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2012 DIGILAW 169 (CHH)

UMMED SINGH v. STATE OF M. P.

2012-07-10

RAJEEV GUPTA, SUNIL KUMAR SINHA

body2012
JUDGMENT Sunil Kumar Sinha, J. 1. This appeal is directed against the judgment dated 18th of October, 1996 passed in Sessions Trial No. 345/95 by the Additional Sessions Judge, Manendragarh. By the impugned judgment, the appellants have been convicted u/ss 148 & 302/149 IPC and sentenced to undergo R.I. for 2 years and imprisonment for life and to pay fine of Rs.5,000/- with default sentence of additional imprisonment for 2 years. 2. The facts, briefly stated, are as under:- 17 accused persons (A-I to A-17) were tried for commission of offences punishable u/ss 148, 307/149 & 302/149 IPC. The prosecution came with the case that on 14.7.95 at about 12.30 Noon, the accused persons formed an unlawful assembly, participated in rioting with deadly weapons and in furtherance of the common object of the said assembly committed murder of deceased- Anuroop Singh and attempted to the lives of Mandev (PW -10) and Deosingh (PW -11). The case of the prosecution was based on eye-witness account of Ram Singh (PW -2) - father of the deceased), Mandev (PW -10) and Deosingh (PW -11). Mandev (PW -10) and Deosingh (PW -11) turned hostile. Though they deposed that they were assaulted by the villagers by lathi, but they could not depose as to who were present there and who assault them. Therefore, all the accused persons were acquitted of the charges framed u/ss 307/149 IPC. The learned Sessions Judge, however, relying on the sole testimony of Ram Singh (PW -2), held that it was proved that the above 4 appellants (A-1, A-5, A-12 & A-14) and other villagers who could not be identified, were members of the unlawful assembly, they participated in rioting and in furtherance of the common object of the said assembly, they committed murder of deceased Anuroop Singh. Therefore, the above 4 appellants (A-1, A-5, A-12 & A-4) were convicted and sentenced as aforementioned. However, other accused persons were acquitted of all the charges framed against them. 3. Mrs. Meena Shastri, learned counsel appearing on behalf of the appellants, has argued that Ram Singh (PW-2) is father of the deceased; he is an interested witness being close relation of the deceased; his presence at the place of occurrence is doubtful; he adopted the method of "pick and choose" therefore, conviction based on the solitary evidence of Ram Singh (PW-2) can not be sustained. 4. On the other hand, Mr. 4. On the other hand, Mr. J .A. Lohani, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. 5. We have heard learned counsel for the parties at length and have also perused the records of the sessions case. 6. Relationship is not a factor to affect the credibility of a witness. There is no hard-and-fast rule that family members can never be true witnesses to the occurrence and they will always depose falsely before the Court. A close relative of the deceased does not, per-se become an interested witness. An interested witness is one who is interested in securing conviction of a person .out of vengeance or enmity or due to disputes and deposes before the Court only with that intention and not to further cause of justice. The Supreme Court has reiterated the principle that version of interested witnesses cannot be thrown overboard, but has to be examined carefully before accepting the same. (Vide Namdev Vs. State of Maharashtra 2007 AIR SCW 1835; Sonelal Vs. State of M.P. 2008 AIR SCW 7988 and Dharnidhar Vs. State of Uttar Pradesh and Others & other connected appeals (2010) 7 SCC 759 . Therefore, argument of learned counsel for the appellants that Ram Singh (PW-2) should not be relied on because he is father of the deceased, cannot be accepted. However, his evidence is to be scrutinized with due care and caution before placing reliance on him. 7. Now we shall examine the evidence of Ram Singh (PW-2) on the above principles. 8. Ram Singh (PW -2) is father of the deceased. He deposed that, on the fateful day, he along with his son-Gajroop and grand-son-Devnarayan, had gone to work as labour in the field of Tulsiprasad (PW-13). They were ploughing his fields. At about 12.00 Noon, they untied the cattle from plough. When he returned to his house, he saw that all the accused persons had surrounded the house of his son- Anurrop Singh (deceased). When he asked the accused persons as to why they have surrounded his house, they told that his son has abused them, therefore, they will assault him. He was residing separately from his son in a different house. At that time, Anuroop Singh (deceased) was inside his house. On a call given by accused Sant Lal (A-5), his son came out. He was residing separately from his son in a different house. At that time, Anuroop Singh (deceased) was inside his house. On a call given by accused Sant Lal (A-5), his son came out. Thereafter Sant Lal (A-5), Ummed Singh (A-1), Basant Lal (A-14) and Dewan @ Dhall Kumar (A-12) assaulted him by lathi. When his son fell down. Gaya Prasad (A-8), Ramdev (A-4), Bhim Singh (A-II), Bhandari Singh (A-13), Ujit (A-2), Dhani Ram (A-16) and Karan Sai (A-3) ran away from the place of occurrence. Other accused persons, who were standing there, also ran away seeing that his son (deceased) was being assaulted by the above 4 persons. He went to his son and saw that he was breathing. After sometime, Basant Lal (A-14), Dewan (A-12). Sant Lal (A-5) and Ummed Singh (A-1) again came there and assaulted his son by lathi. In cross-examination Para-7 he admitted that after releasing the cattle from plough. he had gone to the village tank and after taking bath in the village tank, he along with Gajroop and Devnarayan had gone to the house of Tulsiprasad (PW-13) for taking their meals and after taking meals in the house of Tulsiprasad (PW -13), they returned to their 'houses at about 1.30 p.m. He had denied the suggestion that the incident had already taken place before he returned to his house. 