Hari Ram Shukla v. The State of Madhya Pradesh

Judgment

11/12/2012 18/12/2012 Per: Rakesh Saksena, J. J U D G M E N T

1. Appellant has filed this appeal against the judgment dated 27th November, 2002 passed by Sessions Judge, Panna in Sessions Trial No.86/2000 convicting him under Section 302 of the India Penal Code and Section 25 (1-B)(b) of the Indian Arms Act and sentencing him to imprisonment for life with fine of Rs.5000/- and rigorous imprisonment for one year with fine of Rs.2000/-.

2. In short, the prosecution case is that on 18.9.2000, at about 10.15 2 am, complainant Ram Vishal (PW-8) lodged report at Police Station Devendra Nagar that he lived in village Badagaon, there had been some litigation between him and the mother of accused Hari Ram in respect of agricultural land which had been decided in his favour. A day before, there had been a Panchayat in respect of this land. At about 8.00 O'clock in the morning, when his son Daddu @ Shrvan Kumar was going to Devendra Nagar with the papers of land, he and his grand daughter Sadhna were going behind him, as soon as Daddu reached near the house of Hari Ram, accused Dannu Brahman caught hold of his hand, Hariram brought a Farsa from his house and assaulted Daddu from the butt of Farsa on his neck. As a result of injuries, Daddu died at the spot. Brindavan Pandey, Bhanu Pratap Singh and some other people of the village had seen the incident. On the basis of aforesaid report (Ex.P/ 16), a case under Section 302/34 of the Indian Penal Code was registered. Police reached at the spot, conducted inquest proceedings and recorded memorandum (Ex.P/2) before the witnesses. Spot map (Ex.P/3) was prepared and an iron blade of Farsa and other articles were seized from the spot. Dead body of deceased was sent to Primary Health Centre, Devendra Nagar where Dr. P.N. Sharma (PW-4) conducted postmortem examination of the dead body and submitted his report (Ex.P/8).

3. During investigation, statements of witnesses were recorded and on 19.9.2000 accused Hari Ram was arrested. On his information, Ex.P/ 12, a broken handle of Farsa, was seized. Seized articles were sent to Forensic Science Laboratory for chemical examination. 3

4. After completion of investigation, charge sheet was filed against accused Hari Ram and Ram Prakash @ Danna and the case was committed for trial.

5. On framing the charges, accused persons abjured their guilt and pleaded false implication due to enmity. In his defence, Hari Ram

examined his mother Smt. Bhagwati (DW-1), Ram Narayan (DW-2), Puran (DW-3) and Swamideen (DW-4).

6. Upon trial and after appreciation of evidence, learned trial judge held accused Hari Ram guilty and convicted and sentenced him as mentioned above. However, finding the evidence insufficient against co- accused Ram Prakash @ Danna, acquitted him of the charges. Aggrieved by his conviction and sentence, appellant has filed this appeal before this Court.

7. Shri L.N. Sakle, learned counsel for the appellant submitted that the evidence of alleged eyewitnesses was contradictory and discrepant. The evidence of eyewitnesses was belied by the medical evidence of Dr. P.N. Sharma. The conviction of appellant was based only on the evidence of relative and inimical witnesses. No independent witness supported the prosecution case. Learned trial judge misappreciated the evidence and erred in recording the finding of guilt of the appellant. On the other hand, Shri Amit Pandey, learned Panel Lawyer for the State, submitted that the evidence of eyewitnesses viz. Ram Vishal (PW-8) Smt. Munnibai (PW-12) and Ku. Sadhna (PW-13) was consistent and reliable. The discrepancies found in their evidence were not of substantial nature. It was amply established that appellant committed murder of deceased. 4 The finding of conviction recorded by the trial court was just and proper calling for no interference.

8. We have heard the learned counsel for the parties and perused the impugned judgment and evidence on record carefully.

9. It has not been disputed that deceased died a homicidal death. Brindavan (PW-1), Bhanupratap Singh (PW-2), Ram Vishal (PW-8), Smt. Gayatribai (PW-9), Smt. Kasturibai (PW-10), Smt. Munnibai (PW-12) and Ku. Sadhna (PW-13) categorically deposed that Daddu @ Shravan Kumar died because of the injuries suffered by him on his neck. They saw the dead body of deceased. Ram Vishal (PW-8), the father of deceased, lodged first information report (Ex.P/16) informing the death of his son. Investigating Officer P.D. Ahirwar (PW-14) recorded Murg (Ex.P/17) and conducted inquest proceedings. He sent the dead body for postmortem examination. Dr.P.N. Sharma (PW-4) of PHC Devendra Nagar conducted autopsy and found following injuries on the body of deceased: A cut wound 8” x 3” full skin deep on left side of the “1. neck. Blood oozing out.

