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Madhya Pradesh High Court · body

2011 DIGILAW 36 (MP)

Sunil Datta, Umesh Datta v. State of M. P.

2011-01-07

M.A.SIDDIQUI, RAKESH SAKSENA

body2011
JUDGMENT Rakesh Saksena, J. 1. Appellants have filed this appeal against the judgment dated 24.2.2001, passed by First Additional Sessions Judge, Katni, in Sessions Trial No. 301 of 1999, convicting them under Sections 302/ 34 of the Indian Penal Code and sentencing them to imprisonment for life with fine of Rs. 2500/- each. In default of payment of fine, further rigorous imprisonment for six months. 2. In Short, the prosecution case is that on 11.1.1999, at about 5.00 p.m., complainant Yadvendra went at the medical dispensary of his brother Dr. Subhash (deceased). While he was sitting there, Dr. Subhash taking syringe went out of the dispensary. After sometime, Yadvendra hearing some noise, went towards Matwara. He saw Appellants assaulting Dr. Subhash by shoes, stick, stone and kicks. They had stripped him of his clothes. Dr. Subhash was lying on the ground and Sunil and Ballan were pressing his throat after mounting on his chest. Balmiki Pandey also reached there and abused Dr. Subhash and exhorted the Appellants to beat Dr. Subhash. When Yadvendra tried to rescue Dr. Subhash, Appellants ran after him to beat. He, therefore, ran away. Dr. Subhash died on the spot. Yadvendra (PW-5) went to Police Station, Sleemnabad and lodged report (Ex.P/6) at 18.30 Hrs.. A Murg (Ex.P/5) was also registered. Station Officer of Police Station, Sleemnabad, reached at the spot and conducted inquest proceedings. He prepared the spot map and seized shirt, pants and shoes of the deceased from the spot. Body of deceased was sent for postmortem examination to Primary Health Centre, Teori. Dr. P.K. Agrawal (PW-1) performed the postmortem examination of the body and found 7 injuries on his body, vide his report Ex.P/2. All the injuries were caused by hard and blunt object. The cause of death of deceased was shock due to injury on vital parts like brain, lung and liver causing excessive heamorrhage. After recording the statements of witnesses and after further requisite investigation, police filed charge sheet in the court. Case was then committed for trial. 3. Trial Court framed charges under Section 302 of the Indian Penal Code and in the alternative under Section 302/ 34 of the Indian Penal Code. 4. Appellants abjured their guilt and pleaded false implication. According to them, deceased had fallen on stone after consuming liquor, but, due to past enmity, they were falsely implicated. 3. Trial Court framed charges under Section 302 of the Indian Penal Code and in the alternative under Section 302/ 34 of the Indian Penal Code. 4. Appellants abjured their guilt and pleaded false implication. According to them, deceased had fallen on stone after consuming liquor, but, due to past enmity, they were falsely implicated. It was also pleaded that some unknown persons caused the death of deceased, but, due to enmity, brothers of deceased cooked a false story and became the eyewitnesses in the case. Appellant Sanjay pleaded alibi . According to him, at the time of occurrence he was in Mahatma Gandhi Higher Secondary School, Dheemarkheda, which was about 45 Kms. away from the place of incident. He was student of Class XII. He also examined headmaster of the school viz.P.K. Jyotishi (DW-1) in his defence. 5. Learned Additional Sessions Judge, after trial and upon appreciation of the evidence adduced in the case, held the Appellants guilty of intentionally causing death of deceased and convicted and sentenced them under Section 302/ 34 of the Indian Penal Code by the impugned judgment, which has been challenged in this appeal. 6. We have heard the learned Counsel for the parties. 7. It was no longer disputed that deceased died of injuries. Yadvendra (PW-5), Dinesh Tiwari (PW-10), Vijay Kumar (PW-12) and Nagendra (PW-13) deposed that Appellants assaulted deceased, as a result of which he suffered injuries. Yadvendra lodged the first information report (Ex.P/6) with the police informing the death of the deceased. Investigating Officer B.S. Rajput (PW-14) registered the first information report as well as Murg report about the death of deceased. After issuing notices to witnesses, he conducted inquest of the dead body and sent the same for postmortem examination. Dr. P.K. Agrawal (PW-1) conducted the postmortem examination of the dead body and gave his report (Ex.P/2). According to postmortem report, he found following injuries on the body: (1) Reddish brown irregular bruise mark on left side of neck extending upward up to the ear and below up to the right side of shoulder. (2) Irregular bruise mark on the left temporal region reddish brown coloured extending anteriorly. According to postmortem report, he found following injuries on the body: (1) Reddish brown irregular bruise mark on left side of neck extending upward up to the ear and below up to the right side of