Amol vs State of M.P.

S.K. Dubey, J.—This judgment shall also govern disposal of Criminal Appeals Nos. 10/1984 (Jaisingh v. State of Madhya Pradesh); 11/1984 (Hariyal v. State of Madhya Pradesh) and 12/1984 (Bhurapal alias Shripat v. State of Madhya Pradesh).

All the four appellants, convicted for an offence u/s 302/34, Indian Penal Code, by judgment and order of conviction, dated 18-11-1983, passed in Sessions Trial No 89/1983, by Second Additional Sessions Judge, Morena, have preferred their four separate appeals from Jail.

The prosecution case, in short, is that all the accused persons forming a common intention to commit the murder of one Prabhu son of Gambhira, armed themselves with lathis and came to the ''Tapra'' of Prabhu on 4 3-1983 between 8 and 9 p.m., and in furtherance of their common intention, accused Amol, caught hold of the hands of Photu (PW 2), minor daughter of deceased Prabhu, aged about 10 years, who was sleeping in the ''Tapra'' and tried to drag her out of it. Upon this, Photu cried. Parvati, mother of Photu and deceased Prabhu, father of the girl were awakened by her cries. Amol told Prabhu that Photu is his wife and he would keep her as his wife. Upon this, Prabhu caught Photu and tried to disentangle her from accused Amol. On this, Amol attacked Prabhu with a lathi, and hereafter Bhurapal alias Shripat and Jaisingh s/o Amol also inflicted lathi injuries on Prabhu, who fell down and became unconscious. Accused Hariyal inflicted a lathi injury on Parvati (PW 1). On hearing the cries of Parvati (PW 1) the villagers came at the spot. Seeing this all the accused persons took to their heels. On the next day morning Parvati took Prabhu in a bullock-cart and went to lodge a report at Police Station Tentra, which is six kms. away from the place of occurrence. The first information report (Ext. P-1) was lodged at 9.30 a.m. on 5 3-1983 and a case was registered at Crime No. 17/1983 against the accused persons for offences under sections 307, 147, 148 and 294 IPC. Dr. Matadeen Singhal (PW 4) examined injured Prabhu at 1.30 p.m. and gave injury report (Ext. P-13). Dr. Singhal referred the case to Civil Hospital, Morena, for X-ray and for better treatment at J.A. Group of Hospitals, Gwalior, but Parvati (PW 1) told the Doctor that she had no means or money to take her husband to Morena and Gwalior for X-ray and treatment, which is evident from report slip (Ext.P-14). The injured Prabhu did not regain consciousness and died at 7 p.m. on 5-3-1983. Autopsy was performed by Dr. M.D. Singhal (PW 4). Post-mortem report is Ext. P-16. The Doctor found 3 injuries on the dead body of the deceased--one was in the eye and other two fractures on the temporal bone on both sides with dislocation of anterior cranial fossa and middle cranial fossa. Huge sub-dural blood clots were found on both sides. The cause of death was head injury. On 6-3-1983 investigating officer S.S. Bhadoria (PW 5) went to the place of occurrence in the morning, where he prepared spot map, seized four lathis and took the accused persons in custody, who gave information u/s 27, Evidence Act, vide Exts. P-4, P-5, P-6 and P-7, and at the instance of the accused persons, the lathis were recovered and recovery memos were prepared as Ext. P-8, P-9, P-10 and P-11. The length of these four lathis varied from 3-1/4 cubits to 3-3/4 cubits. After completion of the investigation, the accused persons were challaned.

