Mahendra Singh and another vs State of M.P.

S.L. Jain, J.

Appellants Mahendra Singh and Karan Singh stand convicted u/s 302/149 of the Indian Penal Code with sentence of imprisonment for life and u/s 147, Indian Penal Code with sentence of two years R.I. vide impugned judgment dated December 13, 1989, passed by the First Additional Sessions Judge, Tikamgarh in Sessions Trial No. 151/1988.

PW.2 Ganesh Prasad is the son of deceased Nandlal. PW.5 Chhotelal is the younger brother of deceased Nandlal. Biniya Bai PW.16 is the widow of deceased Nandlal. About 2-1/2 years before the date of incident, a Panchayat of Thakur community was held at Vindhyavasini Temple, Baldevgarh. When the proceedings in the panchayat were over, acquitted accused Jagat Singh, called Rao Raja alias Munna Raja alias Arjun Singh another acquitted accused, R/o Jagra and informed him that he was assaulted by deceased Nandlal Chamar of Jinagarh which amounted to humiliation of the Thakur community and, therefore, he sought help of Rao Raja in the matter. Rao Raja swore in the name of goddess Vindhyavasini stating that he will finish Nandlal. He also assured Jagat Singh that if he will not be able to finish Nandlal, he will not live in his village Jagora.

On July 7, 1987, at about 8.00 A.M Nandlal was purchasing Nimboli i.e. fruits of Neem tree for his shop. Appellants and seven acquitted accused namely Jagat Singh, Meharban Singh, Arjun Singh, Bhuraju, Ram Raj Singh, Rao Raja and Mukundi reached at the shop of Nandlal and wielded lathi blows on him. While dealing lathi blows accused persons were telling Nandlal that he behaves like a leader and assaults Thakurs. On hearing alarm, Ganesh, PW.2, Chhotelal PW.5 Biniya Bai PW.16 and Radhiya Bai PW.l reached at the place of occurrence. Bhagwandas, Nathua, Pyarelal and Pappu also reached there. All these persons witnessed the incident.

After assaulting Nandlal accused persons dragged him upto the Beda (field of sugarcane) of one Ganua and left him there. Accused persons threatened all persons present there that if they lodge any report they will also meet the similar fate. Somehow Biniya Bai and Radhiya Bai reached at police station Baldevgarh and lodged a report regarding the incident. Biniya Bai also informed the police that her husband is not being allowed to come to the police station to lodge the report. Since it was a report of non-cognizable offence, it was recorded in Rojnamcha Sanha No. 193 dated 7-7-1987.

Head constable, Mohd. Ahmed and two constables were deputed for necessary action. Head Constable Mohd. Ahmed on reaching the spot recorded Dehati Nalsi vide Ex.P.1. This Dehati Nalsi was lodged by Ganesh Prasad PW.2, son of the deceased. On the basis of this Dehati Nalsi an offence punishable under sections 147, 148, 149 and 307/34 of the Indian Penal Code was registered at police station Baldevgarh, vide Ex.P.15. Nandlal was sent for medical examination. He was examined by Dr. B. Santoshi, PW.6 who found as many as 10 injuries on his person. At the time of examination Nandlal was unconscious. Dr. Santoshi opined that the injuries sustained by Nandlal were caused by hard and blunt object.

Nandlal succumbed to his injuries at about 9.45 P.M. in Primary Health Centre, Baldevgarh. On the information given by Primary Health Centre, Baldevgarh, Marg was registered. Inquest Panchnama was prepared by Inspector O.M. Gautam vide Ex. P.5. The dead body of Nandlal was sent for post mortem examination. Dr. R.K. Sharma PW.18, conducted post mortem examination on his dead body and found following injuries:

Abrasions 2 cms x 2 cms over parieto occipital region of skull.

Contusion with abrasion 2 cms x 16 cms on scapular region.

Abrasion 1 cm x 2 cms on the face.

Contusion 2 cms x 11 cm.

Two contusions 15 cms x 2 cms and 5 cms x 2 cms on the left leg.

Abrasion with defuse swelling over left ankle joint.

Lacerated wound 2 cms x 1.5 cms on the right second toe.

Contusion 2 cms x 4 cms on right thigh.