2. A cut wound 11” x 4” x 4” in mid portion of neck. A cut wound 9” x 3” x 2” in continuation of wounds

3. No.1 and 2. On internal examination, Dr. Sharma found cutting of muscles, vessels and trachea completely. All the aforesaid injuries were caused by hard and sharp object and were ante mortem in nature. Injuries were sufficient in ordinary course of nature to cause death” From the above evidence, it stood amply established that the deceased viz. Daddu @ Shravan Kumar died a homicidal death. 5

10. The next question before this Court is whether appellant caused the injuries to deceased which resulted into his death.

11. Learned counsel for the appellant submitted that independent witnesses viz. Brindawan (PW-1) and Bhanupratap Singh (PW-2) did not support the prosecution case. Eyewitnesses Ram Vishal (PW-8), Smt. Munnibai (PW-12) and Ku. Sadhna (PW-13) were respectively the father, sister and niece of the deceased. Gayatribai (PW-9) and Kasturibai (PW-10), who saw accused persons after the incident, were also the wife and mother of deceased respectively. Since the relations between appellant and the aforesaid witnesses were inimical because of land dispute and the evidence of these witnesses suffered with material omissions and contradictions, their evidence was not reliable.

12. It is true that eyewitnesses on whose testimony the conviction of appellant has been based are close relatives of deceased and are also interested witnesses because of the land dispute and litigation between deceased and appellant, but, only on account of that their evidence cannot be discarded. It, however, requires a close and critical scrutiny of their evidence to test their veracity.

13. Ram Vishal (PW-8), the father of deceased, stated that after taking breakfast his son Shravan Kumar left home for going to Panna. He, his daughter Munnibai and grand daughter Sadhna also accompanied him. When deceased was about 8-10 paces behind him, as soon as he reached near the garage of Kanchedi, accused Hariram dealt Farsa blows on his neck due to which he fell down. Accused Danna @ Ram Prakash was also there, but he did not do anything. Since nobody was there, he 6 went to police station and lodged report (Ex.P/16). He stated that since he could not make signatures, he put his thumb impression on the FIR. When Ram Vishal was confronted with first information report (Ex.P/16) lodged by him, he denied that he mentioned about Panchayat convened at the temple of Hanumanji a day before the incident in respect of the land dispute; rather he mentioned that if it was mentioned in the report, it would have been mentioned by the village people. Though the first information report revealed signature of this witness, but he feigned his ignorance as to who made signatures. On court question, he admitted that he had made his signatures on the first information report. This witness though stated that deceased was going to Panna, but he mentioned in the FIR that he was going to Devendra Nagar. He denied that he mentioned in the FIR about deceased's going to Devendra Nagar. Ku. Sadhna (PW-13), who also was said to have accompanied deceased, stated that deceased was going to Devendra Nagar and she was also going with him to fetch books from Devendra Nagar.

14. Ram Vishal (PW-8) stated that deceased was coming behind him, but in first information report (Ex.P/16) he stated that he (witness) and his grand daughter Sadhna were going behind the deceased. In this regard the evidence of Sadhna (PW-13) is also significant wherein she denied that she followed deceased because he had already left the house before her. On perusal of her police statement (Ex.D/5) it is revealed that she stated that after taking meals deceased had gone to Devendra Nagar for some work and she and Ram Vishal (PW-8) went after him towards rest house. 7

15. Ram Vishal (PW-8) stated that his daughter Munnibai (PW-12) was also going with him, but this fact was found missing in the first information report. Munnibai (PW-12) stated that when deceased was going to Devendra Nagar, her father Ram Vishal and niece Sadhna had gone to give money to him and she had also accompanied them since she had also to give money for bringing some medicines. Though she stated that Ram Vishal and Sadhna were going ahead of deceased, but, when she was confronted with her police statement (Ex.D/4), it was found that she stated that Ram Vishal and Sadhna were going behind the deceased. According to her, Ram Vishal and Sadhna had gone after the deceased from Dharra Wala passage and she had gone from another passage known as Parwala Rasta. Aforesaid discrepancies in the evidence of all the aforesaid witnesses create suspicion about their presence near the deceased at the time of occurrence. It is also important to note that though in the first information report Ram Vishal (PW-8) mentioned the presence of Brindawan and Bhanu Pratap as eyewitnesses, but in the court he altogether denied it. He also denied that co-accused Dhanna @ Ram Prakash had caught hold of deceased before he was assaulted by the appellant. Brindawan (PW-1) and Bhanu Pratap Singh (PW-2) denied they witnessed the occurrence. According to them, when they heard commotion, they went near the house of Kanchedi and saw deceased lying there. Ram Vishal and Sadhna had reached there after some time. Both the witnesses were declared hostile.

