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Madhya Pradesh High Court · body

2008 DIGILAW 879 (MP)

Ramesh S/o Pyara Mali v. State Of M. P.

2008-07-16

MANJUSHA P.NAMJOSHI, S.K.KULSHRESTHA

body2008
JUDGMENT : S.K. KULSHRESTHA, J. The above two appeals assail the judgment dated 1-5-1999, passed by the Ist Addl. Sessions Judge, Mandsaur in Sessions Trial No. 218/98, whereby he has convicted the appellants under section 302 read with section 149 of the Indian Penal Code and each has been sentenced to imprisonment for life and fine of Rs. 1,000/-, accused Gudda @ Dashrath has also been convicted under section 147 and sentenced to 6 months RI while the other accused in addition, have been convicted under section 148 of the Indian Penal Code and each has been sentenced to 9 months RI. The benefit of section 428 of the Criminal Procedure Code has also been extended. 2. Initially, Cr. A. No. 632/1999 was filed on behalf of the above accused but on Cr. A. No. 682/1999 having been filed by Banesingh and Gudda @ Dashrath, their names were deleted from the cause title of Cr. A. No. 632/1999, vide order dated 15-9-1999 passed by this Court. 3. According to the case of the prosecution, a day prior to the date of the incident in which Laxminarayan was murdered, i.e., on 8-9-1998, the vegetable grown in the field of complainant Madan had been taken away by his neighbour Shyamu and his servant Laxminarayan Gurjar. A quarrel had, therefore, ensued between them. The next day i.e., on 9-9-1998, at about 7:00 a.m., while complainant Madan and his father Laxminarayan were grazing their buffaloes near their field, accused Ramesh, Banesingh, Gudda, Shyamu and Laxminarayan approached them brandishing Lathis while others were carrying stones. Banesingh asked him why he had beaten Shyamu and Laxminarayan to which his father deceased Laxminarayan had replied that because they had cut the creepers, they were chastised. The six persons named above, then started pelting stones and administered beating with Lathis (sticks). Finding the hostile demeanour of the accused persons, father of the complainant shouted for help, and complainant ran away and reached Suvasra on foot. At Police Station Suvasra he informed about the incident and stated that his father was lying by the side of his field with blood coming out from various injuries. On the basis of the said report Ex. P/2, a case under sections 307, 147, 148 read with section 149 of the Indian Penal Code was registered. 4. Investigation was conducted by A. K. Yadav (PW 7), S.H.O., P. S. Suvasra. On the basis of the said report Ex. P/2, a case under sections 307, 147, 148 read with section 149 of the Indian Penal Code was registered. 4. Investigation was conducted by A. K. Yadav (PW 7), S.H.O., P. S. Suvasra. He proceeded to the spot and held inquest of which memo Ex. P/3 was prepared. Spot map Ex. P/4 was prepared and the samples of blood stained and control earth were taken. During investigation, the accused persons were arrested and on the basis of the information furnished by them, sticks were recovered vide memo Ex. P/8 to P/10. The seized articles were sent to the Doctor for his opinion and the Doctor, vide Ex. P/14 gave opinion that from the lathis seized, some of the injuries could have been caused. With regard to the other injuries i.e., injury No. 10 and 11, it was stated that the same could have been caused by a sharp weapon or a sharp stone could also have caused such an injury. Since accused Shyamu @ Shyamlal and Laxminarayan were juvenile on the date of the incident, they were forwarded to the Juvenile Court while the present appellants were tried before the learned Addl. Sessions Judge, Mandsaur. On charges being framed against the accused persons under sections 148, 302 and 302/149 of the Indian Penal Code, the accused denied having committed any offence and stated that they had been falsely implicated. It was also pointed out that the deceased was a person of criminal propensity and had been assaulted by unknown persons. In their defence, Goverdhan (DW 1) was examined. However, on trial, the learned Judge convicted and sentenced them as stated hereinabove and it is against this conviction and sentence that these appeals have been filed which are being decided by this common judgment. 5. Learned counsel has submitted that Vishnu Singh (PW 1) having not supported the prosecution, the only surviving eye witness in the case is Madan (PW 2) who is the son of the deceased and who had allegedly lodged FIR (Ex. P/2). Learned counsel, therefore, submits that in the case of solitary eye witness and more so, a partisan one, the law requires that his testimony should be of sterling quality and beyond reproach. P/2). Learned counsel, therefore, submits that in the case of solitary eye witness and more so, a partisan one, the law requires that his testimony should be of sterling quality and beyond reproach. Since there is no corroboration available from any source in support of the statement of Madan (PW 2), learned counsel contends that the judgment of conviction deserves to be set aside. Mr. G. Desai, learned Dy. Advocate General, per contra, submits that the law does not require multiplicity of witnesses and if on the basis of the testimony of Madan (PW 2), the case of the prosecution can be believed, coupled with the FIR lodged by him, no interference is necessary in the judgment of the trial Court and the appeal deserves to be dismissed. 