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2013 DIGILAW 118 (CHH)

BHAGATRAM v. STATE OF M. P.

2013-04-02

Prashant Kumar Mishra, SUNIL KUMAR SINHA

body2013
JUDGMENT As per Hon'ble Shri Sunil Kumar Sinha, J.:- 1. This appeal is directed against the judgment dated 16th of October, 1997, passed in S.T. No. 114/94 by the Additional Sessions Judge, Sakti, District Bilaspur (CG). By the impugned judgment, the appellant has been convicted under Section 302 IPC and sentenced to undergo R.I. for life and to pay fine of Rs.1000/- with default sentence of R.I. for 1 year. 2. The facts, briefly stated, are as under:- 2.1. Deceased - Shankar Lal and Parimal (PW-1) were close friends. On 11.1.1994, Parimal (PW-1) had gone to village Devgaon. There he met the deceased. Parimal (PW-1) and the deceased consumed liquor in village Devgaon. While they were consuming liquor, the accused persons met them and an altercation took place between them. The accused persons had also consumed liquor. The allegations are that, in the evening, when the deceased and Parimal (PW-1) were returning from village Devgaon, the accused persons met them on the way, again a quarrel took place there and in the said quarrel, the appellant had assaulted the deceased by some article, due to which, the deceased had sustained injuries and succumbed to those injuries. Parimal (PW-1) was the solitary eye-witness to the incident. He lodged merg intimation (Ex. P/20), based on which, Dehati Nalishi (Ex. P/18) and a regular First Information Report (FIR Ex. P/19) were recorded. The FIR (Ex.P/19) and Dehati Nalishi (Ex. P/18) contains the name of the appellant. 2.2. The Investigating Officer reached to the place of occurrence, gave notice (Ex. P/11) to the Panchas and prepared inquest (Ex. P/12) on the dead body of the deceased. The dead body was sent for postmortem. The postmortem examination was conducted by Dr. V.P. Jaiswal (PW-7). He noticed following injuries on the dead body of the deceased: i. Incised wound of 12 x 3 x 2 cm on the upper portion of left ear; ii. Incised wound of 3 x 3 x 2 cm at the lower portion of the left ear; iii. Incised wound of 2 x 2 x 1 cm just below injury No.2. The left side of the face was depressed. On internal examination, he found fractures of left temporal and left mandible. The Autopsy Surgeon opined that the cause of death was coma, due to combined effect of shock and haemorrhage on account of the above injuries and it was homicidal in nature. The left side of the face was depressed. On internal examination, he found fractures of left temporal and left mandible. The Autopsy Surgeon opined that the cause of death was coma, due to combined effect of shock and haemorrhage on account of the above injuries and it was homicidal in nature. The postmortem rep0l1 is Ex. P/15. 2.3. In further investigation, the appellant was taken into custody and his memorandum statement (Ex. P/4) under Section 27 of the Evidence Act was recorded and a stone was seized at his instance from a Nata, situated near the place of occurrence, vide seizure memo Ex. P/5. The seized articles were sent for their chemical examination to Forensic Science Laboratory, (FSL) Bilaspur, from where a report (Ex. P/24) was received. According to the FSL report, blood stains were found on the stone and the clothes belonging to the deceased, however, no blood stains were found on the clothes of the appellant. The above articles were sent for Serologist examination, in which, blood stains of 'O' group were found on the clothes, however, the origin and group of the blood stains found over other articles including the stone could not be determined on account of their disintegration. 2.4. It appears that a proceeding under Section 319 Cr.P.C. was drawn by the concerned Court and along with the appellant (A-1), 3 other accused persons namely- Chaitram (A-2), Duj Ram (A3) and Firat Ram (A-4) were also put to trial. All the accused persons were charged under Section 302/34 IPC. The case of the prosecution was based on eyewitness account of Parimal (PW-1). The learned Sessions Judge relied upon the testimony of Parimal (PW-1) so far as the appellant (A-1) is concerned and convicted and sentenced him as above. However, the other accused persons (A-2 to A-4) were acquitted of the charges framed against them. Hence, this appeal. 3. Learned counsel for the appellant have argued that the solitary testimony of Parimal (PW-1) was not reliable; there were many contradictions in his evidence; his evidence was not supported by the medical evidence of Dr. V.P. Jaiswal (PW-7); he was disbelieved for the other accused persons; therefore, the conviction based on the solitary testimony of Parimal (PW-1) cannot be sustained. 