16. Though Ram Vishal (PW-8) stated that Munnibai (PW-12) accompanied him when he was going with the deceased, but this fact 8 was found missing in his police statement (Ex.D/1). Apart from it, he admitted that when his son was assaulted he did not raise any hue and cry, nor did he go to inform any person of village about the incident since nobody was there. It does not appear natural that a father would not have even shouted when his son was being assaulted with Farsa.

17. Learned counsel for the appellant drew our attention to further discrepancies in the evidence of prosecution witnesses arguing that their evidence was not reliable and trustworthy. He pointed out from the evidence of Gayatribai (PW-9), widow of deceased, that deceased was going to Devendra Nagar for the treatment of her child. Her father-in-law Ram Vishal and niece Sadhna were also going to Devendra Nagar. When these persons had gone, Munnibai also went after them to give prescription paper to them. Munnibai (PW-12) stated that Ram Vishal and Sadhna had gone to give money to deceased and she had gone with them because she wished her brother to bring some medicines. All of them had gone after deceased only to give money to him whereas Sadhna (PW-13) stated that she was going to Devendra Nagar for fetching books. It seems that all the aforesaid witnesses assigned some or the other reason to justify their going with or after the deceased. If at all any prescription paper or money had to be handed over to deceased, any one of them could have gone to meet deceased for the same. It seems suspicious that all the witnesses had different purposes for going after the deceased, and by chance to be witnesses of the incident.

18. Ram Vishal (PW-8), it appears, deliberately tried to suppress that 9 deceased was going to Devendra Nagar taking the papers of land dispute. In his police statement (Ex.D/1) he stated that deceased had papers of the land with him at the time of incident. It is also significant to note that investigating officer P.D. Ahirwar (PW-14) seized a plastic bag from the place of incident containing papers of his land.

19. Smt. Munnibai (PW-12), Gayatribai (PW-9) and Kasturibai (PW-10), the mother of deceased, though stated that after causing death of deceased appellant and co-accused Danna had come and threatened Gayatri that after committing murder of her husband they would also kill his son, but this fact was not stated by Ram Vishal (PW-8). Smt. Munnibai (PW-12) went to the extent of saying that when she tried to save her brother, accused persons kicked her whereby she suffered injury on her cheek, but this injury was not disclosed by her to police. After scrutiny of the evidence of Munnibai (PW-12) learned trial judge did not accept her as a reliable eyewitness.

20. Learned counsel for the appellant argued that, though, between the place of occurrence, which took place near the houses of appellant and the deceased, there were number of houses, but no witness from the locality was examined by the prosecution. Admittedly the incident had taken place on the passage near the garage of Kanchedi and also the house of appellant, and there were houses of people on way, but it was strange that no one except the family members of deceased witnessed the occurrence. Though as per first information report lodged by Ram Vishal (PW-8) the incident was seen by Brindawan (PW-1) and Bhanu Pratap Singh (PW-2), but they did not say that they witnessed the 10 occurrence, even complainant Ram Vishal (PW-8) also denied their presence at the spot in his statement before the court.

21. Learned counsel for the appellant next submitted that the evidence of alleged eyewitnesses was inconsistent with the medical evidence. He referred to the postmortem examination report (Ex. P/8) and the evidence of Dr.P.N. Sharma (PW-4) who conducted postmortem of the body of deceased and submitted that the incident had occurred either in the night or a long time before the time as purported to be given by the eyewitnesses.

