Munna Alias Kushalpal Singh vs State Of Madhya Pradesh

This criminal appeal has been filed by appellant Munna alias Kushalpal Singh Son of Surendra Singh Kushwah against judgment dated 29.07.2010

passed in Sessions Case No.219/2003 instituted on 12.12.2005 originating out of committal of Criminal Case No.88/03 by the Court of Judicial

Magistrate First Class to the Court of First Additional Judge to the Court of First Additional Sessions Judge, Bhind, whereby the appellant has been

convicted under Section 302 of the Indian Penal Code (for short IPC) and sentenced to rigorous life imprisonment, but has been acquitted under

Section 302/34 of IPC.

The appellant was charged under Section 302 and Section 302/34 of IPC that he committed murder of Indraveer alias Indrajeet alongwith co-

accused Narendra Singh and Kuldeep Singh and Gyanendra.  Narendra Singh and Kuldeep Singh were acquitted on 28.12.2004, at that point of

time, Munna and co-accused Gyanendra were absconding. Later on, on 31.10.2005 Munna was arrested and on 12.12.2005 supplementary charge-

sheet was filed against Munna, but till then co-accused Gyanendra was absconding, who was arrested on 14.07.2008 and in whose case, the charges

have been framed on 05.07.2010.

As per the prosecution story, deceased Indraveer alongwith his wife Munni (PW3), brother Ramveer (PW2) had visited Lord Shiva Temple

situated at a distance of one kilometer from Village Mehdava, Indraveer was walking ahead of Ramveer and Munni who were about 2-3 fields behind

when Munna, Gyanendra, Narendra and Kuldeep surrounded Indraveer and attacked him with knife. Munna had attacked Indraveer with a knife on

his head. Indraveer ran for his life, but had fallen down and then he was caught hold by the accused persons, who caused multiple stab wounds on the

body of Indraveer causing his death.

Prosecution witnesses Ramveer (PW2) and Munni (PW3) because of fear did not intervene and taking a long route reached village when they met

Shailendra (PW1) and asked him to give intimation at their home. Shailendra (PW1) gave information to PW4 Seema, who visited the Police Station

situated at a distance of 6 kilometers on feet and gave intimation about the incident, on the basis of which, entry of Roznamcha Sanha Number 850

was recorded at 11.00 AM and Sub-Inspector RVS Sikarwar left Police Station at 11.10 AM and reached the scene of crime on 24.03.2003 and

recorded dehati nalishi Ex.P/9 at 11.40 AM on complaint of Ramveer and sent it to the Police Station Raun through Constable Kane Singh, on the

basis of which, Head Constable Habib Khan (PW7) had recorded FIR Ex.P/8 mentioning Crime No.33/03 under Sections 302/34 of IPC.

In presence of panch witnesses inquest panchnama was prepared by Sub-Inspector RVS Sikarwar (PW10) and thereafter body was sent for post-

mortem through Constable Hardayal. PW10 RVS Sikarwar prepared spot map, collected blood stained and simple soil so also blood stained Safi of the

deceased and a container of steel. On 27.03.2003, Narendra was arrested, on 31.10.2005 Munna was arrested and a knife was recovered on his

disclosure. The seized material was sent for chemical analysis.

In the post-mortem, which was conducted by Dr. S.K. Niranjan (PW11), he found 16 incised wounds causing damage to spleen, kidney, right and

left side of the neck resulting in cutting of the main vessels so also bleeding vessels as a result of which the deceased died. Death was reported to be

homicidal in nature.

As far as the opinion of PW11 Dr. Niranjan, who conducted the post-mortem and gave report Ex.P/11, is concerned, he categorically opined that

cause of death is syncope due to excessive hemorrhage from injuries. Time of death is within 24 hours of the post-mortem and nature of death is

homicidal.

Appellant Munna in his defence denied the charges and submitted that he has been falsely implicated.

