Mahesh and another vs State of Madhya Pradesh

The appellants have preferred the present appeal being aggrieved by the impugned judgment dated 13.5.2004 passed by the Addl. Sessions

Judge, Sohagpur, District Hoshangabad, in Sessions Trial No.78/2001 whereby appellants no.1 and 2 have been convicted under Section 302 of

IPC and both of them have been sentenced to undergo life imprisonment along with fine of Rs.500/-; in default of payment of fine, additional three

months RI.

In brief, the relevant facts of the case are that appellants no.1 and 2 are husband and wife and the appellants and the deceased were neighbours.

It is also admitted that prior to a year of the incident, deceased Randhir had committed rape with appellant no.2 Hasinabai and against him criminal

proceedings were pending. As per the prosecution story, a day before the incident, altercation had taken place between appellant Mahesh and

deceased Mohan and Randhir. On 9.12.2000 nearabout 3.30 PM while deceased Mohan and Randhir were returning from village Bankhedi in the

field of one Pujari appellant Mahesh armed with axe and Hasinabai armed with ''tami'' assaulted deceased Mohan and Randhir on account of the

incident of rape, taken place a year before. Appellants dealt with many blows on the person of deceased Mohan and Randhir. They fell down on

account of the injuries sustained by them. It is alleged that the incident was seen by complainant Bajarilal, PW1, father of deceased Mohan and

grandfather of deceased Randhir, while he was going towards village Bankhedi in search of the deceased, as they have not returned home since

morning. One Jitendra Kumar Paliya, PW16, informed the police telephonically about the incident on which the police party reached the spot,

which was between village Kalkui and Panjara. However, on the information of complainant Bazarilal, PW1, Dehati Nalishi was recorded vide

Ex.P/3 and Marg Intimation of deceased Mohan and Randhir were recorded vide Ex.P/1 and P/2. On the basis of Dehati Nalishi, Ex.P/3 and

Marg Intimation, Ex.P/1 and P/2, FIR was registered vide crime no.195/2000 at Police Station Bankhedi for the offence punishable under sections

302, 341 and 34 of the I.P.C. During investigation, autopsy was conducted by Dr.S.K.Chandaiya, PW19. From the spot, one pair of ladies

slipper was recovered. Appellants were arrested and at their instance weapons were recovered and blood stain clothes of appellant no.1 was also

recovered which was sent to FSL for chemical examination. On the aforesaid articles presence of human blood was found. After completion of

investigation the charge-sheet was filed before the ACJM Pipariya and the case was committed to the Court of Sessions, Hoshangabad, who

transferred the case to the court of Addl. Sessions Judge.

During trial appellants accused were charged with the offence under sections 302 of the I.P.C. They abjured the guilt and claimed to be tried. In

defence, appellants stated that they are innocent and have been falsely implicated on the ground of previous enmity. However, no evidence has

been adduced in defence.

The learned trial court after completion of the trial found the appellants guilty of the offence and convicted and sentenced them, as mentioned

hereinabove.

The finding of the learned trial court is mainly based on the testimony of Bajarilal, PW1. Considering the corroboration of the testimony of

Bajarilal, PW1, from Dehati Nalishi, Ex.P/3, and Marg Intimation, Ex.P/1 and P/2, as well as medical evidence and recovery of axe and ''tami'' at

the instance of appellants Mahesh and Hasinabai respectively and recovery of blood stained clothes and pair of ladies slippers from the spot having

blood stain and came to the conclusion that appellants committed murder of Mohan and Randhir. Accordingly, convicted and sentenced them.