The accused persons were charged u/s 302/34, IPC. No charge was framed against accused Hariyal for causing injuries to Parvati (PW 1). The defence of the accused was that they have been falsely implicated due to enmity. The prosecution in support of its case examined 3 eyewitnesses, name y, Parvati (PW 1) w/o of deceased Prabhu. Photu (PW 2), daughter of Prabhu and Kaptan (PW. 3). Injury report and post-mortem report were proved by Dr. M.D. Singhal (PW 4). S.S. Bhadoria (PW 5) was examined as the investigating officer. Bahoran Singh (PW 6), Head Constable of Police, proved first information report (Ext. P-1) which was recorded by him. After appreciation of evidence and material on record, the trial Court convicted all the appellants u/s 302/34, IPC, and sentenced each of them for life imprisonment, aggrieved of which all the appellants have preferred these four separate appeals.

Smt. Kusum Sharma, learned counsel for the appellants, contended before us that the first information report (Ext. P-1) has been lodged after a great delay for which no explanation has been given by the prosecution and, because of this delay, the case of the prosecution deserves to be discarded. Learned counsel also contended that after lodging the first information report, the investigating agency did not take any prompt steps, and investigation commenced on the next day, which, learned counsel contended, throws a suspicion on the prosecution case. Other contention raised by the learned counsel was that it was a dark night and there was no source of light; therefore, the witnesses could not have identified the accused persons. Learned counsel then contended that looking to the height, length and breadth of the ''Tapra'' where the incident had occurred, the injuries could not have been caused on the head of Prabhu by lathis. Learned counsel also contended that accused Hariyal had not caused any injury on Prabhu and, as such, it cannot be said that Hariyal also shared the common intention with other accused persons to beat or kill deceased Prabhu. Lastly, learned counsel also contended that there is variance and inconsistency between the statements of Parvati (PW 1) and Photu (PW 2) who are said to be the eye-witnesses in respect of the manner of the occurrence and assault by lathis and, further, there is inconsistency between ocular and medical evidence, as, according to learned counsel, there was no injury on the eye. Photu (PW 2) stated that she was sleeping and she awakened when her father was assault by lathis. Learned counsel pressed into service five decisions of the Apex Court in Ram Narain Singh Vs. State of Punjab, ; Thulia Kali Vs. The State of Tamil Nadu, ; Amar Singh and Others Vs. State of Punjab, ; State of U.P. v. Satish Chandra AIR 1985 (SC) 496 and Palaniswamy Raju v. State of Tamil Nadu 1973 CAR (SC) 410. Reliance was also placed on a recent Division Bench decision of this Court in State of U.P. Vs. M.K. Anthony, . Shri A.S. Yadav, who was appointed by the Legal Aid Board, has also supported the arguments made by Smt. Kusum Sharma and contended that it is a false case against the appellants, and in the facts of the case, the appellants are entitled to acquittal. Shri Govind Singh, learned Government Advocate for the State, took us through the evidence of the witnesses and contended that the evidence produced by the prosecution is reliable, and importance cannot be given to minor discrepancies and technical errors, as the witnesses are rural rustic villagers, but they are honest and truthful, though in their narration of the occurrence in details, unrelated to the main incident, some minor inconsistencies have come on record. Learned counsel also contended that, in fact, there was no delay in the lodging of the first information report. Even if there was some delay, it has been properly explained by the prosecution, because in the night neither any bullock-cart nor any other conveyance was available so as to take the injured to the Police Station. Moreover, Parvati (PW 1) had no money to spend, which would be evident from Ext. P-14. So she could not take her husband for X ray and for proper and better treatment to Morena and then to Gwalior. The defence has not put any questions to the investigating officer for not commencing the investigation immediately after lodging the first information report. It is not the case of the appellants that the prosecution or the investigating agency had any motive to falsely implicate the accused persons. Lastly, Shri Govind Singh contended that the accused persons were charged u/s 302/34, IPC, and the cumulative effect of the injuries on the body of the deceased was fatal. Therefore, the trial Court rightly convicted the appellants u/s 302/34, IPC. Learned counsel also placed reliance on two decisions of the Apex Court in Shivaji Sahebrao Bobade v. State of Maharashtra 1973 CAR (SC) 410 and State of U.P. Vs. M.K. Anthony, , and a Division Bench decision of this Court short-noted as SN 212, 1980 (1) MPWN.