According to the defense version, Munni (PW3) arranged marriage of appellant Munna to a girl of Village Patara, District Hameerpur and since

Munna is childless, he had sold his land to villager Prakash Master, as a result, PW3 Munni was keeping enmity with him and he has been falsely

implicated. In crossexamination PW2 Ramveer and PW3 Munni were suggested about illegitimate relationship between them, which had come to the

knowledge of deceased Indraveer, as a result he has been murdered and the appellant has been falsely implicated.

On behalf of the appellant, it is submitted that there is no mens rea to implicate the appellant. It is further submitted that spot map Ex.P/4 does not

depict any high land like teela from where eye-witnesses could have seen the incident as has been mentioned by PW3 Munni. It is further submitted

that in dehati nalishi Ex.P/9, there is a mention of causing stab wound with knife on the head of the deceased, but in the postmortem report, no stab

wound has been found on the head, therefore, the whole prosecution story needs to be discarded. In fact, following injuries have been recorded by

PW11 Dr. S.K. Singh Niranjan :-

¼1½ dVk ?kko 2x1-5x0-75 lseh- tks Nkrh ij nkfguh vksj nloha vksj X;kjoha ilyh ds e/; vkMh fLFkfr esa Fkk ?kko ds e/; [kwu tek FkkA

¼2½ dVk ?kko 3x0-5x0-75 lseh- Nkrh ij nkfguh vkjs frjNh fLFkfr esa Nkrh esa lkroha ilyh ds mij dka[k dh lh/k esaA

¼3½ dVk gqvk ?kko 2x2-5x0-75 lseh- fr;Zd fLFkfr esa Nkrh esa lkeus ^LVZue^ ¼sternum½ ds fupys Nksj ij ?kko esa [kuw tek FkkA

¼4½ dVk ?kko 3x0-5 lseh-x mnjxqgk dh xgjkbZ rd cka;s gk;iksdksafMª;e ¼Hypocondrium½ Hkkx esa Fkk vkSj bl ?kko ds Hkhrj mnj

dh ekalisf'k;ka rFkk f>Yyh ,oa Iyhgk {kfrxzLr ik;s FksA

Iyhgk esa 1-5x0-3x1-5 les h- vkdkj dk dVk ?kko Fkk rFkk mnj esa jDr Hkjk gqvk FkkA

¼5½ dVk ?kko 2les h-x0-5 lseh-xmnjxqgk rd vkSj ;g pkVs dej esa cka;h vkjs Fkh rFkk ?kko ds Hkhrj ekalisf'k;ka vkSj f>Yyh {kfrxzLr

Fkha vkSj cka;s xqnkZ esa Hkh 1-5les h-x0-5lseh-x1les h- dk dVk ?kko ekStwn Fkk vkSj mnj esa [kwu Hkjk Fkk vkSj ?kko vkM+h fLFkfr esa FkkA

¼6½ dVk ?kko 2x1x0-5 les h- tks Nkrh esa cka;s rjQ ckgj dh vksj dk[a k dh lh/k esa vkBoha ilyhds Lrj ij FkkA

¼7½ dVk ?kko 1-5x0-5x1 les h- vkdkj dk cka;h dksguh ds Hkhrjh Hkkx dh vkjs fr;Zd fLFkfr esa ftl ij jDr tek gqvk FkkA

¼8½ dVk ?kko 2-5x1x1 lseh- xnZu ds lkeus nkafguh vkjs glyh ¼Supra clavicular½ ds mij rFkk ?kko ij [kuw tek Fkk vkSj bl ?kko okys fgLls

esa Hkhrj ^dSjksfVM^ ¼Carotid½ jDr okfgdk dVh gqbZ Fkh] Hkhrj [kuw tek gqvk FkkA ?kko vkM+h fLFkfr esa FkkA

¼9½ dVk ?kko 2-5lseh-x1lseh-xVsªd Mhi ¼track deep½ vFkkZr~ mij ls uhps dh fn'kk esa xnZu ds lkeus glyh esa Bhd mij ekStnw Fkk vkSj