Being aggrieved by the aforesaid impugned judgment of conviction and order of sentence, the appellants have filed this appeal on the ground

that the finding of the learned trial court is contrary to law. In the case only Bajarilal, PW1, has stated that he saw appellants assaulting Mohan and

Randhir with axe and tami and caused deadly injuries to them; but, his statement is prima facie not trustworthy. The prosecution itself has declared

him hostile because in earlier part of his statement he has not supported the prosecution version. Later, on permission for asking leading questions

to him, he uttered words which were put in his mouth by the Public Prosecutor. The statement of such type of witness cannot be made the basis for

conviction of a person charged with the offence punishable with capital punishment. Apart from it, the statement of so called eyewitness is also not

consistent with the medical evidence. As per the statement of Dr.S.K.Chandaiya, PW19, there was no injury on the persons of deceased Mohan

and Randhir caused by hard and blunt object, while this witness has categorically stated that Hasinabai, appellant no.2 had assaulted the deceased

with ''tami'' and caused injury to both the deceased. In such circumstances recovery of human blood stained weapons and clothes without proving

matching of blood group with the deceased, no interference can be drawn against the appellants that they have committed the alleged crime.

Recovery of pair of ladies slipper having blood stain is not the relevant circumstance as there is no evidence to prove the fact that the same slipper

were wore by the appellant no.2 at the time of incident. Therefore, findings of the trial court are not sustainable in the eyes of law. They are based

on conjectures and surmises and on the basis of aforesaid nature of the evidence, appellants/ accused persons cannot be held guilty and convicted

for the aforesaid serious charge. In the view of the facts and circumstances of the case, prayer is made to allow the appeal and set-aside the

impugned judgment of conviction and order of sentence and acquit the appellants.

On the other hand, learned Govt. Advocate appearing for the respondent / State has argued in support of the impugned judgment and stated

that the finding of conviction and sentence of the learned trial court is in accordance with law. Hence, the appeal be dismissed.

Having considered the contention advanced by learned counsel for the parties and on perusal of record, it is found that in view of the statement

of Dr.S.K.Chandaiya, PW19, learned counsel for the appellants have not challenged the finding of the trial court that the nature of death of

deceased Mohan and Randhir on 10.12.2000 were homicidal and on the person of deceased Mohan on his skull two incised wounds were found

which were ante mortem and caused by sharp and cutting object. Similarly, on the person of deceased Randhir two incised wounds, one on his

skull and the other on neck and one abrasion on left shoulder were found and the injuries were ante-mortem, caused by hard and sharp object and

post mortem reports, Ex.P/31 and P/32, were prepared, and as per the post mortem report both the persons died on account of shock and

heamorrhage caused by the aforesaid injuries on their vital parts of the body. They died on the spot. In the aforesaid circumstances, it is held that

deceased Mohan and Randhir died on account of the aforesaid injuries and the nature of their death was homicidal.

Now, the question which arises for consideration is whether the appellants/ accused persons caused the death of deceased Mohan and Randhir.

As mentioned earlier, in this case Bajarilal, PW1, is only the star witness. As per the judgment of the learned trial court, other witnesses, who,

during the investigation, claimed to be the eyewitness, have been turned hostile. Bajarilal, PW1, in earlier part of his statement denied the fact that

he saw the incident and lodged the report to police; but, on declaring him hostile by the prosecution and asking leading question after permission

from the Court, the witnesses has narrated the story as per the prosecution version and stated that when he went towards village Bankhedi in

search of Mohan and Randhir, as there was delay in coming back to home, on the way he saw that appellants accused persons were abusing

Mohan and Randhir and appellant Mahesh assaulted deceased with axe and at the same time appellant Hasina also assaulted deceased Randhir

with tami due to which Randhir fell down in the field. After assaulting Randhir, they assaulted Mohan with axe and tami on his skull and on hearing

his hue and cry other persons working in the field gathered at the place of incident and on seeing them the appellants fled away. He further stated

that deceased Mohan and Randhir died at the spot and on the information of Jitendra Kumar, PW16, the police came to the spot. He discloses the

fact of incident to the police and the police recorded Dehati Nalishi, Ex.P/3 and Marg Intimation, Ex.P/1 and P/2. In the aforesaid circumstances

the testimony of Bajarilal, PW1, requires minute scrutiny and independent corroboration from other evidence. His testimony cannot be thrown out

merely on the ground that he is relative of the deceased and has been declared hostile by the prosecution. About the consideration of testimony of

the witnesses of such nature law is very clear.