Dr. Sharma opined that all the injuries were caused by hard and blunt object. In the opinion of Dr. Sharma the mode of death was coma caused by sub dural haemorrhage and the death was homicidal in nature.

At the instance of accused Rajaram a lathi was seized as per Ex. P. 10. At the instance of Arjun Singh, a lathi was seized as per Ex.P.11. At the instance of accused Bhura, a lathi was seized as per Ex.P.19. At the instance of accused Meharban Singh a lathi was seized vide Ex.P.20. At the instance of accused Jagat Singh, a lathi was seized as per Ex.P.23. At the instance of accused Mahendra Singh, a lathi was seized as per Ex.P.24. At the instance of accused Karan Singh, a lathi was seized as per Ex.P.27.

Accused Badde alias Mukundi was identified by witnesses Ganesh Prasad PW.2 and Biniya Bai PW.16 in identification parade, held by Executive Magistrate as per Ex.P.2.

After investigation a challan was filed against appellants and acquitted accused for the aforesaid offences, and the case was committed to the Court of Session.

The learned Additional sessions Judge framed charges against appellants and seven acquitted accused persons.

All the accused persons abjured their guilt and pleaded that they have been falsely implicated.

After concluding the trial, the learned Additional Sessions Judge, found both the appellants guilty for the offence punishable under sections 302/149 and 147, Indian Penal Code and as such convicted and sentenced them as indicated above. The learned Additional Sessions Judge, however, did not find the other seven accused persons guilty of the offence charged and accordingly acquitted them.

Aggrieved by the conviction and sentence recorded by the Additional Sessions Judge, the appellants have filed this appeal.

We have heard Shri S.C. Datt, Senior Counsel with Shri Siddarth Datt, Advocate for the appellants and Shri S.K. Rai, for the State.

Shri S.C. Datt, learned senior counsel appearing for the appellants led us through the record and contended that the learned Additional Sessions Judge has committed an error in holding the appellants guilty for the charges levelled against them. He submitted that the conviction and sentence of the appellants are not legally sustainable. On the other hand, Shri S.K. Rai, learned State counsel has supported the impugned judgment rendered by the trial Judge convicting and sentencing the appellants as indicated above.

The first question that arises for determination is whether Nandlal died homicidal death. PW.6 Dr. B. Santoshi has stated that he examined deceased Nandlal on 7-7-1987 and found as many as 10 injuries on his person. All the injuries were caused by hard and blunt object. When patient was brought to him he was unconscious. During treatment Nandlal died in the Baldevgarh, Primary Health Centre at 9.45 PM. He informed the police about the same vide Ex.P.7.

Dr. R.K. Sharma PW.18 has stated that he along with Dr. S.C. Gupta conducted the post mortem examination on the dead body of deceased Nandlal and found as many as 8 injuries described in detail hereinabove. He opined that the death of Nandlal was homicidal. Ex.P.31 is the report of Dr. Sharma, PW18. From this evidence it is clear that Nandlal died homidical death. Learned counsel for appellants has not very seriously disputed that the death of Nandlal was homicidal.

This brings us to the crucial question as to who caused the death of Nandlal ? Prosecution examined PW.1 Radhiya Bai, PW.2 Ganesh Prasad, PW.5 Chhotelal, and PW.16 Biniya Bai as eye witnesses. Radhiya Bai PW.1, brother''s wife of deceased, has stated that when Nandlal was purchasing Neboli, accused persons namely Arjun Singh, Bhurua, Ram Raja, Karan Singh, Mahendra Singh, Meharbhan Singh and Jagat Singh dealt lathi blows on Nandlal. She along with Biniya Bai, PW.16, and Chottelal PW.5 witnessed the incident. Thereafter the accused persons dragged Nandlal upto the Beda of Ganua and after leaving him there, took to their heels. At about 12 O''Clock she, with the help of Biniya Bai, and Bhagunti brought Nandlal at the house. She has also stated that accused Rao Raja and Mukundi had also participated in the incident.