shoulder. (2) Irregular bruise mark on the left temporal region reddish brown coloured extending anteriorly. (3) Irregular bruise mark reddish brown colour on the right side of chest at the level of 6th, 7th, 8th, 9th costal region in between the axillary line and mammary line extending up to the mid line anteriorly size 12 x 6 cm. (4) Irregular bruise mark reddish brown colour sized 4 x 1.5 cm on the right elbow joint posteriorly. (5) Irregular bruise mark reddish brown colour on the right upper 1/3 part anteriorly sized 3 x 1 cm. (6) Lacerated wound sized 1 x 0.2 cm on the both skin of tibia in the upper 1/3 part deep up to s/c tissue. (7) Lacerated wound sized 2 x 0.2 cm on the left knee joint region anteriorly, deep up to s/c tissue. On internal examination of the injuries, Dr. P.K. Agrawal found fracture of left temporal bone transversely situated. Brain tissue damage and fracture of right 3rd to 10th rib in the axillary line. Blood was found in the pleural cavity. Right middle and lower lobe of lung were ruptured. Injuries found on the body of the deceased were ante-mortem in nature and were caused by hard and blunt object. In the opinion of doctor, cause of death of deceased was shock due to injuries to vital parts like brain, lung and liver causing excessive heamorrhage. The death was caused between 12 to 24 hours prior to postmortem examination. From the above evidence, it was clearly evident that deceased Subhash Dubey died of homicidal injuries. 8. Learned Counsel for the Appellants, however, submitted that the trial court gravely erred in placing implicit reliance on the evidence of alleged eyewitnesses viz. Yadvendra (PW-5), Dinesh (PW-10), Vijay Kumar (PW-12) and Nagendra (PW-13), who were relatives of the deceased. According to him, Yadvendra (PW-5) and Nagendra (PW-13) were real brothers of the deceased, whereas Vijay Kumar (PW-12), Satendra (PW-8) and D.K. Dubey (PW-11) were his cousins. They were on inimical terms with the Appellants because Sarvesh, the son of deceased and witness Surjeet were accused in the murder of Krishna Datt, the uncle of the Appellants. According to him, Yadvendra (PW-5) and Nagendra (PW-13) were real brothers of the deceased, whereas Vijay Kumar (PW-12), Satendra (PW-8) and D.K. Dubey (PW-11) were his cousins. They were on inimical terms with the Appellants because Sarvesh, the son of deceased and witness Surjeet were accused in the murder of Krishna Datt, the uncle of the Appellants. Accused Sunil, Sanjay and Balmik Pandey (absconded accused) were eyewitnesses in the aforesaid case of murder of Krishna Datt. Learned Counsel further submitted that the trial judge misappreciated the evidence of aforesaid eyewitnesses and ignored the material contradictions and inconsistencies found in their evidence. According to him, though the incident occurred in a busy market place in front of the shops, but not a single independent witness was examined in the Court. Learned Counsel for the State, on the other hand, justified and supported the conviction of the Appellants. 9. We have gone through the entire evidence on record. 10. It is undisputed that eyewitnesses Yadvendra (PW-5) and Nagendra (PW-13) are real brothers of deceased and witness Vijay Kumar (PW-12), Dinesh Kumar Tiwari (PW-10) and D.K. Dubey (PW-11) are his cousins. It is not disputed that Subodh and Avinash, who are real brothers of eyewitness Dinesh (PW-10), were accused of murder of Krishna Datt, uncle of deceased. It is also undisputed that the incident occurred in front of the shop of Laxmi Namdeo, which was situated in market. The incident occurred on Monday, which was a market day of Bandhi village where the incident occurred. 11. Laxmi Namdeo (PW-4) and some other witnesses of the vicinity were though examined in the case, but they feigned ignorance about the incident. Therefore, the evidence of close relative of the deceased, who are also inimical, deserves to be scrutinized cautiously and critically. In Ram Ashrit and Others v. State of Bihar, AIR 1981 SC 942 , apex court observed that when all the material witnesses in a murder case were either related or otherwise interested in the prosecution, their testimony had to pass the test of close and severe scrutiny before their testimony could be safely acted upon. In the absence of corroboration to a material extent in all material particulars, it was extremely hazardous to convict the accused persons on the basis of the testimony of these highly interested, inimical and partisan witnesses, particularly when it bristled with improbable versions and material infirmities. 12. In the absence of corroboration to a material extent in all material particulars, it was extremely hazardous to convict the accused persons on the basis of the testimony of these highly interested, inimical and partisan witnesses, particularly when it bristled with improbable versions and material infirmities. 