The Apex Court in the case of Lala Ram Vs. State of Rajasthan (2007) 10 SCC 225 has observed that there is no proposition in law that

relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that the

witnesses had reason to shield actual culprit and falsely implicate the accused. No evidence has been led in this regard. Hence this contention has

no meaning as the facts and circumstances of the present case are also similar. On behalf of the appellant/accused also, no evidence has been led in

support of the plea of partiality by the witnesses.

About the hostile witness, Hon''ble Apex Court in the case of Karuppanna Thevar and others Vs. The State of Tamil Nadu, (1976)1 SCC 31,

has stated thus :-

19........A hostile witness may not be rejected outright but the court has at least to be aware that, prima facie, a witness who makes different

statements at different times has no regard for truth. The court should therefore be slow to act on the testimony of such a witness and, normally, it

should look for corroboration to his evidence"".

Considering the testimony of the aforesaid witness in the light of the aforesaid legal preposition, it is found that the testimony of Bajarilal, PW1,

during the cross examination has remained unimpeachable and also gets corroboration from Dehati Nalishi, Ex.P/3 and Marg Intimation, Exs.P/1

and P/2, which have been proved by Shri Jitendra Singh Incharge Police Station Bankhedi, PW15, and also corroborated partially by the

statement of Dr.S.K.Chandaiya, PW19 and the fact of recovery of blood stained axe and clothes recovered at the instance of appellants accused

Mahesh vide seizure memo, Ex.P/18 and P/19 and FSL report confirming the presence of human blood on the aforesaid article vide Ex.P/34.

Therefore, the statement of Bajarilal, PW1, can be relied to the extent they gets corroboration from other independent evidence and material.

In view of the aforesaid discussion, it is held that the testimony of Bajarilal, PW1, with regard to appellant no.1 Mahesh is reliable as it gets

corroboration from other material, as stated above, but the testimony of this witness with regard to appellant no.2 Hasinabai cannot be relied as he

has stated that Hasinabai assaulted the deceased with tami and caused injuries to deceased Mohan and Randhir; but, Dr.S.K.Chandaiya, PW19,

has categorically stated that all the injuries found on the person of the deceased were caused by sharp and cutting weapons. In the circumstances,

statement of Bajarilal, PW1, with regard to appellant no.2 Hasinabai that she assaulted with tami and caused injuries to deceased is not reliable.

That part of the evidence of Bajarilal is inconsistent with the medical evidence on record.

Looking to the tentative nature of the testimony of witness Bajarilal, PW1, it is not safe to rely his statement with regard to involvement of

Hasinabai, appellant no.2 in the incident. Therefore, appellant no.2 Hasinabai is entitled to get the benefit of doubt.

In view of the aforesaid discussions, we are of the view that the prosecution has failed to prove the charge against appellant no.2 Hasinabai

beyond reasonable doubt and the finding of the learned trial court with regard to her conviction is not sustainable in the eyes of law. So far as

appellant no.1 is concerned, finding of the learned trial court does not require any interference as the prosecution has succeeded to prove the

charge against appellant no.1 Mahesh beyond reasonable doubt.

In view of the aforesaid discussion, the appeal filed on behalf of appellant no.1 Mahesh is dismissed and his conviction under section 302

I.P.C. and sentence of life imprisonment is affirmed. It is reported by learned G.A. on the basis of report of jail authority that appellant no.1

Mahesh has already been released on 15.8.2015 after completing his whole term of sentence and getting the benefit of remission.

So far as appellant no.2 Hasinabai is concerned, the appeal of appellant no.2 Hasinabai is allowed and her conviction and sentence under

section 302 I.P.C. is set aside. She is on bail. Her bail bonds stands discharged. In the circumstances, this appeal is partly allowed and disposed

of. A copy of this order be sent to the learned court below for information and compliance.