Govind @ Ramdulari vs State of M.P. (Now C.G.)

Hon''ble Shri Sunil Kumar Sinha, J.—These appeals are directed against the judgment dated 31st of December, 1996 passed in Session Trial No. 51/96 by the Sixth Additional Session Judge, Bilaspur. By the impugned judgment, appellant-Abhibaran @ baran has been convinced u/s 302 IPC and the other 2 appellants have been convicted u/s 302/34 IPC and all have been sentenced to undergo imprisonment for life. The facts, briefly stated, are as under:--

The case of the prosecution is that on 8.10.95 at about 8.00 a.m., five accused person (A-1 to A-5) formed an unlawful assembly, participated in rioting and in furtherance of the common object of the said assembly committed murder of deceased-Maniram. Thus, the accused persons were prosecuted u/s 147 & 302/149 IPC. The case of the prosecution was based on eye-witness account of Sitaram (PW-2) and Puniram (PW-6). Sitaram (PW-2), after seeing the incident, informed Satrughan (PW-8-son of the deceased) who further informed Ghanshyam (PW-1-brother of the deceased). The F.I.R. (Ex.-P/1) was lodged by Ghanshyam (PW-1). When Satrughan (PW-8-son of the deceased) was informed, Ghanshyam (PW-1-brother of the deceased), Sukhin (PW-3-wife of the deceased), Shahodra (PW-4-mother of the deceased) and Dhaniram (PW-9-another brother of the deceased) had immediately reached to the place of occurrence and the deceased made oral dying declaration before them. The prosecution, thus, came with two sets of evidence. First, eye-witness account of Sitaram (PW-2) and Puniram (PW-6) and second, oral dying declaration before the above 4 witnesses. The learned Session Judge did not rely on the evidence of oral dying declaration and the same was rejected. Out of 2 eye-witnesses, Puniram (PW-6) turned hostile. The Session Judge relied on the sole testimony of Sitaram (PW-2) and convicted and sentenced the appellants (A-1 to A-3) as aforementioned. However the 2 co-accused persons (A-4 & A-5) were acquitted.

Mr. Basant Kaiwartya, learned counsel appearing on behalf of the appellants, vehemently argued that Sitaram (PW-2) was unreliable; though he named all the accused persons in his 161 Cr.P.C. statement, but in his court evidence, he omitted the names of 2 accused persons (A-4 & A-5); there is evidence of partibandi in the village and the complainant and the accused belong to different groups; though Sitaram (PW-2) claims to state the names of all the assailants (A-1 to A-5) to Satrughan (PW-8), and Ghanshyam (PW-1) was informed, but the F.I.R. (Ex.-P/1) contains the names of only 4 persons; Sitaram (PW-2) could not give any explanation regarding the above vital omissions; therefore, the conviction based on sole testimony of Sitaram (PW-2) cannot be sustained.

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 Session Court.

We have heard learned counsel for the parties at length and have also perused the records of the sessions case.

The incident took place on a public road near one hotel. Sitaram (PW-2) is a chance witness. He claimed that he was present near the hotel at the time of the incident. He saw that A-1 to A-3 were present at the Chowk near a Thela. Deceased-Maniram was also present there. Seeing this, A-1 and A-3 caught the arms of the deceased and A-2 started assaulting the deceased by lathi. He continued to assault even after the deceased fell down. A-1 and A-3 continued to hold the arms of the deceased even after he fell down. A-2 also continued to assault the deceased by lathi. Thereafter the deceased was made to lay down by putting his stomach towards the ground, and then, A-2 assaulted to the testicles of the deceased. Then, A-2 said to A-3 that now he has become tired, therefore, he should continue to assault the deceased. A-2 then gave his lathi to A-3 and said to bring a tabbal saying that he will cut down the deceased. Thereafter he (Sitaram) ran away from the place of occurrence and narrated the story to Satrughan (PW-8).

Sitaram (PW-2), in his court evidence, thus, omitted the names of A-4 and A-5. According to his court version these persons were neither present there not they in any manner had participated in commission of murder of the deceased. Since this was a vital omission made by Sitaram (PW-2), the public prosecutor, without declaring him hostile, asked clear question in Para-3 of his examination-in-chief about omission of the names of A-4 and A-5 referring to the case diary statement (Ex.-P/2) of this witness. On the said question, Sitaram (PW-2) said that he had not given such statement to the police taking the names of A-4 and A-5, and if their names have been written as assailants attributing overt act to them in his 161 Cr.P.C. statement (Ex.-P/2), he cannot say as to why the police has written like that. In last line of his examination-in-chief, he denied the suggestion of the Public Prosecutor that it is wrong to say that he is giving false statement to save A-4 and A-5.

In cross-examination by the defence, various exaggerations made by him in examination-in-chief were put to him. He deposed in Para-8 that he had stated before the police that the deceased was caught by arms by A-1 and A-3; the deceased was made to lie by stomach; the deceased was beaten on his testicles; thereafter his body was turned-over; then A-2 said A-1 and A-3 to bring a tabbal; and A-2 said to A-1 and A-3 that he has now become tired so they should assault the deceased. If above facts are not mentioned in his diary statement, he cannot tell the reason for the same.

The case of the prosecution is that Sitaram (PW-2) narrated the incident to Satrughan (PW-8-son of the deceased) who further narrated it to Ghanshyam (PW-1) and Ghanshyam lodged the F.I.R. (Ex.-P/1). The contents of the F.I.R. would show that the name of Harprasad (A-4-acquitted accused) is not mention in the F.I.R. If, in fact, Sitaram (PW-2) had seen the incident and had narrated the same to the above witnesses who then lodged the F.I.R., there was no reason to omit the name of one of the alleged assailant i.e. Harprasad (A-4).

Apart from the above, it also comes in the evidence of Satrughan (PW-8) that there was parti-bandi in the village and in Para-7 of his evidence, he deposed that Sitaram (PW-2) was also a participant in the incident as he was also indulged in marpit.

On due appreciation of evidence of Sitaram (PW-2), we find that in trial, he adopted the method of pick & choose. In his diary statement (Ex.-P/2) he took the names of all the 5 accused persons (A-1 to A-5), but in his court evidence, he left the names of A-4 and A-5. Even on explanation sought by the Public Prosecutor in his examination-in-chief, he did not agree that the above 2 accused persons (A-4 and A-5) were also present at the place of occurrence and they also participated in assault. This was a vital omission in his court evidence. Apart from the above, there are many exaggerations on vital points in his court evidence which are omissions in his diary statement. The F.I.R. which was totally based on the information of Sitaram (PW-2) also does not contains the name of the alleged assailant (A-4).

On the above conduct of Sitaram (PW-2), his evidence becomes shaky and unreliable. We are of view that the learned Session Judge, thus, fell into error by resting the conviction on the sole testimony of Sitaram (PW-2). For the foregoing reasons, the appeals are allowed. The conviction and sentences awarded to the appellants u/s 302 & 302/34 IPC are set-aside. The appellants are acquitted of the charges framed against them. The appellants were arrested on 10.10.95 and were released on bail by order dated 3.2.2003. It is stated that they are on bail. Their bail bonds are cancelled and sureties stand discharged.