Balaram & Others vs State of Madhya Prades

Conviction u/S,"Sentence

Awarded",Fine

148 IPC,1 Year R.I.,â€

302 read with Sec 149 IPC,Life Imprisonment,"Rs.500/-

with

default

clause of

one

month R.I.

323 read with Sec 149 IPC,1 Year R.I.,--

1 The first statement of the deceased is the FIR Ex. D-8C which was lodged by him in an injured state at about 5:10 p.m. on 05.03.2007 to the,,

effect that one Mahesh Goli stepped on the irrigation pipe, to which the deceased objected by exclaiming that the pipe would burst. At that moment, all",,

the appellants forming unlawful assembly came armed with lathis, abused the deceased and threatened him. Therafter, the appellants surrounded the",,

deceased and started assaulting him with lathis. The deceased to save himself from the assault, ran into his house, but the appellants chased him inside",,

the house and caught hold of him and again started assaulting by exhorting that the deceased will be put to an end today.,,

2 After lodging of the FIR, statement of the deceased was recorded u/S 161 Cr.P.C. vide Ex. P-37 where a different story was revealed that on",,

05.03.2007 at 4:30 p.m. when the deceased was going for pooja from home to his agricultural fields and was passing the house of Balram, all the",,

appellants met him on the way and started abusing and assaulting with lathi after forming an unlawful assembly. On crying for help Parmal and,,

Damodar came to the spot to save the deceased.,,

Parmal and Damodar were also assaulted. Thereafter the deceased reveals in his statement recorded u/S 161 Cr.P.C. that Vishnu and Badan Singh,,

ultimately rescued him. The deceased also reveals that he sustained injuries on his chest, head, left hand, foot, wrist, knee and ankle etc. and that the",,

deceased has been brought in a bullock cart to the police station by Vrindavan, Damodar, Parmal and Rambeti.",,

Now coming to the testimonies of eye-witnesses, PW-1,PW-8 and PW-9 namely Parmal, Damodar and Rambeti, a threadbare analysis is",,

necessary by a comparative assessment of the same with that of the FIR and the statement of the deceased recorded u/S 161 Cr.P.C.,,

1 In regard to Parmal PW-1, it appears that his statement u/S 161 Cr.P.C. was not recorded as the same is not on record. However, Parmal on",,

being examined before the Court as PW-1 deposed that he knew the deceased and as well as the appellants. On 05.03.2007 at around 4:00 p.m. PW-,,

1 alongwith Mahesh, Vishambhar and Damodar, he was harvesting the crop in the fields near the spot when the deceased Ramnath was going for",,

Pooja towards his agricultural field. The witness further testifies that all the appellants wielding lathi and lohangi surrounded the deceased and started,,

assaulting. PW-1 further testifies that when he along with Damodar and Rambeti ran to save the deceased, they were also assaulted with lathi by the",,

appellants. The deceased fell down on the spot whereafter PW-1 alongwith others took the deceased to the police station in a bullock cart where the,,

deceased in injured state lodged the FIR and the statement of the deceased was also recorded separately, whereafter the deceased was taken to the",,

hospital. PW-1 further reveals that he was subjected to medical examination at Utila hospital while the deceased was treated at Gwalior hospital. This,,

witness thereafter states that deceased died during treatment. PW-1 admitted his signatures on Ex. P-1 Safina Form, Ex. P-2 Naksha",,

Panchayatnama, Ex. P-3 Crime Details form, Ex. P-4 Arrest/Court Surrender Memo of Lakhan, Ex. P-5 Memorandum u/S 27 of Evidence Act of",,

Lakhan, Ex. P-6 Seizure Memo of 'Ek baans ki lathi, etc., Ex. P-7 Seizure memo of 'Ek Lathi, etc.' Ex. P-8 Absconding memo of co-accused",,

Rajendra.,,

11.2 The factum of past enmity between the rival groups on the issue of boundary dispute of the agricultural fields was also revealed by PW-1 in his,,

testimony. PW-1 also stated in his cross-examination that the place where the incident took place was 500-600 ft. from where PW-1 was harvesting,,

the crop. Importantly, in the cross-examination PW-1 denies having seen any ladai/jhagra. PW1 further denied that he saw anyone being beaten. PW-",,