After hearing counsel and on going through the record and giving due consideration to the submissions made by the learned counsel, we are of the opinion that accused/appellant Hariyal deserves to be acquitted, and the appeals of the other 3 accused persons, Amol, Jaisingh and Bhurapal alias Shripat, deserve to be dismissed.

As regards the role played by accused Hariyal, there is not an iota of evidence that he, though came armed with the other accused persons, inflicted any injury on the body of deceased Prabhu No overt act in relation to commission of murder of Prabhu has been attributed to Hariyal by the prosecution. On the other hand, Parvati (PW. 1) has stated that while Amol, Jaisingh and Bhurapal assaulted and inflicted lathi injuries on Prabhu, Hariyal caused injury on her. The charge against Hariyal is u/s 302/34, IPC, for causing, in furtherance of the common intention of the accused persons, the death of Prabhu there is no charge against Hariyal for inflicting lathi injury on Parvati (PW. 1). From the facts and the evidence, the prosecution was bound to prove that Hariyal also acted in furtherance of the common intention of the accused persons to kill Prabhu or to inflict injuries on him. At this stage, we may also say to clear the doubt that the prosecution case, as it stands, was that accused Amol with three others came to the ''Tapra'' of Prabhu to take Photu (P.W. 2) and not to kill Prabhu, and the incident developed at the spot preceded by altercation and resistance by Prabhu. In the absence of any charge against Hariyal for inflicting injuries on Parvati, he cannot be convicted for that offence too. As such, the appeal (No. 11 of 1984) of Hariyal deserves to be allowed.

As regards the conviction of appellants Amol Jaisingh and Bhurapal alias Shripat there is clear convincing evidence of Parvati (PW. 1), Photu (PW 2) and Kaptan (PW. 3) against them. PW. 2 Photu''s statement stands corroborated by Parvati (PW. 1) and Kaptan (PW. 3). Parvati who was also injured in the incident, lodged the first information report. Kaptan (PW. 3) resides about 50 yards away from the ''Tapra'' of Prabhu. Deceased Prabhu was a Banjara by caste, and accused persons are Seharias, who are also residing about 50-60 years away from the ''Tapra'' of Prabhu and, this would be evident from Ext P-2, the spot map. The accused persons, the victim and the prosecution witnesses were all residents of the same locality, and the witnesses had enough opportunity to see the accused persons from close quarters. Though Parvati (PW. 1) in her cross-examination has stated that Prabhu had no family or friendly relations with Amol nor appellant Amol used to come to Phabhu''s house, this statement of the witness in cross-examination is of no help to the defence, as she has not admitted that she was not knowing the accused persons from before. Though it was a dark night, as the accused persons and the prosecution witnesses were residents of the same locality and were known to each other, the witnesses could have very well identified them even in the night, as there was no distance at the time of occurrence of the prosecution witnesses with the accused persons and there was exchange of talks and altercation preceding the incident between Prabhu and Amol and other accused. Therefore, it cannot be said that the accused could not have been identified by the prosecution witnesses.

The contention of the learned counsel for the appellants that the first information report (Ext. P-1) was lodged after a great delay, and on this ground alone the prosecution case deserves to be discarded. Suffice it to say, it has come in evidence that in the night neither any bullock-cart nor any other mode of conveyance was available so as to take the injured to the Police Station to lodge the report. Further, Parvati (PW. 1), wife of the deceased, was so poor that she was not having a single rupee. Therefore, when arrangements were made by others in the morning of the next day, she took the deceased to the Police Station to lodge the report. Therefore, the delay, if any, in our opinion, properly explained, and on this basis the case of the prosecution cannot be thrown out. Moreover, it is also settled law that prompt lodging of the first information report is not a guarantee of truth, and delayed first information report, if delay is not properly explained, should be discarded. It is, no doubt, true that the first information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed the names of the actual culprits and the part played by them as well as the names of eyewitnesses present at the scene of occurrence. But because of delay in lodging of the first information report, we do not find in this cash any embellishment or an afterthought story. Moreover, in Thulia Kali (supra), relied upon by the learned counsel for the appellants, itself, it is said that if the first information report is a delayed one, it is essential that the delay in lodging of the first information report should be satisfactorily explained, which, we find, in the circumstances of the case, has been satisfactorily explained.

