ramesh (PW.3) and Rajendrasingh Chouhan (PW.6) effected seizure of blood stained shirt of Radheshyam and shirt and paijama of Dhansingh through seizure memo (Ex. P.8 and P.17) respectively. He also immediately proceeded for the place of incident and after reaching seized blood stained earth and controlled earth vide seizure memo (Ex.P.18). Dehati Nalishi was sent to P.S Dhar on the basis of which FIR was registered (Ex.P.9). Shri Bilval (PW.6) prepared spot map (Ex.P.10) at the instance of Annabai, wife of Ramesh (PW.3) and also recorded the statements of witnesses Ramesh, Annabai, Dinesh and Radhu @ Radheshyam. The appellants were arrested and lathis were seized from appellant Ramsingh, deceased appellant Rama and appellant No. 2 Kailash. Dr. Anil Verma (PW.1) examined Ramesh (PW.3), deceased Dhansingh and issued medical reports Ex.P.2 and Ex.P.3, Deceased Dhansingh was shifted for further treatment to M.Y. Hospital, Indore where he died on 26-7-1996. His death was reported to Sanyogitaganj police station, Indore where murg No. 288/1996 (Ex.P.20) was registered and after preparation of inquest (Ex.P.21) dead body was sent for post-mortem examination which was conducted by Dr. N. M. Unda (PW.8) who proved post-mortem report (Ex.P.19). After necessary investigation, appellants with deceased co-accused/appellant Rama were charge-sheeted for the abovementioned offences. 3. The appellants denied the charges, therefore, put on trial. They examined Dr. Anil Verma (DW.1) and also submitted in their accused statements that complainant Ramesh, his father witness Radhesyam and deceased Dhansingh assaulted them and ran away. They sustained injury in the incident and were falsely implicated in the case. They also filed certified copy of the medical report (Ex.D.5 and D.6) of appellant Jalamsingh and Ramsingh. Medical report of appellant Prakash has been proved by Dr. Anil Verma (DW.1) vide Ex.D.1-C. The learned trial Court, found the appellants guilty, convicted them as mentioned hereinabove. 4. They sustained injury in the incident and were falsely implicated in the case. They also filed certified copy of the medical report (Ex.D.5 and D.6) of appellant Jalamsingh and Ramsingh. Medical report of appellant Prakash has been proved by Dr. Anil Verma (DW.1) vide Ex.D.1-C. The learned trial Court, found the appellants guilty, convicted them as mentioned hereinabove. 4. We have heard the learned counsel for parties and also perused the entire record carefully. We gather from the record that conviction of the appellants is based mainly on the eye witnesses account of Ramesh (PW.3), his father Radhu @ Radheshyam (PW.4) and mother Tarabai (PW.5) as well as evidence of medical experts. 5. The learned counsel for appellants has not disputed the homicidal death of deceased Dhansingh. Even otherwise same is fully proved from the evidence of Dr. N. M. Unda (PW.8) and Dr. Anil Verma (PW.1) who attended the deceased first in time and found six injuries on his person. Injury No. 1 contusion and swelling surrounding the right eye, swelling on the nose and bleeding, swelling on both the ear and bleeding, lacerated wound "½ cm x "½ cm on nose, abrasion 5 x "¼ x "¼ cm on left thigh, incised wound 1 x "½ x "¼ cm above injury No. 5 i.e. on left thigh. He proved his medical report (Ex.P.3). In the opinion of this Doctor deceased sustained injuries number one to five by hard and blunt object and number six by hard and sharp object. His condition was not good, therefore, immediately referred to Indore for further treatment. 6. Autopsy surgeon Dr. N. M. Unda (PW.8) found four stitched wounds, two healed wounds and on internal examination, fracture of nose and frontal bone, multiple fracture of parietal bone as well as depressed fracture within area of 5 x 4 cm. He also found fracture of temporal bone. In his postmortem report at page 4(B) he prepared the figure of face and skull showing all these fractures. There was extra dural and sub dural haematoma in the cavity of skull as well as subordinate haemorrhage in the brain. Brain was swollen and contused at the place of depressed fracture, fracture of right mandible bone. In his opinion, injury number four stitch wound on left thigh could be by sharp edged weapon. Injuries were caused within one to two weeks from the date of incident. Brain was swollen and contused at the place of depressed fracture, fracture of right mandible bone. In his opinion, injury number four stitch wound on left thigh could be by sharp edged weapon. Injuries were caused within one to two weeks from the date of incident. Injuries were sufficient in ordinary course of nature to cause death and deceased died because of cardio respiratory failure due to injuries. 7. Now it is to be seen whether all the three eye witnesses are reliable or not. Eye witnesses are interested and partisan. Ramesh (PW.3), Radhu @ Radheshyam (PW.4) and Tarabai (PW.5) are nephew, brother-in-law and sister of the deceased respectively. There is no independent witness examined by the prosecution. Name of Tarabai (PW.5) is not mentioned in the FIR and name of Annabai mentioned in the FIR has not been examined. The legal position is very well settled on this aspect by plethora of Apex Court judgments that evidence of interested and partisan witnesses must be scrutinized with due care and caution. Keeping in mind this legal position now we consider the statements of eye witnesses. 