Jai Singh vs The State of Madhya Pradesh

Sushil Harkauli, Acting C.J.

The sole appellant has preferred this appeal against his conviction u/s 302 IPC and sentence of life imprisonment and fine. The name of the appellant is Jai Singh, S/o Kanhaiyalal, and the PW1 is also Jai Singh, S/o Ranjeet Singh, therefore the appellant is hereinafter referred to as "accused". The incident allegedly took place on 2481992 at about 10 a.m.

There is no direct evidence. The case of the prosecution is based on circumstantial evidence, which comprises of (i) an extrajudicial confession of accused alleged to have been made to PW1, (ii) the deceased having been last seen in the company of accused by PW2, (iii) the motive, alleged to be a property dispute between deceased and the father of the accused, and (iv) the recovery of the weapon of assault namely a lathi at the pointing out of the accused.

The prosecution story as unfolded by prosecution evidence is that there was some enmity between the deceased Gheesoo and father of the accused. On 24/08/1992, the deceased came to the house of the PW2 Meharban at about 8.00 AM in the morning and told the PW2 that the accused and his father are likely to murder the deceased. He told the PW2 that sometime earlier the accused and his father had come to the field of the deceased and the deceased had come to know that they are likely to murder the deceased. Therefore the deceased requested the PW2 to accompany him for lodging a police report. According to PW2, he told the deceased that he would go after eating food. The deceased then went out of the house of PW2 and from outside he asked the PW2 to come out saying that the accused was standing with a lathi for assaulting the deceased. PW2 claims to have seen the accused standing at about 1015 feet from the deceased with a lathi. He also claims that he saw the accused chase the deceased with the lathi. However, the PW2 neither raised any alarm at that time, nor reported the matter to anybody for the next three days. He did not even care to find out the welfare of the deceased for the next three days. This conduct of PW2 has to be considered in the light of the fact that PW2 says in Para8 of his crossexamination that deceased was related to him. The report was lodged by PW2 on 27th August 1992, only after the dead body was discovered. The prosecution has relied upon the evidence of PW2 for the purposes of proving that the deceased was last seen in the company of the accused.

The prosecution story further goes on to say that on 27/08/1992 the accused met PW1 with whom he was not close at all and asked the PW1 to protect the accused. The accused is said to have disclosed about murder to PW1 and is said to have taken the PW1 to a Nala, where the dead body was lying. Thereafter the accused accompanied the PW1 to a place called Dodi. However, the PW1 could not find any conveyance at Dodi and therefore he proceeded to Mehatbada Police Chowki, where he claims to have met police constable Shripad Yadav (PW4) at about 7 p.m. It is a common case of PW1 and PW4 that the crime was reported to the police orally for which both of them went inside the Police Chowki Mehtbada.

However, the defence has produced Radhe Shyam Rathore as DW2, who stated on the basis of the General Diary that on 27/08/1992 Constable Shripad Yadav (PW4) was on patrol duty in Mehtbada and he returned from duty at 12.40 a.m. in the night between 27th28th August, 1992. This is stated on the basis of General Diary entry No. 560. There is no serious cross examination of this PW2 on this evidence supported by the General Diary. This would mean that the statements of PW1 and PW4 that the PW1 met PW4 at the Police Chowki Mehtbada at about 7.00 PM in the evening is highly doubtful, because at 7.00 PM, PW4 was on patrol duty and had not returned to the police chowki till past mid night.

Further, despite the fact that PW1 claims to have reached the Police Chowki at about 7.00 PM, the FIR was not lodged till after mid night. This more than 5 hours gap is not explained by the prosecution. The investigating officer (PW10) says that he started from the police station for the place of incident at 1.00 PM on the night between 2728th August 1992, which is in keeping with the murder being reported after midnight. PW10, the I.O., further says that FIR was lodged on a plain paper, which reduces the certainty of the FIR having being lodged even at the time when it is said to have been lodged.

The suggestion of the defence in the cross examination appears to be that deliberations started after dead body was discovered on 27th August, 1992. The name of the assailant was not known. On the basis of the suspicion due to previous enmity the accused was named in the belated FIR, and two witnesses namely PW1 and PW2 were set up, with PW1 claiming an extrajudicial confession by the accused and PW2 claiming to have last seen the deceased in the company of the accused. PW2 is admittedly related to the deceased. PW1 is alleged to be pocket witness of the police as appears from the suggestion made in the cross examination of PW1 that he was involved in undesirable activities and was an informer of the police. Although these suggestions have been denied by the PW1, but the defence has produced the uncle of PW1, namely Girdharilal as DW3 who has testified about the undesirable activities and closeness of PW1 to the police in his capacity as Police informer. We do not find anything in the cross examination of the DW3 for doubting his evidence. On the contrary, the cross examination suggests that this DW3 had got the PW1 released from the police on earlier occasions. Therefore, there is no logical reason for him falsely testifying against PW1. In para 12 of the cross examination of PW1, there is direct suggestion by the police not finding any witness in regard to the incident/murder and that PW1 being set up as a false witness by the police after dead body was discovered.

According to PW2, the dead body had got decomposed but could be recognized. Further, according to PW2 there were no clothes on the body of the deceased when dead body was discovered, and the body was totally naked. This again does not tally with the prosecution story. There is no reason why all clothes should have been removed from the body of the deceased after the murder.

Having regard to the aforesaid facts and circumstances, we are of the opinion that it would be unsafe to rely upon the testimony of PW2 because being related to the deceased, having seen accused chasing the deceased, and having being told by the deceased that the accused was likely to kill him, this witness does not do anything in the matter from 8.00 AM on 24/08/1992 till after the dead body was discovered on 27/8/1992.

Similarly, we do not find it safe to rely upon the testimony of PW1 not only because of his antecedents, but also because his story about his meeting Constable Shripad Yadav outside the Police Chowki Mehtbada and telling him about the incident and thereafter jointly lodging FIR is unlikely because at that time on 7.00 PM on 27/08/1992 Constable Shripad Yadav (PW4) was most unlikely to have been present at the police chowki as he was at patrol duty and returned to the Police Chowki Mehtbada only after mid night according to General Diary Entry. Moreover, because this PW1 was not at all close to the accused, there does not appear to be logical reason or occasion for the accused to make that extrajudicial confession to him and asking PW1 to protect him when till that time no one had reported the murder, there was no accusation against the accused and even the dead body had not been discovered. The story of PW1 that the accused not only made the extrajudicial confession, but led the PW1 to the dead body is also unlikely. Moreover, the accused had made this extrajudicial confession with the requested that the PW1 should protect him. However, after showing the dead body to the PW1 as alleged by the PW1, when PW1 went towards Dodi, the accused accompanied him upto Dodi, where PW1 could not find any conveyance and he tried to stop some vehicles which did not stop. However all this while when accused was in the company of the PW1, and apparently PW1 was proceeding towards the police station, there was no conversation at all regarding PW1 protecting accused.

Thus the prosecution story does not appeal to us and evidence led by the prosecution is unsafe to rely upon for convicting and sentencing the appellant to life imprisonment in these circumstances.

The appeal is allowed. Conviction and sentence recorded by the Trial Court against the appellant is set aside. Appellant is on bail, he need not surrender. His bail bonds and sureties are discharged. The fine, if deposited, will be refunded to the appellant.