Ganesh PW.2 who is a son of deceased has stated that on the fateful day, he along with his father Nandlal, was purchasing Neboli on the side of the road, accused persons namely, Mahendra Singh, Karan Singh, Jagat Singh, Meharban Singh, Arjun Singh, Bhuraji and Ram Raja and three unknown persons came armed with lathis and dealt lathi blows on Nandlal. On hearing the alarm of deceased, his mother Biniya Bai and aunt Radhiya Bai reached at the place of occurrence. Bhagwandas, Pappu and Nathua also reached there and witnessed the incident. On being threatened by accused Jagat Singh and Mahendra Singh, his mother and aunt ran away. His uncle Chottelal also witnessed the incident. Accused persons went on dealing lathi blows for about one hour. They dragged Nandlal upto the Beda of Ganua and thereafter ran away. Accused persons Jagat Singh, and Mahendra Singh threatened all persons present there that if they will lodge any report, they will be done to death. He has also stated that some how Biniya Bai and Radhiya Bai reached police station Baldevgarh in the evening and reported the matter. In the evening, police came to the village, where he lodged report. Ex.P.1. He has also stated that he identified accused Badday alias Mukundi during the identification parade vide memorandum Ex.P.2 as one of the assailants of the deceased.

Chottelal PW.5 who is the brother of deceased has also stated that on hearing an alarm he reached at the place of occurrence and saw accused persons dealing lathi blows on Nandlal. Ganesh, Natthu and Bhagwandas were also present there. Subsequently Biniya Bai and Radhiya Bai also reached there. On account of threat extended by the accused persons, he hid himself and came out only when the police reached there. This witness has also stated that accused Karan Singh/Mahendra Singh and Jagat Singh were on inimical terms with Nandlal.

Biniya Bai PW. 16 who is the widow of the deceased has stated that on hearing the cry of Nandlal she went to his shop along with Radhiya Bai. She witnessed the accused persons dealing lathi blows on the deceased. Accused Jagat gave her a threat, therefore, she ran away from the place of occurrence. At about 12 O''clock with the help of Radhiya and Bhagunti Bai she brought Nandlal at his house and went to police station. She reported the matter to the police. She has also stated that Mukundi and Rao Raja were also amongst the persons who assaulted the deceased. She identified accused Mukundi in the identification parade as an assailant of deceased.

According to the prosecution Bhagwandas, Pappu and Nathua were also eye witnesses, but they have not been examined by the prosecution.

Shri S.C. Datt, learned senior counsel had submitted that there are several infirmities in the evidence of prosecution witnesses. According to him, the main infirmity in the prosecution case is that the first version given by Biniya Bai at police station Baldevgarh recorded as Rojnamcha Sanha No. 193, at 4.45 PM. is that Karan Singh, Mahendra Singh, and three outsiders have assaulted her husband Nandlal and they are not allowing her husband to come to the police station to lodge the report. Thus, initially the name of only two persons namely, Karan Singh and Mahendra Singh were reported but subsequently many more names were added in Dehati Nalisi, Ex. P. 1 lodged by Ganesh Prasad.

It is doubtful that Ganesh Prasad was present at the time of incident. Radhiya Bai PW.1 has admitted that after the incident she asked her husband Chottelal to go to Tikamgarh and bring Ganesh. Chottelal and Ganesh reached the village at about 5.00 P.M. thereafter she informed Ganesh about the incident, by that time police also reached the village. She has further stated that Nandlal was brought home from Beda with the help of Bhuganti and Biniya Bai because no male member was present at that time. PW.16 Biniya Bai has also admitted that when she brought Nandlal from Beda no male member was present in the house. Above all, the names of Ganesh and Chottelal do not find place in report Ex.P-14.

Another infirmity in the prosecution case is that PW.1 Radhiya Bai and PW.16 Biniya Bai are interested witnesses. They are near relatives of the deceased being his wife and sister-in-law. It is not the rule of law that the evidence of interested witnesses is not entitled to any weight. What is required is that their version should be scrutinised with care. It will not be safe to accept interested testimony unless there is material corroboration found in other evidence adduced by the prosecution. It is more so when the prosecution has examined only interested witness and has conveniently withheld independent eye witnesses.