1 states that when he came to the spot, he did not see Rajendra (absconding accused), Betal and Lakhan (both appellants herein). This witness also",,

expressed ignorance as regards the said two appellants being injured. Importantly, PW-1 also revealed in his cross-examination that he had",,

accompanied the deceased right from the spot till his death and during this interregnum period, the deceased never regained consciousness. Further,",,

revelation made in cross-examination by PW-1 is that when he reached the spot, he did not see any appellants there, however, he saw the deceased",,

lying in an unconscious injured state, whereafter PW-1 alongwith others took the deceased in unconscious state to the police station where police",,

personnel advised PW-1 and his companions to take the injured deceased to the hospital. This witness also reveals that police personnel had,,

accompanied them in the journey from the police station to the hospital. PW-1 further reiterates that when deceased in injured state was taken to the,,

police station, he was unconscious. This witness further reiterates in the cross-examination that till the time he alongwith his companions picked up the",,

injured deceased from the spot till the death of the deceased, the deceased has not spoken anything. As regards the injures sustained by him, PW-1",,

deposes that he was not beaten by anybody, but the injuries sustained by him were on account of his falling down on the ground. PW1 further testifies",,

that he has no knowledge as to how the incident occurred and how the deceased sustained injuries. Following inference can be derived from testimony,,

of PW-1:,,

PW-1 was though proposed as an eye-witness, but in fact had not witnessed the incident and since he clearly stated that he though heard some",,

commotion at the time when incident took place, but by the time he arrived on the spot, the deceased was lying on the ground with none of the",,

accused in sight.,,

On arriving on the spot, did not see any of the appellants,",,

PW-1 did not witness the assault.,,

PW-1 also denied that he was assaulted by the appellants by stating that the injuries sustained by him were on account of falling down on the,,

ground while running towards the spot.,,

PW-1 stated that the deceased in injured state never regained consciousness from the time of incident till his death and thus the prosecution story,,

that the deceased had lodged the FIR becomes doubtful.,,

11.3 Coming to the testimony of the other eye-witness PW-8 Damodar, it is seen from the record that no statement of the said witness u/S 161",,

Cr.P.C. was recorded, but PW-8 testified in the Court that he knew the deceased and as well as the appellants. He testifies further that on the day of",,

the incident, he was harvesting chana in his agricultural field, when he heard commotion. He further states that he ran and come to the spot where he",,

saw the deceased Ramnath lying on the ground, but there was nobody else present at the spot. This witness in examination-in-chief has categorically",,

stated that he did not see any of the appellant assaulting the deceased on the spot. This witness further admits his signatures on the Ex. P-1 Safina,,

Form and on Ex. P-2 Dead Body Panchnama. The prosecution declared this witness hostile and cross-examined him. In cross-examination, PW-8",,

further reveals that the injuries sustained by him were due to falling down on the ground while he was rushing towards the spot. PW-8 categorically,,

denied that the injuries sustained were due to the assault made by the appellants. PW-8 further in his cross-examination reveals that when deceased,,

was picked up from the spot, the injured deceased was unconscious and when PW-8 alongwith his companions took the injured deceased to the police",,

station, the deceased was still unconscious and police personnel told PW-8 and his companions to take the injured deceased to the hospital. PW-8 in",,

similar fashion as the testimony of PW-1 testifies that from the time when the injured deceased was picked up from the spot till his death in the,,

hospital, right through PW-8 had accompanied the injured deceased and during this period, the injured deceased do not speak anything since he was",,

unconscious.,,

11.4 The revelations made by PW-8 are more or less of the same nature and probative value as that of PW-1. PW-8 has also caste serious doubts at,,

the prosecution story that the deceased in injured state was conscious enough to lodge the FIR and to make statement u/S 161 Cr.P.C..,,

11.5. Thereafter, remains the third and last eye-witness who is PW-9 Rambeti, the wife of the deceased. The statement of Rambeti PW-9 was",,

recorded u/S 161 Cr.P.C. vide Ex. D-1 where she reveals that on 05.03.2007 at about 4:30 p.m., she was cooking food at home when her husband,",,

the deceased left home for the temple to do pooja. Sometime, after he left home, Rambeti heard noises of commotion which impelled her to come out",,

of her house, from where she saw the appellants armed with lathi assaulting her husband, near the house of Balram. Rambeti further reveals that she",,

rushed to the rescue of her husband to the spot where she sustained a few injuries due to assault made by the appellants. She further reveals that,,

appellants continued to beat her husband till Parmal, Damodar, Badan Singh and Vishambhar came to the spot. Thereafter, she states that she",,

alongwith Vishambhar and Damodar took her husband in injured state to the Utila Police Station, from where the deceased was taken to Gwalior for",,

treatment. PW-9 in her statement before the Court testified that the deceased was her husband she knew the appellants. This witness revealed about,,

the incident more or less in the same lines as the revelations in her statement recorded u/S 161 Cr.P.C. She further testifies in contradistinction to the,,

testimony of PW-1 and PW-2 that at the police station, her injured husband could speak.",,