6. We have heard the learned counsel for the parties and perused the record. It is true that the only eye-witness examined is Madan (PW 2) as the other eye witnesses have turned hostile and Madan being not only the solitary witness but also the son of the deceased, his testimony requires minute scrutiny to elicit whether it passes the test of being of sterling quality. 7. Madan (PW 2) has deposed that prior to the incident dated 9-9-1998, an incident had taken place in which Shyamu and Laxminarayan had stolen their crop and on his challenging them, they have run away. On 8-9-1998, in the evening, his father had returned after attending the Court date and when he went to Suvasra to lodge complaint, the police asked him to bring a written complaint but since his father did not have any money, they had returned to their well. 8. The next day at about 7.00 a.m., the accused persons and the juvenile accused came to the well. Accused Banesingh and Ramesh reprimanded them and asked why they keep beating small boy and stating that they should be finished, all of them started pelting stones. One of the stones struck his father as a result thereof he fell down. The other persons then started assaulting him with Lathi and thereafter, after throwing their 'lathis', they picked up big stones and attacked the deceased with them. Accused Ramesh stated that he, the witness, has managed to escape and, therefore, he should also be done to death. He, therefore, left the place and went to P. S. Suvasra. The other persons then started assaulting him with Lathi and thereafter, after throwing their 'lathis', they picked up big stones and attacked the deceased with them. Accused Ramesh stated that he, the witness, has managed to escape and, therefore, he should also be done to death. He, therefore, left the place and went to P. S. Suvasra. In Suvasra he met Goverdhan (DW 1) in the Tehsil and narrated the incident to him. Goverdhan gave a written report to him as per his version and he took it to the Police Station. The said report was received by the Head Constable who abused him. His report was not taken down with the result he came back to his well on his bicycle where his father was lying dead. Thereafter, he lodged report Ex. P/2 at the Police Station. After the report was lodged, the S.H.O. came to the spot and prepared memo Ex. P/3 and spot map Ex. P/4 in his presence. 9. Learned counsel for the appellant submits that there are inherent discrepancies in the testimony of this witness. While he has stated that these persons have attacked with stones and sticks, a glance at his post-mortem report Ex. P/12 would bear out that out of 15 injuries sustained by him, injury Nos. 10, 11, 12 and 13 were incised wounds caused by hard and sharp substance, while the other injuries were injuries caused by hard and blunt object. Nothing has been shown by this witness as to how the deceased received 4 incised wound when the attack was by means of Lathi and Stones. We may also refer to the testimony of S.H.O. A. K. Yadav (PW 7) who conducted the investigation. He has stated that if any blood stained stone had been noticed at the spot, he would have certainly seized it. He has also admitted that the sticks which were seized were not blood stained. Under these circumstances, neither the sticks nor the stones give any indication of having been used in the commission of the alleged offence. It, therefore, creates a grave doubt about the sanctity of the testimony of Madan (PW 2). 10. He has also admitted that the sticks which were seized were not blood stained. Under these circumstances, neither the sticks nor the stones give any indication of having been used in the commission of the alleged offence. It, therefore, creates a grave doubt about the sanctity of the testimony of Madan (PW 2). 10. It has also been brought to our notice that although he says that Ex.P/2 was recorded in accordance with his statement, but he has not been able to explain as to why the fact of death of his father was not mentioned in the report. He has stated that what was reported in the written report was that his father had died as a result of the assault but the said fact was not mentioned in FIR Ex.P/2. If the testimony of Goverdhan (DW 1) Petition Writer and Stamp Vendor, Suvasra is considered apposite the said omission in the FIR, it clearly transpires that when Madan had come to him and informed him that his father had been killed and he wanted that he should write the report, he had stated that he will not write the report and that he should proceed to the Police Station but when he was asked to write down the report, he had written the report in two copies and given them to him. He has also given statement that witness Madan had informed him that he had not identified the assailant but the said statement appears to be on account of his over-zealousness to help the accused. Under these circumstances, the only fact that is corroborated by his testimony is the statement of Madan (PW 2) that he had lodged the report and given it to the Head Constable. Learned counsel submits that since Head Constable has not been examined and the said report has not been produced, the defence has been deprived of a very important piece of evidence and it is only on account of the fact that the written report was not favourable to the prosecution, the said report has been suppressed. It has been admitted by Madan (PW 2) that he reached Suvasra after 2 hours of the incident and thereafter he came back to