9. F.I.R. (Ex.-P/2) was lodged by Ram Singh (PW-2). In the F.I.R. (Ex.-P/2) he had taken the names of all the accused persons and had mentioned that all the accused persons had assaulted the deceased. When the contents of the F.I.R. (Ex.-P/2) were put to him in cross-examination in Para-9, he could not explain the above omission and asserted that only Basant Lal (A14), Sant Lal (A-5), Ummed Singh (A-I) and Dewan (A-12) had assaulted his son (deceased). He deposed in clear words that if the specific names of the above accused persons (appellants) are not there in the F.I.R. (Ex.-P/2) as the assailants of the deceased, and the F.I.R. (Ex.-P/2) contains that all the accused persons had assaulted the deceased, he cannot tell reason for the same. 10. The contents of the F.I.R. (Ex-P/2) would show that Ram Singh (PW- 2) lodged it against 15 accused persons only. He added the names of 2 more accused persons as the assailants in his 161 Cr. P.C. statement. 10. The contents of the F.I.R. (Ex-P/2) would show that Ram Singh (PW- 2) lodged it against 15 accused persons only. He added the names of 2 more accused persons as the assailants in his 161 Cr. P.C. statement. However, in his court version he selected to take the names of only 4 appellants (A-I, AS, A-12 & A-14). In fact he adopted the method of "pick and choose". His such conduct of firstly taking the names of 15 assailants in the F.I.R. (Ex.-P/2), then, adding the names of 2 assailants more in his 161 Cr. P.C. statement and then finally taking the names of only 4 appellants (A-1, A-5, A-12 & A-14) in trial makes his statement shaky. On account of the above conduct of Ram Singh (PW-2), the argument assumes importance that he being the father of the deceased was interested and was deliberately deposing against the 4 selected persons (appellants herein), leaving the names of other accused persons against whom he made allegations in the F.I.R. (Ex.-P/2) as also 161 Cr. P.C. statement. 11. Tulsiprasad (PW-13) is the person who had engaged Ram Singh (PW2) and his other two relatives as labour in his field. He deposed that Ram Singh (PW-2), Gajroop and Devnarayan, after working in the field in first half, had reached to his house for meals at about 1.00 p.m. They had consumed about 1-1½ hours in his house in taking meals. Devnarayan left his house at about 2.30 p.m. Thereafter Gajroop also left his house and went to his neighbour's house where chhathi was being celebrated. He very categorically deposed that Ram Singh (PW-2) had stayed in his house. He was sleeping in his house. In Para-5 of his cross-examination, he admitted that Ram Singh (PW-2) was sleeping in his house till 3-3.30 p.m., and he got up at the instance of this witness (PW-13) at about 3-3.30 p.m. This also creates doubt on the testimony of Ram Singh (PW-2) who claims that he was present at the place of occurrence at about 12.30 Noon. 12. Though it is open to the Court to convict the accused on the basis of evidence of single witness, but the evidence of such witness should be wholly reliable. Section 134 of the Evidence Act also provides that no particular number of witnesses shall in any case be required for proof of any fact. 12. Though it is open to the Court to convict the accused on the basis of evidence of single witness, but the evidence of such witness should be wholly reliable. Section 134 of the Evidence Act also provides that no particular number of witnesses shall in any case be required for proof of any fact. Therefore, what is important is the quality of evidence and not its quantity. 13. In the instant case, the 2 eye-witness namely- Mandev (PW-IO), Deosingh (PW -11), who were injured witnesses, have turned hostile. The Sessions Judge has relied on the solitary testimony of Ram Singh (PW-2). We are of the view that on account of the above conduct of Ram Singh (PW2) and the contents of the F.I.R. (Ex.-P/2) and the evidence of Tulsiprasad (PW-13), it was not sate to rely on the solitary testimony of Ram Singh (PW2) for convicting the appellants. 14. Therefore, conviction based on the sale testimony of Ram Singh (PW2) cannot be sustained and the appellants are entitled to benefit of doubt. 15. For the foregoing reasons, the appeal is allowed. The conviction and sentences awarded to the appellants u/ss 148 & 302/149 IPC are set-aside. The appellants are acquitted of the charges framed against them. It is stated that the appellants are on bail. Their bail bonds are cancelled and sureties stand discharged. Appeal Allowed.