22. Dr. P.N. Sharma (PW-4) deposed that the death of deceased might have taken place within 10 to 12 hours from the time of postmortem. According to prosecution, the time of incident was said to be around

8.00 am and the postmortem examination of the body of deceased was conducted at 12.15 pm on the same day. Said opinion was given by the doctor on the basis of onset of the rigor mortis. According to him, the rigidity of the upper part of the body of deceased had passed over but it was present in the lower portion of his body which indicated the possibility of his death having taken place about 8 hours before the postmortem examination. Similarly Dr. P.N. Sharma found semi-digested food in the stomach of deceased which in his opinion indicated that he ingested within two hours. The food gets semi-digested after about two hours of its taking. If on the basis of the opinion of doctor the time of death of deceased is calculated, it certainly comes much more early than

8.00 O'clock in the morning. Gayatribai (PW-9), the wife of deceased, in paragraph-14 of her statement disclosed that though she could not tell 11 the correct time of taking meals by the deceased, but he had gone from the house just 5-10 minutes after taking meals. In these circumstances, presence of semi-digested food in the stomach of deceased militates against the evidence of eyewitnesses who gave time of death of deceased as 8.00 O'clock in the morning. The Apex Court in Shivaji Sahebrao Bobade v. State of Maharashtra-AIR 1973 SC 2622 observed that “The sluggish chronometric sense of the country-side community in India is notorious since time is hardly of the essence of their slow life; and even urban folk make mistakes about time when no particular reason to observe and remember the hour of minor event like taking a morning meal existed. 10.30 a.m. could well have been an hour or more one way or the other and too much play on such slippery facts goes against realism so essential in a testimonial appraisal”, but in the instant case apart from the medical evidence the evidence of alleged eyewitnesses also appeared discrepant and contradictory.

23. Learned Penal Lawyer for the State submitted that the eyewitnesses were rustic villagers, therefore minor inconsistencies in their statements were bound to occur, but they were not of substantial nature. Hence, their evidence was trustworthy. The evidence of doctor about the time of death of deceased is merely an opinion which may vary due to various other factors. The fact that appellant caused the death of deceased stood further established from the fact that human blood was detected on the T-shirt and pents of the appellant.

24. After a close scrutiny of the evidence adduced by the prosecution, we find core of the testimony of witnesses suffering with infirmity which 12 go to create doubt in our minds about its veracity. Admittedly the two independent witnesses examined by the prosecution did not support the prosecution version. In these circumstances, the prosecution case rested solely on the evidence of interested and related witnesses. We are conscious that the relationship is not a factor to affect the credibility of a witness, but, after adopting a careful approach and analyzing the evidence, we noted that the evidence of prosecution witnesses in this case was not credible. The evidence of Ram Vishal (PW-8), the father of deceased, appeared discrepant and contradictory to other witnesses, who happened to be the sister and niece of the deceased. All the aforesaid witnesses made improvements and embellishment to justify their presence at the scene of occurrence some way or the other. It was strange that when deceased had left his house for going to Devendra Nagar, his father, sister and niece went after him giving out various reasons. We also find it suspicious that the incident which is alleged to have taken place at about 8.00 O'clock in the morning on a passage where houses of number of persons were situated, but, except the family members of deceased, none else reached there. The conduct of Ram Vishal (PW-8) also appeared unnatural that he did not raise any hue and cry and did not inform anybody even though he accompanied the deceased. He modulated his version in the court to say that co-accused Danna @ Ram Prakash did not participate in the incident and that Brindawan and Bhanupratap Singh were not present at the place of occurrence.

25. In our considered opinion, in the aforesaid circumstances, the 13 evidence of relative, interested and inimical eyewitnesses cannot be accepted as trustworthy. Suspicion howsoever strong cannot take place of proof. We are compelled to hold that learned trial judge has misappreciated the evidence on record in holding the appellant guilty. We, accordingly find that prosecution failed to establish beyond a reasonable doubt that appellant committed murder of deceased.

26. For the aforesaid reasons, the impugned judgment of conviction and sentence of appellant under Section 302 of the Indian Penal Code and Section 25(1-B)(b) of the Indian Arms Act is set aside. Appellant is acquitted. He be released, if not required in any other case.

27. Appeal allowed. (RAKESH SAKSENA) JUDGE shukla (T.K. KAUSHAL) JUDGE 14 HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR Criminal Appeal No.1928/2002 Hari Ram Shukla vs. The State of Madhya Pradesh J U D G M E N T For consideration (Rakesh Saksena) JUDGE __/12/2012 Hon'ble Shri Justice T.K. Kaushal JUDGE __/12/2012 POST FOR /12/2012 (Rakesh Saksena) Judge ___/12/2012