Admittedly, there was some enmity between the parties. PW.5 Chottelal has admitted that Nandlal had an old enmity with accused persons. PW.2 Ganesh Prasad has also stated that Nandlal was on inimical terms with the accused persons. He has further stated that he along with Chhotelal and Bhagwan Das is facing trial for the offence of attempt to commit murder of acquitted accused Jagat Singh. Admittedly, there was enmity between the accused persons and the deceased and the family members of the deceased had some score to settle against the accused. Therefore, it was a bounden duty of the prosecution to examine the independent witnesses. Non examination of Bhagwandas, Nathhu and Pappu and examination of only those witnesses who are inimically disposed towards the accused throws a great doubt on the prosecution case against the accused. We reiterate that interested evidence is not necessarily unreliable evidence. Mere partisanship is not a valid ground for discarding and rejecting the sworn testimony nor it can be laid down as a universal rule that testimony of interested witnesses can never form the basis of conviction. All that is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution.

The conduct of Radhiya Bai and Biniya Bai is such that their testimony does not inspire confidence. If they would have been the eye witness of the incident, their natural conduct would have been to somehow save Nandlal. If they had an apprehension that they may also be assaulted then their conduct would have been to tell other villagers about the incident and seek their help. It is difficult to believe that only because accused persons gave threat, they did not tell neighbours or villagers regarding the incident and did not make any attempt to bring Nandlal from Beda till 12 O''clock.

This conduct of Radhiya Bai and Biniya Bai suggests that some unknown person/persons assaulted Nandlal and threw him in the Beda and in the after noon when Ganesh and Chhotelal were not at home Radhiya Bai and Biniya Bai who learnt about the fact that Nandlal is lying in Beda, reached there and brought him and thereafter went to police station Baldevgarh to lodge the report. They were not sure as to who caused the injuries on Nandlal. They named the appellants who had inimical terms with Nandlal and few other persons in the Rojnamcha Sanha report so that there may remain scope for adding new names subsequently. Original Rojnamcha also reveals that word "Vagaira" was inserted by way of manipulation. It is admitted that the house of Bhaiyalal, Thalua and Guncha are situate near the place of occurrence. They could have been the best person to see the incident and narrate about the same but they were not examined by the prosecution.

PW.1 Radhiya Bai has admitted that she is not sure as to which of the accused persons had participated in the incident. She is taking the names only on the basis of surmises. She has also admitted that they are on inimical terms with accused Meharban Singh and Mahendra Singh. There is significant improvement in the evidence of Radhiya Bai recorded during trial and her statement recorded u/s 161, Criminal Procedure Code vide Ex.D.1. Her attention was invited towards the marked portion but she could not give any satisfactory explanation.

The evidence of Radhiya Bai and Biniya Bai was disbelieved by the trial judge so far as the acquitted accused persons were concerned. It is true that the principle ''falsus in uno, falsus in omnibus'' is not applicable in India but once the evidence of a witness is disbelieved in part such witness cannot be termed as wholly truthful witness. It is not safe to rely on the evidence of such witness without material corroboration. There is one more important circumstance which makes the evidence of these two witnesses completely doubtful. Both these witnesses had stated that the deceased was dragged from the place of incident to Beda of Ganua but Dr. Santoshi who examined the deceased and Dr. R.K. Sharma who conducted the post mortem did not find any mark of dragging on the body of deceased Nandlal.

One more infirmity in the prosecution case is that the first information report is highly belated. The importance of lodging first information report promptly cannot be minimised. Object of section 154, Criminal Procedure Code is to obtain early information of alleged criminal activity to record the circumstances before there is time for embelishment. Delay of more than 8 hours in lodging the report goes a long way to doubt the veracity of the prosecution case. The manner in which the first information report was lodged appears to be suspicious. Most of the eye witnesses do not disclose about overt act committed by the accused persons. This further shows that at a later stage an attempt was made to rope in innocent persons.

From the above discussion it is clear that Chhotelal and Ganesh were not present at the time of occurrence. Chhotelal who is a constable was called from Tikamgarh and when he returned from there he was informed about the incident. Chhotelal PW.5 was also not present in the house when Radhiya Bai and Biniya Bai had gone to bring Nandlal from the Beda, otherwise he would have also gone with these women. The evidence of Biniya Bai and Radhiya Bai appears to be suspicious. It appears that the incident was not seen by them. All these aspects of the case, did not receive due attention of the trial Court. We are therefore, of the view that on the set of evidence available, appellants could not have been held guilty for the offence charged.

In the result, the appeal is allowed. The conviction and sentence of the appellants are set aside and they are acquitted of the charges under sections 302/149 and 147, Indian Penal Code. They are on bail. Their bail bonds and surety bonds are discharged.