12. In the light of above proposition of law when we examine the evidence of eyewitnesses viz. Yadvendra (PW-5), Dinesh Kumar Tiwari (PW-10), Vijay Kumar (PW-12) and Nagendra (PW-13), we find that there are material inconsistencies in their statements. According to Yadvendra, while sitting in the dispensary of deceased, he heard cries, he came out of the shop and saw Appellants assaulting deceased. They stripped him of his clothes. Appellant Ballan was sitting on his chest and throttling him; Sanjay was inflicting Lathi blows and Sunil picked up a bolder and dropped it on his chest and head. Thereafter, Appellants, one by one, kept on dropping bolder on the deceased, until he expired. Accused persons broke down the teeth of deceased and spat and urinated on his face. Accused Balmik also exhorted other accused persons to kill him. After the death of deceased, all the accused persons went away extending threats that if anybody gave evidence against them, he would be killed. He stated that when he tried to save the deceased, accused persons threatened him that he should not interfere otherwise he would also be killed. Therefore, he kept on standing there. Later on, he went to police station and lodged the report (Ex.P/6). In para-16 of his statement, this witness stated that at the time of incident he had come out of the dispensary and had gone to Gupta Hotel for taking tea and chewing betel. When he was there, some people told him that his brother was being beaten and then he heard the cries. At another place, he stated that he heard the shrieks of the deceased while he was at his shop, but he thought that there might have been some quarrel in the market and then he went to the shop of Gupta. In para-6, he admitted that after about 25 paces from the dispensary there was a turn towards Matwara road. From the turn, about 150 meters ahead there was a culvert where houses of Dilip Gupta and Laxmi Namdeo were situated. The incident had occurred near the house of Laxmi Namdeo. In para-6, he admitted that after about 25 paces from the dispensary there was a turn towards Matwara road. From the turn, about 150 meters ahead there was a culvert where houses of Dilip Gupta and Laxmi Namdeo were situated. The incident had occurred near the house of Laxmi Namdeo. According to him, at the time of occurrence number of people were present and the market was crowded. He deposed that while he was at the shop of Madan Gupta, Surjeet and Avinash informed him about the incident and thereafter he went to the place of incident. When it was asked that on the date of incident aforesaid Avinash was confined in jail, he stated that he thought that on that day Avinash was released from jail, therefore, under that impression, he named Avinash otherwise it was Bablu. According to him, he saw the incident from a distance of about 15 meters and he shouted also. Though hundreds of people were witnessing the incident, but nobody intervened. He witnessed the incident, but he did not know how accused made the deceased naked. This witness in respect to Vijay Dubey (PW-12) pointed out that he was resident of village Kalipathar, which was about 2 Kms. away from the place of occurrence. House of Dinesh Tiwari (PW-10) was in the village, which was about half a kilometer away from the place of occurrence. His elder brother Nagendra (PW-13) lived in Hoshangabad. He had come from Hoshangabad at the time of occurrence. 13. Nagendra (PW-13), who is real brother of deceased, stated that the incident occurred in front of the house of Laxmi Namdeo. At the time of occurrence he was at his house. He came to know through others that accused persons were assaulting his brother. Thereafter, he went at the spot and in perturbed state witnessed the occurrence hiding himself in the mob. He saw Sunil Tiwari assaulting deceased with a piece of stone, Ballan and Sanjay assaulting with Dandas. In the meanwhile, Balmik Pandey reached there and also assaulted deceased with a Danda. Sunil removed clothes of deceased from his body and scratched his mustaches. He also spat on his mouth. Seeing his brother dead, he ran away and went to his house. Evidence of this witness seems unnatural. It appears improbable that while his brother was being assaulted he kept on watching the incident stealthily. Sunil removed clothes of deceased from his body and scratched his mustaches. He also spat on his mouth. Seeing his brother dead, he ran away and went to his house. Evidence of this witness seems unnatural. It appears improbable that while his brother was being assaulted he kept on watching the incident stealthily. His evidence also appears inconsistent with the evidence of Yadvendra (PW-5), who stated that he shouted and tried to save his brother, but accused intimidated him. It does not appeal to reason that while two real brothers were present at the place of incident they did not intervene or even shouted to seek help of other people when hundreds of persons were present at the spot. It is also apparent from the evidence of these witnesses that no lethal or dangerous weapon was being used by the assailants in causing injuries to