The contention that the investigation was not started on the same day when the first information report was lodged has also no merit. It is, no doubt, true, the investigating agency, as soon as it gets an information, which sets the criminal law in motion, it is the bounden duty of the investigating agency to commence its investigation, but in this case as the defence has not put any questions to the investigating officer for not commencing the investigation immediately after the lodging of the first information report, the prosecution case for the lapse on the part of the investigating officer cannot be thrown out. Moreover, we feel that there is not an iota of evidence to draw an inference against the prosecution of false implication.

The third contention of the learned counsel for the appellants that the medical evidence is at variance with ocular evidence, also has no merit, as we find from the injury report as well as the post-mortem report and the statement of Dr. M.D. Singhal (PW. 4) that there was an injury in the eye of the deceased. The contention that the height of the ''Tapra'' was not much and, as such, lathi injuries could not have been caused, has also no merit. It has come in evidence of Parvati (PW. 1) that the height of the ''Tapra'' was five to six cubits and the lathis'' length varied from 3-1/4 cubits to 3-3/4 cubits. The injuries received by Prabhu were on temporal region and, as such, it cannot be said that they could not have been caused by giving lathi blows because of low height of the ''Tapra''.

As regards the minor inconsistency in the evidence of the prosecution witnesses, suffice it to say, we have to keep it in mind while scanning the evidence of witnesses that variances on the fringes, discrepancies in details, contradictions in narrations and embellishments in essential farts cannot militate against the veracity of the core of the testimony provided there is that impress of truth and conformity to probability in the substantial fabric of testimony delivered. The witnesses are very poor, illiterate, rustic Banjaras. In their testimony we do not find any material discrepancy. The discrepancies pointed out are minor discrepancies on trivial matters, not touching the core of the case. Hypertechnical approach in the facts and circumstances of the present case cannot be made, as, on evaluation, we find that it is not against general tenor of the prosecution case. The trial Court had the opportunity to form an opinion about the general tenor of the evidence given by the witnesses and had evaluated their evidence. This Court as an appellate Court is not having this benefit. Therefore, we have to attach due weight on evaluation and appreciation of evidence made by the trial Court. We do not find weight and formidable reasons to reject the testimony of either Parvati (PW. 1), or Photu (PW. 2) or Kaptan (PW. 3). Their testimony is honest and truthful. The minor inconsistencies are unrelated to the main incident. Even honest and truthful witnesses may differ in some details unrelated to the main incident, because of power of observation, retention and reproduction differ with individuals Moreover, cross-examination is an unequal duel between a rustic and refined lawyer. (See State of U.P. v. M.K. Anthony) (supra).

Lastly, it has come in the prosecution evidence that first appellant Amol gave lathi blow on Prabhu, and thereafter Bhurapal and Jaisingh gave lathi blows. Their part or overt act in the incident cannot be segregated, and in this case the cumulative effect of the injuries, as were found on the body of the deceased, was fatal therefore the three appellants, namely, Amol, Jaisingh and Bhurapal alias Shripat, were rightly convicted by the trial Court u/s 302/34, IPC.

In the result, appellant Hariyal (Cri. Appeal No. 11/1984) succeeds and is allowed. The conviction and sentence awarded to the appellant Hariyal u/s 302/34, IPC, is set aside and he is acquitted. He shall be set at liberty forthwith.

The appeals (Cr. A. No. 9/1984; Cr. A. No. 10/1984 and Cr. A. No. 12/1984) of appellants Amol, Jaisingh and Bhurapal alias Shripat are dismissed.