4. On the other hand, Mr. V.P. Jaiswal (PW-7); he was disbelieved for the other accused persons; therefore, the conviction based on the solitary testimony of Parimal (PW-1) cannot be sustained. 4. On the other hand, Mr. N.K. Mehta, learned Panel Lawyer appearing on behalf of the State, has opposed these arguments and supported the judgment passed by the Sessions Court. 5. We have heard counsel for the parties. 6. Parimal (PW-1) has deposed that on the fateful day, at about 6.00 p.m., all the 4 accused persons (A-1 to A-4) were quarreling with the deceased in village Ghoghari. It was at about 6.00 p.m., Bhagatram (A-1) was demanding price of fish from the deceased, on which the deceased said that he will pay the amount. This is what he said in first paragraph of his examination-in-chief. In paragraph 2 he deposed that it has not happened that Chaitram (A-2), Firatram (A-4), Duj Ram (A-3) and Bhagatram (A-1) got up and started quarreling with the deceased and assaulted him by lathi, stones etc. He very clearly deposed that since there was darkness, he could not witness the incident. Bhagatram (A-1) pushed him and threatened him to go from that place. He saw that blood was oozing out from the temporal region of the deceased. Thereafter, all the accused persons ran away from that place. The deceased had died on account of the injuries sustained by him. He very clearly deposed that the deceased had died on account of the assault given by Bhagatram (A-1), Chaitram (A-2), Duj Ram (A-3) and Firat Ram (A-4). 7. Parimal (PW-1) was put to lengthy cross-examination by the defence. His diary statement (Ex. D/1) was having many contradictions. Learned counsel for the appellant have referred to the main contradictions marked as portions 'A to A', 'B to B', 'C to C', 'D to D' and 'E to E' in his diary statement (Ex. D/1). At portion 'E to E', he had mentioned that the appellant (A-1) had assaulted the deceased by some article, whereas, in Court evidence, he deposed that the deceased was assaulted by all the accused persons and has developed a story that the deceased was assaulted by a stone by the appellant. 8. After going through the evidence of Parimal (PW-1), we find that the incident had occurred at 2-3 places. 8. After going through the evidence of Parimal (PW-1), we find that the incident had occurred at 2-3 places. According to the prosecution, firstly, the incident of quarrel took place when the deceased and Parimal (PW-1) were consuming liquor in village Devgaon. Thereafter, another incident occurred when they were again consuming liquor somewhere on the way. Then the third incident (main incident of assault) took place near Aanganwadi Kendra of village Ghoghari, where the deceased was allegedly assaulted by the accused persons. 9. The merg intimation (Ex. P/20) was the first hand information given by Parimal (PW-1) to the Police. In the merg intimation, Parimal (PW-1) does not mention that he had seen the incident of actual assault. What he mentioned in the said document is that when he was coming with the deceased, on the way, the deceased went ahead to some distance and all of a sudden, he heard some noise of assault. When he reached there, he saw that Shankar Lal (deceased) was lying in injured condition and Bhagatram (A-1) was running away towards the Nala. This shows that according to the contents of the merg intimation (Ex. P/20), Parimal (PW-1) had not seen the incident of actual assault allegedly given by the appellant to the deceased. The above fact further assumes importance because in the Court evidence, in cross-examination, Parimal (PW-1) had deposed that all the accused persons had participated in assaulting the deceased. If in fact, he would have seen the persons assaulting the deceased, he must have mentioned their names in the merg intimation with the role attributed to them. 10. The next document is Dehati Nalishi (Ex. P/18). In this document, Parimal (PW-1) has exaggerated the story to the effect that when they reached near Aanganwadi Kendra, he saw that the deceased was assaulted by the appellant by some article. He did not mention the name of that article. This also goes contrary to his Court evidence that the deceased was assaulted by the appellant by stone. 11. The learned Sessions Judge has not relied on the testimony of Parimal (PW-1) so far as the other accused persons are concerned. The Sessions Judge has recorded the finding that as it was a dark night, Parimal (PW-1) may not have seen the actual incident, therefore, he was not able to depose as to who assaulted the deceased by which article. The Sessions Judge has recorded the finding that as it was a dark night, Parimal (PW-1) may not have seen the actual incident, therefore, he was not able to depose as to who assaulted the deceased by which article. However, in further appreciation, the Sessions Judge has held that since Parimal (PW-1) has mentioned in the FIR (Ex.P/19) that the deceased was assaulted by the appellant, therefore, his evidence could be relied on for conviction of the appellant (A-1). Thus, Parimal (PW-1), the solitary eye-witness was not held to be wholly reliable by the Sessions Judge. 