'okl uyh Hkh dVh gqbZ Fkh vkSj ?kko ds Hkhrj o 'okal uyh ij jDr tek Fkk ,oa ?kko fr;Zd fLFkfr esa FkkA

¼10½ dVk ?kko 2-5les h-x1les h-xVsªd Mhi ¼track deep½ tks xnZu esa lkeus okys LFkku ij ekStnw Fkk vkSj ?kko ds Hkhrj ds fgLls esa

dBa uyh vkSj 'okal uyh ¼Laryax & trachea½ dVh gqbZ Fkh vkSj ?kko ds Hkhrj [kwu tek gqvk FkkA

¼11½ dVk gqvk ?kko 2-5x1les h-x vfLFkrg rd xnZu ds ck;h vkjs rFkk djs ksfVM ¼Carotid½ jDr okfgdk xnZu ds cka;s fgLls okyh {kfrxzLr

Fkh ds Hkhrj [kuw tek FkkA

¼12½ dVk gqvk ?kko ftldk vkdkj 2-5 x 1 x 1 lseh- dk gksdj cka;h Hkqtk ds chp okys fgLls esa fLFkr Fkk] esa tek gqvk [kwu mifLFkr FkkA

¼13½ dVk gqvk ?kko ftldk vkdkj 2 x 1 x 1 les h- dk gksdj cka;h Hkqtk ds mijh Hkkx esa fLFkr FkkA ?kko esa tek gqvk [kuw mifLFkr FkkA

¼14½ dVk gqvk ?kko ftldk vkdkj 2-5 x 1 x 1 lseh- dk gksdj cka;h tka?k ij frjNh fn'kk esa gksdj Fkk A ?kko ds vna j tek gqvk [kwu mifLFkr

FkkA

¼15½ dVk gqvk ?kko ftldk vkdkj 2 x 1 x 1 les h- dk gksdj nkafgus da/ks ij mij Fkk ?kko ds vanj tek gqvk [kwu mifLFkr FkkA ¼16½ dVk

gqvk ?kko ftldk vkdkj 2-5 x 1 x 0-5 lseh- dk gksdj xnZu ds fiNys fgLls ij vkWDlhfiVy ¼Occipital region½ Hkkx esa fLFkr FkkA

It is also submitted that PW2 Ramveer had categorically deposed in para 11 that all the four accused persons were carrying Katta. Accused

Munna was carrying a knife alongwith Katta and and this he had informed while giving his case diary statement Ex.D/8. He submits that there is no

mention of Katta in the case diary statement Ex.D/8. There is no mention of the fact that Munna was carrying knife besides Katta. On the contrary,

case diary statement Ex.D/8 clearly makes a mention of the deceased being hit with knives. In the case diary statement, there is mention of causing

injury on the head, which has not been corroborated with medical evidence. Similarly, there is contradiction in the evidence of Ramveer Singh (PW2)

and Munni Bai (PW3) inasmuch as Ramveer Singh has said that as soon as the accused had run away, he and his sister-in-law had reached close to

the dead body. It is submitted that PW2 Ramveer said that they had to sit close to the dead body for about 1 and 1-1/2 hours and then the villagers had

come at the place of scene of crime and he had not gone to the Village. He further deposed that two Police personnel in civil uniform visited the scene

of crime and at that time, villagers Garib Singh, Khullan Singh and others were present at the scene of crime and after 15-20 minutes, other Police

personnel in a truck had arrived. He has deposed that when they were sitting close to the dead body, Shailendra came from the village side and he

was asked to give information at house of deceased regarding such incident. He has also mentioned that Seema (PW4) had also visited the scene of

crime.