8. Ramesh (PW.3) has deposed that when he and deceased Dhansingh reached in front of the house of appellant Kailash they were attacked by appellants Kailash, Ramsingh, deceased-appellant Rama, appellant Jalamsingh and one Tillu. It would be apposite to mention here that Tillu has not been arrayed as accused. His name was also not mentioned in the FIR as well as in the case diary statements. Tillu, appellant Ramsingh and Kailash were having axe, farsa and dharia. Rest appellants were having lathis. This witness was assaulted by lathi and stones. In para two, the say of this witness is that deceased-appellant Rama assaulted deceased Dhansingh by gupti, appellant Kailash caused injury on right side of the skull above ear, appellant Ramsingh caused injuries by farsa on face and nose whereas Tillu caused injuries by axe on leg and hands of deceased. In para five, this witness disowned lodging of FIR (Ex.P.7). According to him he had signed on the FIR and did not put the thumb impression. FIR (Ex.P.7) was shown to him and he denied lodging of this FIR and stated that he specifically mentioned in the FIR about weapons. In para 12 he admitted about registration of counter case against him and other persons under section 307 of the Indian Penal Code. FIR (Ex.P.7) was shown to him and he denied lodging of this FIR and stated that he specifically mentioned in the FIR about weapons. In para 12 he admitted about registration of counter case against him and other persons under section 307 of the Indian Penal Code. Again in para 13 he has stated that he is knowing reading, signing and does not put thumb impression. Again in para 14 he emphasized regarding signing on the report and that he had seen appellant Prakash admitted in the hospital. He was confronted with his case diary statement (Ex.D.1) in which there is no mention of fact that he was having dispute of road with the accused persons and accused persons were having dharia, farsa and name of Tillu. He failed to assign any reason for these omissions which amounts to contradictions. 9. Radhu (PW.4) has deposed that appellants and deceased-appellant Rama attacked on Ramesh (PW.3) and Dhansingh having dharia, farsa, sword and gupti. One Tillu was having dharia. Jalam, Kailash were having dharia and axe, rest were having lathis. In para four he expressed his ignorance as to why deceased and his son Ramesh (PW.3) were assaulted. In para eight he admitted facing of criminal case for assaulting appellant Prakash but according to him Dinesh was not in the said incident. He admitted the incident of Marpit with Prakash by him and two persons. He also accepted admission of Prakash in the hospital when Dhansingh was admitted for treatment. In para 14 he has deposed that the original case diary of this case fell in the water and flown away and thereafter fictitious diary was prepared. Their original true statements flown away in the water and false statements were prepared. This was told to him by the SHO but second time their statements were not recorded. In para 15 the say of this witness is that he did not disclose about loss of case diary to his private counsel Shri Joshi and disclosed this fact for the first time in the Court. He failed to explain material omission and contradiction in his case diary statement (Ex.D.2) regarding causing of injury on the nose of deceased Dhansingh by Kailash by farsi, deceased-appellant Rama by gupti, Tillu by farsi and Ramesh (PW.3), after running upto some distance fell down as well as he was witnessing the incident after hiding himself behind the tree. He failed to explain material omission and contradiction in his case diary statement (Ex.D.2) regarding causing of injury on the nose of deceased Dhansingh by Kailash by farsi, deceased-appellant Rama by gupti, Tillu by farsi and Ramesh (PW.3), after running upto some distance fell down as well as he was witnessing the incident after hiding himself behind the tree. 10. Tarabai (PW.5) has deposed that her son Ramesh (PW.3) and brother - deceased Dhansingh were going to their room, the appellant came from opposite direction along with Tillu, Kalabai and Sarjubai. It is apposite to mention here that Tillu, Kalabai and Sarjubai were not the accused in this case. The further say of this witness is that appellant Prakash caused injury on left side of the neck of Dhansingh, resulting into his fall, thereafter deceased appellant Rama stabbed gupti in the head of Dhansingh which remain embedded. Tillu assaulted by farsi. He chopped off left hand and leg of Dhansingh. Nablibai, Kalabai and Sarjubai assaulted deceased by big stones on his head. Her son Ramesh (PW.3) was assaulted by farsa, dharia and sword. In para four she expressed her ignorance as to why accused persons had assaulted them and in the same breath stated that before seven days her son Ramesh (PW.3) was assaulted by the appellants, because of this inimical term accused persons had assaulted them. In para five she admitted of recording of her statement by police but in para eight denied and said that she was never interrogated by police. Again voluntarily she deposed that she was interrogated by police in Indore. She denied mentioning of the fact in her police statement (Ex.D.3) about reaching of Dinesh on the spot and failed to explain material omissions and contradictions in her case diary statement (Ex.D.3) about possession of sharp edged weapons like dharia, gupti and farsi by appellant Prakash, deceased-appellant Rama and appellant Jalam as well as causing of injury to Dhansingh by Ramsingh, Prakash, Kailash and Ramesh by farsi, dharia and sword as well as chopping off or cutting of hand and leg of deceased Dhansingh. 