12. Learned counsel for the appellant have argued that if the solitary testimony of the eye-witness was not wholly reliable, the Sessions Judge must have gone for some corroborative evidence to rest the conviction of the appellant. 13. If we appreciate the evidence of Parimal (PW-1) in light of the other evidence on record, we find that his evidence was not corroborated by the medical evidence. Dr. V.P. Jaiswal (PW-7) had noticed 3 incised wounds on the left temporal region of the deceased. In para 12 of his examination-in-chief, he has deposed that the fractures found on the bones of the deceased could have been caused by stones but later on, he admitted that the incised wounds found on the temporal region (all the external injuries) could not be caused by the stone, seized at the instance of the appellant and sent for its examination. Even otherwise also, in normal circumstances, the incised wounds could not be caused by a stone unless the stone is sharp edged or is given a shape of sharp edged weapon. Present is not a case, in which, the stone was having sharp edges so as to cause incised wounds over the muscles of the temporal region. Therefore, there is a discrepancy in the evidence of Parimal (PW-1) and the medical evidence. 14. In Joseph Vs. State of Kerala (2003) 1 SCC 465 , it was held that when there is a sole witness to the incident his evidence has to be accepted with an amount of caution and after testing it on the touchstone of the evidence tendered by other witnesses or evidence as recorded. 14. In Joseph Vs. State of Kerala (2003) 1 SCC 465 , it was held that when there is a sole witness to the incident his evidence has to be accepted with an amount of caution and after testing it on the touchstone of the evidence tendered by other witnesses or evidence as recorded. Section 134 of the Indian Evidence Act provides that no particular number of witnesses shall in any case be required for the proof of any fact and, therefore, it is permissible for a court to record and sustain a conviction on the evidence of a solitary eyewitness. But, at the same time, such a course can be adopted only if the evidence tendered by such witness is cogent, reliable and in tune with probabilities and inspires implicit confidence. By this standard, when the prosecution case rests mainly on the sole testimony of an eyewitness, it should be wholly reliable. 15. In appreciation of the entire evidence of Parimal (PW-1), we find that his evidence was not wholly reliable. The Sessions Judge has also recorded a finding in this regard. On due appreciation of the entire evidence available on record, we are of the view that the learned Sessions Judge was not justified in resting the conviction of the appellant on the solitary evidence of Parimal (PW-1), who was not held to be wholly reliable. 16. We further note that the memorandum statement (Ex. P/4) of the appellant does not bear either signature or thumb impression of the appellant. In Jackaran Singh Vs. State of Punjab AIR 1995 SC 2345 , disclosure statement did not bear the signature or the thumb 'impression of the accused. The Supreme Court held that "The absence of signatures or the thumb impression of an accused on the disclosure statement recorded u/s 27 of the Evidence Act detracts materially from the authenticity and the reliability of the disclosure statement". As stated above, in the present case also there is no signature or thumb impression of the appellant in the discovery memo (Ex. P/4). The Investigating Officer, has simply deposed that a disclosure statement was made by the appellant and one stone was seized from a Nala and blood stains were found thereon. As stated above, in the present case also there is no signature or thumb impression of the appellant in the discovery memo (Ex. P/4). The Investigating Officer, has simply deposed that a disclosure statement was made by the appellant and one stone was seized from a Nala and blood stains were found thereon. We doubt the authenticity of the disclosure statement on the above principles and we further doubt that blood stains would remain intact on the stone which was dropped in the water since about last 24 hours. 17. For the foregoing reasons, the appeal is allowed. The conviction and sentence awarded to the appellant under Section 302 IPC are set-aside. The appellant is acquitted of the charges framed against him. It is stated that the appellant is on bail. His bail bonds shall continue for a period of 6 months in view of the provisions of Section 437-A Cr.P.C. Appeal Allowed.