11.6 From the above testimony of the wife of deceased, PW-9, it is revealed that she more or less supported the story of the prosecution. However,",,

the fact that she was cooking food at the time when the incident took place as revealed by her in her Sec 161 Cr.P.C. statement, was not disclosed in",,

her testimony. On being confronted in this regard,PW-9 deposed that she had disclosed to the police during the recording of Sec 161 Cr.P.C.",,

statement that she was cooking food.,,

The question now remains is that in the absence of any independent witness owing to the other two eye-witnesses PW-1 and PW-2 having,,

rendered untrustworthy, can this Court rely upon the testimony of PW-9 Rambeti(wife of the deceased).",,

Sustaining the conviction solely on the basis of the testimony of the wife of deceased is fraught with certain pitfalls as discussed below;,,

i) PW-9 is closely related to the deceased. The close relationship of the witness may not by itself render the testimony untrustworthy, but since there",,

is no other corroborative piece of ocular evidence, the testimony of PW-9 has to be looked at with great care and caution before allowing it to alone",,

sustain a conviction.,,

ii) A microscopic reading of the testimony of PW-9 reveals that the said witness has more or less stuck to her earlier stand as regards the date and,,

time of the incident and having seen the appellants beating her husband from a distance and thereafter rushing to the spot to save her husband and in,,

the process sustaining a few injuries which have also been proved by the MLC. The ocular evidence of PW-9 does inspire confidence, however in the",,

absence of any other corroborative eye-witness, the factum of the appellants assaulting the deceased stands proved to the extent that PW-9 saw them",,

assaulting the deceased from a distance. Though, PW-9 does not specify any particular injury on any particular part of the body of the deceased to",,

any particular appellant, but this minor infirmity can be ignored as the sight of her husband being beaten must have made PW-9 to panick and in the",,

process loosing her mental equilibrium to a little extent and therefore it is understandable that she could not notice as to which appellant inflicted which,,

injury or which appellant assaulted on the vital part of the deceased. Apart from omnibus allegation that all the appellants assaulted with lathi and,,

lohangi, which have been recovered from them, the case lacks clinching evidence toestablish as to which of the appellants caused the fatal injury",,

sustained on the head.,,

Another important aspect in the present case is that the factum of meeting of minds prior to or during course of the incident is not established for,,

the obvious reason of absence of evidence that all the appellants had shared a common object for putting an end to the life of the deceased. It is quite,,

possible, that Lakhan who is the only injured to have sustained a fracture of metacarpal bone of the left hand may have been assaulted by appellant",,

Betal from whom alone lohangi (weapon more lethal than lathi used by all other appellants) is recovered and seized vide Ex.P-28. However,the said",,

injured Lakhan has not supported the prosecution story.,,

1 In the absence of any evidence to prove the factum of common object between all the appellants, it would be unsafe to convict any of the",,

appellants with the aid of Sec 149 IPC even for causing injury, much less murder.",,

The issue of cross-case arising out of the same incident has also been raised by learned counsel for the appellants, but the same is not being",,

considered as the fate of the said cross-examination is neither known to the prosecution nor to the appellants.,,

In view of above analysis and in the absence of corroborative evidence of independent witnesses, this Court deems it appropriate that it would not",,

be safe to rely upon the sole testimony of eye-witness PW-9 who is the wife of the deceased to sustain conviction u/S 302 IPC, especially when the",,

testimony of PW-9 does not inspire confidence to bring home the charge of murder beyond all reasonable doubts.,,

There are certain embellishments, contradictions and omissions when the testimony of PW-9 is compared with her earlier versions and other pieces of",,

evidence on record. The offence punishable u/S 302 IPC, thus cannot be found proved against the appellants.",,

In view of the above all the 9 appellants in appeal i.e. Cr.A. No. 138/2009, Cr.A. No. 141/2009 and Cr.A. No. 142/2009 stand acquitted of the",,

charge u/S 302, 148, 302/149 and 323/149 IPC and as a necessary consequence, the impugned judgment of conviction dated 12.01.2009 in S.T. No.",,

203/2007 rendered by Additional Session Judge, Distt. Gwalior is set aside.",,

(i) The appellants in Cr.A. No. 138/2009 are on bail. They need not surrender. Their bail bonds and surety bonds are discharged.,,

(ii) As regards Cr.A. No. 141/2009 and Cr.A. No. 142/2009, the appellants therein are reported to be in jail. They be set at liberty forthwith, if not",,

wanted in any other criminal case.,,

Let a copy of this judgment alongwith the record be sent back to the concerned trial Court for necessary compliance.,,