On the other hand, PW3 Munni another eye-witness has deposed that Shailendra (PW1) was harvesting his gram crops and she had sent a

message to her daughter Seema through Shailendra that her father has been murdered. Thus, there is a contradiction in the version of PW2 Ramveer

and PW3 Munni. Similarly, it is submitted that in para 3 of cross-examination, she has admitted the place of occurrence of murder and the accused

persons were seen when they had gathered on teela and not from the base level. She has even corroborated the statement of Ramveer that two civil

dressed Policemen had come at the scene of crime and the Police personnel in vehicle had arrived after their departure.

Learned counsel for the appellant has also submitted that no statement was recorded of PW4 Seema by the Police and there are no independent

witnesses of the seizure. She has drawn attention to the statement of PW10 RVS Sikarwar SubInspector that he had taken statements of Ramveer

Singh,

Kalu alias Diwakar, Munni and Seema, but there is no statement of Seema recorded under Section 161, Cr.P.C Similarly, PW2 Ramveer has

described the size of the knife to be 1 and 1-1/2 feet long, whereas the seizure memo Ex.P/16, vide which the knife has been recovered from Munna,

does not give details of the size of the knife, i.e., no description about length and width of blade of the knife has been given. It is also submitted that

such knife was never sent to PW11 Dr. S.K. Singh Niranjan during investigation and no opinion was sought as to whether the injuries, which were

found on the body of the deceased, could have been caused by such knife as was recovered from Munna or not.

She has placed reliance on the judgment of the Hon’ble Supreme Court in the case of Sarman & Others vs. State of MP as reported in AIR

1993 SC 400, wherein the ratio of the law is that if the victim suffers multiple injuries and no witness comes forward to say as to which of the accused

has caused which injury, the accused cannot be convicted under Section 302/149 of IPC.

On the other hand, the learned counsel for the State has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Rana Pratap

& Others v. State of Haryana as reported in AIR 1983 SC 680 to impress upon this Court that the evidence of witnesses cannot be discarded on the

ground that they did not react in a particular manner. It has been held that every person who witnesses a murder reacts in his own way. Some are

stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away

to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counter-attacking

the assailants. Every one reacts in his own special way. There is no set rule of natural reaction. To discard the evidence of witnesses on the ground

that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way.

Reliance has also been placed on behalf of the State on the judgment of the Hon'ble Supreme Court in the case of State of Punjab v. Wassan

Singh & Others as reported in AIR 1981 SC 697, wherein the ratio is that mere fact that the witnesses had succeeded in escaping unhurt, or that there

are discrepancies in the statements of the witnesses is no ground for holding that they were not eye-witnesses. It has been held that where the

witnesses were examined at the trial 17 months after the incident, such discrepancies in regard to collateral or subsidiary facts or matters of detail

occur even in the statements of truthful witnesses, particularly when they are examined to depose to events which happened long before their

examination. It has been further held that relatives or interested witnesses cannot be rejected merely because they are relatives or interested

witnesses.

Reliance has been placed on behalf of the State on the judgment of the Hon'ble Supreme Court in the case of Angad v. State of Maharashtra as

reported in AIR 1981 SC 1227, wherein the ratio is that the evidence of eye-witnesses cannot be rejected only on the ground that they did not

intervene to save the deceased.

In view of the rival contentions and the evidence, which has come on record, the judgment of the Sessions Court is to be appreciated.

From the evidence of PW11 Dr. S.K. Niranjan that there were 16 incised wounds on the body of deceased Indraveer when he was subjected to

post-mortem at 3.30 PM on 24.03.2003, it is evident that the death was homicidal.

Learned Sessions Judge has distinguished the plea of the defense/appellant that when the trial Court in the case of Narendra Singh and Kuldeep

Singh has not considered the evidence of the eye-witnesses reliable, then such evidence cannot be relied to convict the present appellant.

Shailendra (P.W.1), to whom matter was reported by Ramveer (P.W.2)/Munni Devi (P.W.3) for onward transmission of information to Seema

(P.W.4), who in turn had given information at the police station are most important witnesses to complete the chain of events.