deceased. This witness reached at the spot after getting information from some persons at his house and saw accused persons stripping clothes of deceased, whereas, Yadvendra expressed his ignorance as to how the clothes of deceased were removed. According to Nagendra (PW-13), his house was about 200 meters away from the place of occurrence. He admitted that he shouted when he came out of his house for seeking help of others, but he stated that when he reached at the place of occurrence, he kept mum. His conduct also appears unnatural that despite witnessing the murder of his brother, he did not go to lodge the report with the police. The fact that he witnessed the incident hiding himself in the mob was found missing in his police statement (Ex.D/4). He was further confronted from his police statement (Ex.D/4) wherein he stated that at the time of incident he was present in the market and after hearing noise he went towards Matwara road where the incident occurred. The fact that accused Ballan assaulted deceased with Lathi was missing in his police statement. He denied that he disclosed in his police statement (Ex.D/4) that Ballan dropped stone many times on the deceased. Though this witness, in para-13 of his statement, said that clothes of deceased were removed after the assault, but in his police statement (Ex.D/4) he had disclosed that accused persons had assaulted deceased after removing his clothes. He denied that he disclosed in his police statement (Ex.D/4) that Ballan dropped stone many times on the deceased. Though this witness, in para-13 of his statement, said that clothes of deceased were removed after the assault, but in his police statement (Ex.D/4) he had disclosed that accused persons had assaulted deceased after removing his clothes. Apart from it, Yadvendra (PW-5), who is alleged to have witnessed the incident, could not say when clothes of the deceased were removed. This witness though stated that Balmik Pandey also assaulted deceased by Danda, but this fact was found inconsistent with the evidence of Yadvendra (PW-5) and also an improvement over his police statement (Ex.D/4). 14. Dinesh Tiwari (PW-10) deposed that while he was going towards Matwara Road, he saw Appellants assaulting deceased. All the Appellants were assaulting him by Lathi. They were using the same Lathi one by one. When deceased fell down, Appellant Sunil Tiwari picked up a stone and dropped it on the deceased 3-4 times. At the time of occurrence accused Balmik Pandey happened to pass on a cycle. He exhorted the accused persons and also assaulted deceased with the Lathi after taking it from Sanjay. When deceased got unconscious, Appellants removed his clothes and dragged him around their. They scratched his mustaches and spat over him. According to this witness, around 100-200 persons were present at the spot. He however knew only Vijay, Yadvendra and Nagendra. This witness, thus attempted to establish the presence of witnesses Vijay, Yadvendra and Nagendra at the spot, though none of these witnesses talked to each other or made any attempt to rescue their brother. Dinesh though admitted that Subodh and Avinash were his brothers, but he feigned ignorance about their involvement in the murder of Krishna Datt. He even stated that he did not know that his brothers were confined in jail. Since he had no concern with them, he did not know that for how many days they remained in jail. He admitted that his house is situated about 300-400 meters away from the place of occurrence. According to him, when accused persons went away, he kept on standing in the market and then went to inform the incident to Yadvendra (PW-5). His statement runs counter to the evidence of Yadvendra, according to whom, he was present at the dispensary of deceased. According to him, when accused persons went away, he kept on standing in the market and then went to inform the incident to Yadvendra (PW-5). His statement runs counter to the evidence of Yadvendra, according to whom, he was present at the dispensary of deceased. Apart from it, in para-3 of his statement, Dinesh Tiwari (PW-10) deposed that in the mob Yadvendra was present, but in para-8 he stated that he went and informed Yadvendra. Conduct of this witness also seems unnatural in not going to inform the police about the occurrence. His evidence further appears contradictory to the evidence of other witnesses when he says that all the Appellants assaulted deceased by the same Lathi one by one. According to him, he did not see Appellants dropping stones on deceased when he reached at the spot. He admitted that he did not disclose this fact to police in his statement (Ex.D/2). The facts that Appellants removed the clothes of deceased, dragged him on the way, scratched his mustaches and spat on him were found missing in his police statement (Ex.D/2). 