his village on bicycle. The distance between the Police Station and his well was hardly 2 to 3 KMs and it took 30 minutes. It has been admitted by Madan (PW 2) that he reached Suvasra after 2 hours of the incident and thereafter he came back to his village on bicycle. The distance between the Police Station and his well was hardly 2 to 3 KMs and it took 30 minutes. At this juncture A. K. Yadav (PW 7) arrived and commenced investigation. He has stated that he had told the Police Officer the details of the incident. The SHO then brought his father for post-mortem to Suvasra and at that time he had recorded Ex. P/2 at 4.00 p.m. FIR Ex. P/2 shows that the report was lodged at 1:30. Learned counsel submits that even if the testimony of Madan (PW 2) is omitted insofar as it says that the report was lodged at 4:00 p.m., even the report at 1:30 p.m., was belated for which no explanation has been given, much less plausible. In this connection reference has been made by the learned counsel to the decision of the Supreme Court in Ramesh Baburao Devaskar and ors. vs. State of Maharashtra, 2008 Cri.L.J. 372 that First Information Report is a valuable piece of evidence and although it may not be substantial evidence, the reason for insisting of lodging of First Information Report without undue delay is to obtain the earlier information with regard to the circumstances in which the crime had been committed, the names of the accused, the parts played by them, the weapons which had been used as also the names of the eye witnesses. Learned counsel, therefore, submits that as a written report was submitted, the complaint had the opportunity to come back to the place of the incident where investigation was done by the Police Officer A. K. Yadav (PW 7) to whom he had narrated the incident and thereafter when he was taken to Suvasra, report was lodged. This does not explain the delay but indicates that the complainant and the SHO had sufficient time to examine the situation in minute detail and then to take necessary steps to record the FIR. Under these circumstances, the testimony of Madan (PW 2) does not find corroboration from the FIR lodged by him. The said doubt is further strengthened by the fact that the earlier report was not brought on record nor the Head Constable to whom it was given was examined. Under these circumstances, the testimony of Madan (PW 2) does not find corroboration from the FIR lodged by him. The said doubt is further strengthened by the fact that the earlier report was not brought on record nor the Head Constable to whom it was given was examined. Instead A. K. Yadav (PW 7) has denied having received any such report. 11. Both Madan (PW 2) and his father Laxminarayan appear to be notorious who have faced a large number of cases. In paragraph 10 of his deposition, Madan has admitted that the Police treated them as habitual offenders and so was the case with his father. He has specifically admitted that he had faced prosecution for theft but the said case already stood decided. He has also stated that his father had been indicted for theft in a number of cases but the cases had been rigged up. 12. He has, however, not been able to say whether Kanjars commit offences of robbery and theft. He has admitted that in the vicinity number of incidents of theft take place but it was not true that his father was killed by unknown offender. 13. From the testimony of Madan (PW 2) who is the solitary witness, it is clear that right from the very beginning he has been attempting to modulate the prosecution story which is manifest from the fact that first he had gone to the document writer to get a complaint in writing and had given it to the Head Constable who was not examined. After the report had been handed over to the said Head Constable he had come back to the spot where part of the investigation was carried out in his presence and he had even narrated the event to the SHO and if the SHO was of the view that written report had not been received in the Police Station, he would have certainly recorded Dehati Nalish on the spot. This was not done and the complainant was taken to Suvasra along with the dead body of his father and at this point of time that FIR was recorded. Under these circumstances, FIR is not helpful to the prosecution. We have stated above that in the case of a solitary witness the evidence should be of sterling quality. This was not done and the complainant was taken to Suvasra along with the dead body of his father and at this point of time that FIR was recorded. Under these circumstances, FIR is not helpful to the prosecution. We have stated above that in the case of a solitary witness the evidence should be of sterling quality. The flaws and infirmities pointed out above clearly indicate that without corroboration from any other source, no reliance can be placed on this witness. The other source is the recovery of the weapon, but since the blood stains were not found either on any stone at the spot or on the Lathis seized by the Investigating Officer, there is no incriminating circumstance from which one could seek corroboration of the testimony of Madan (PW2). Madan (PW2) being an unreliable witness, conviction cannot be sustained. In the result both the appeals are allowed and the conviction of the appellants for the offences aforesaid and the sentence awarded to them is set aside. They are acquired of all the charges. The appellants are on bail. Their bail bonds shall stand discharged.