11. On perusal of the statements of all the three eye witnesses, it is as clear as day light that they have given altogether a different story about the incident as put forth in the charge-sheet. 11. On perusal of the statements of all the three eye witnesses, it is as clear as day light that they have given altogether a different story about the incident as put forth in the charge-sheet. They have named four more persons who were not prosecuted along with the appellants, those are Tillu, Nablibai, Kalabai and Sarjubai. Ramesh (PW.3) disowned the important document FIR (Ex.P.7) (Dehati Nalishi) lodged by him. No doubt FIR is not a substantive piece of evidence and same can be used to contradict and corroborate the statement of author of the FIR in Court, but at the same time it assumes importance because on the basis of this, the investigating agency starts investigation and their line of action. The FIR can be used for appreciating the evidence of its lodger. In the instant case Ramesh (PW.3) denied lodging of FIR (Ex.P.7) and no question was put to the recording officer A.S.I D. S. Bilval (PW.6) about the allegation levelled by Ramesh (PW.3). On the contrary Shri Bilval has proved recording of Ex.P.7 as disclosed by Ramesh and putting of his thumb impression. No question was put regarding loss of original case diary to SHO Rajendrasingh Chouhan (PW.7). 12. Supreme Court in the case of Marudanal Augusti vs. State of Kerala, AIR 1980 SC 638 has observed as under :- "The High Court seems to have overlooked the fact that the entire fabric of the prosecution case would collapse if the F.I.R is held to be fabricated or brought into existence long after the occurrence and any number of witnesses could be added without there being anything to check the authenticity of their evidence". 13. In the instant case, the FIR itself has been disowned completely by Ramesh (PW.3) and Radhu (PW.4) has gone upto the extent of saying that case diary fell in the water and flown away. There is no evidence to check the authenticity of the evidence of all the three eye witnesses, therefore, we have no hesitation to hold that they are not at all reliable witnesses. 14. Privy Council considered importance of FIR in case of Emperor vs. Khan Nazir Ahmed, AIR 1945 PC 18 has held as under :- "FIR is based upon the earliest version of a cognizable offence. 14. Privy Council considered importance of FIR in case of Emperor vs. Khan Nazir Ahmed, AIR 1945 PC 18 has held as under :- "FIR is based upon the earliest version of a cognizable offence. The object of the FIR is to obtain early information of alleged criminal activity, to record the circumstances before there is time for them to be forgotten and embellished". 15. In the context of the statements of all the three eye witnesses if we peruse the statement of Dr. Anil Verma (PW.1) who examined Ramesh (PW.3) and also proved his medical report (Ex.P.2), he found four lacerated wounds, one incised wound on left thigh and one abrasion on the person of Ramesh. He also opined that except incised injury number three, rest injuries were caused by hard and blunt object and all the injuries were simple in nature. He also found on the person of deceased Dhansingh contusion surrounding to right eye, swelling on the nose, swelling on both the ear, lacerated wound on the nose and abrasion of left thigh. He proved medical report of deceased as Ex.P.3. Out of six injuries, five injuries could be caused by hard and blunt object and injury number six could be caused by hard and sharp object. 16. Dr. N. M. Unda (PW.8), autopsy surgeon also opined that only one injury was found on the person of deceased i.e. on left thigh caused by sharp edged weapon. The medical evidence of both the Doctors is completely at variance with the eye witnesses account regarding use of sharp edged weapon causing injury to deceased and Ramesh (PW3) like dharia, farsi, axe and gupti. All the three eye witnesses not only exaggerated this fact but changed the complexion of the case. They have disowned the original prosecution story in FIR as well as their respective case diary statements discussed hereinabove. Though, it is the duty of the Court to separate the grain from the chaff, but in the instant case both are so inextricably mixed, therefore, cannot be separated. The four new names have been added during the course of trial by the eye witnesses who played major role for causing Injuries to deceased as well as the injured witness Ramesh (PW.3). The four new names have been added during the course of trial by the eye witnesses who played major role for causing Injuries to deceased as well as the injured witness Ramesh (PW.3). Looking to all these omissions, contradictions and improvements in the statements of the eye witnesses and contradiction with medical evidence, we are unable to place any reliance on the testimony of all the three eye witnesses who are highly interested and partisan. 17. As a result of legal and factual discussion hereinabove, this appeal is allowed. Conviction and sentence of the appellants are hereby set aside. Appellants are on bail. Their bail bond and surety bond stand discharged.