15. Vijay Kumar (PW-12) stated that deceased was his real cousin brother. His father and the father of deceased were real brothers. On the day of incident, when there was crowd in the market, he saw people running towards Matwara Road. He also went there and saw deceased lying in naked condition. Appellant Sunil dropped stone on deceased. Ballan assaulted him with Lathi and Sanjay also assaulted him. Though Balmik Pandey was also standing nearby, but he did not see him assaulting deceased. After the incident, accused persons ran away and police reached at the spot. Dead body, after inquest, was sent for postmortem examination. He admitted that Krishna Datta, uncle of Sunil was murdered and deceased's son Sarvesh was accused in that case. He was sent to jail. He admitted that his house is about 2 Kms. away from the place of occurrence, but, at the time of occurrence, he was present in the market. According to him, the relations between deceased and Appellants were strained and inimical. Since Sarvesh was released on bail sometime before the occurrence, Appellants killed his father Subhash. This witness was confronted with his police statement (Ex.D/3) on various aspects. He stated that he did not disclose to police that Appellant Sunil and Ballan removed the clothes of deceased. According to him, the relations between deceased and Appellants were strained and inimical. Since Sarvesh was released on bail sometime before the occurrence, Appellants killed his father Subhash. This witness was confronted with his police statement (Ex.D/3) on various aspects. He stated that he did not disclose to police that Appellant Sunil and Ballan removed the clothes of deceased. Though this witness happened to be the cousin of deceased, yet, according to him, he silently witnessed the incident and went away from the spot and when accused left the place of occurrence, he did not go to the house of deceased to inform about the occurrence. Though he admitted in the court that he did not try to intervene in the occurrence, but, when confronted with his police statement (Ex.D/3), it was revealed that he disclosed to police that he tried to save the deceased. 16. It is significant to note that though the incident occurred in crowded market place, but none of the independent witness appeared before the Court to give correct and truthful account of the incident. The witnesses, who have been adduced before the trial Court, are close relatives of the deceased. Their conduct is highly unnatural. Though all the four eyewitnesses viz. Yadvendra (PW-5), Dinesh Kumar Tiwari (PW-10), Vijay Kumar (PW-12) and Nagendra (PW-13) happened to be the brothers of deceased, yet they are said to have witnessed the incident without making any attempt to save the deceased. It is true that out of fear people might keep away from such type of incident, but when there were four brothers, it was beyond imagination that they would remain silent spectators, especially when it could be inferred from their evidence that they marked the presence of each other. It is also strange that Vijay Kumar (PW-12) did not say about the presence of other brothers of deceased. There is evidence on record that there was deep enmity between the two parties. The evidence of all the aforesaid eyewitnesses is inconsistent to each other on material points. We are conscious that merely on the ground that prosecution witnesses are interested and partisan witnesses, their testimony cannot be discarded, but when their evidence appears inconsistent on material particulars and unnatural, it becomes hazardous to place reliance on their evidence to convict the accused persons. 17. We are conscious that merely on the ground that prosecution witnesses are interested and partisan witnesses, their testimony cannot be discarded, but when their evidence appears inconsistent on material particulars and unnatural, it becomes hazardous to place reliance on their evidence to convict the accused persons. 17. We noticed that the trial Court implicitly accepted the evidence of Yadvendra (PW-5), Dinesh Kumar Tiwari (PW-10), Vijay Kumar (PW-12) and Nagenera (PW-13) without properly considering the inconsistencies and contradictions in their evidence. It failed to consider that inherent infirmities in their evidence created grave suspicion and doubt about their presence at the place of occurrence. It also failed to notice their highly unnatural conduct, which rendered their evidence doubtful especially because all the four eyewitnesses of the incident were brothers of the deceased. In the above doubtful circumstances, we consider it unfit to place reliance on the evidence produced by the prosecution to hold the Appellants guilty for the offence charged against them. 18. After closely and critically scrutinizing the evidence adduced by the prosecution, we find that trial court misappreciated the evidence on record and committed error in placing reliance on the evidence of eyewitnesses adduced by the prosecution in convicting the Appellants for causing death of deceased. Accordingly, the impugned judgment of conviction and sentence passed by the trial Court is set aside. Appellants are acquitted. 19. Appeal allowed.