Shailendra (P.W.1) in his deposition has categorically mentioned that he does not know when Indraveer was killed. He further deposed that he had

no information about murder of Indraveer. He further denied that Indraveer's wife had given him any intimation. He further deposed that police has

not taken his statement. He was declared hostile. He denied meeting Munni Devi. He denied suggestion that Munni Devi had informed him that Kalu's

father was murdered by Munna Singh and Gyanendra. He further denied that he had given any information about such murder to Seema at the

residence of Kalu. He further denied that he is giving incorrect evidence to save the accused persons. Prosecution has not taken pains to confront this

witness with his earlier evidence which was recorded earlier which resulted in acquittal of Kuldeep and Narendra from which Cri.Appeal No.600/06

originated.

Ramveer (P.W.2) has deposed that accused persons were armed with both knife and katta, whereas in his case diary statement (Ex.D/8) he has

only mentioned that his brother was attacked with knife and did not say anything about katta. He did not mention availability of katta as well as knife in

the hands of the accused persons. In the FIR (Ex.P/8), there is only mention of knife and there is no mention of Katta. Ramveer (P.W.2) has also

deposed that at the time of incident, he was close to the dead body and he had sent intimation through Shailendra, who had given information about

Indraveer. He further deposed that Indraveer's daughter Seema had come to the spot of crime and thereafter Seema had gone to the Police Station.

He also deposed that two plain clothes policemen had come but they did not inform anything about the incident and returned back. There is material

contradiction in this statement, inasmuch as if Seema had come to the scene of crime, then Seema should have corroborated this statement that she

had reached to the scene of crime and therefrom she had gone to the Police Station. It is also strange that when two policemen had come, then why

they had not taken note (Dehati Nalishi) about the incident. 24. There is also contradiction in the statement of Ramveer (P.W.2) who has deposed that

there were no crops standing and they were all harvested. Even the dimensions of the knife he says was disclosed to the police while giving statement

(Ex.D/8), whereas there is no mention of any dimension of knife in the statement (Ex.D/8).

There is contradiction in the statements of Ramveer (P.W.2) and Munni Devi, inasmuch as Munni Devi has deposed that Shailendra was

harvesting gram crop. This is contrary to the statement given by Ramveer (P.W.2), who says that no crops were standing and fields were empty. She

has mentioned that she had given intimation through Shailendra but as per Ramveer (P.W.2), Seema had herself visited the scene of crime which she

has not corroborated.

Similarly, Munni Devi (P.W.3) has mentioned in para 3 of her cross examination that accused persons were seen on climbing the Teelas whereas

in the spot map there are no Teelas shown. She had also admitted that before arrival of the police, villagers had arrived at the scene of crime but none

of the villagers were examined as independent witnesses.

Seema (P.W.4) deposed that Shailendra had informed her about murder of her father. Shailendra had gone to give intimation on the instruction of

her mother, then she had visited Roun Police Station. She has not corroborated the statement of Ramveer (P.W.2) that she had gone to the scene

of crime first and then had gone to the police station. She admitted that she is married for about 10 years and stays in her matrimonial home. She

further admitted that she had come to her parental home in the month of “Savan†(which translates to July-August of English Calendar) whereas

incident had taken place in the month of “Chaitra†(which translate to March-April of English Calendar). It is not believable that a married lady

will stay in her parents' house continuously for a period of 7-8 months, therefore, testimony of Seema also becomes doubtful.

Sukhendra Singh (P.W.5) is also hostile witness. He in fact is the witness of seizure memo (Ex.P/16).

Habib Khan (P.W.7), a retired Head Constable, had deposed that he had received Dehati Nalishi at 11.30 and immediately he had written an FIR

within ten minutes. Dehati Nalishi (Ex.P/9) has been recorded at 11.40, whereas FIR (Ex.P/8) has been recorded at 1.00 p.m. Roznamcha

(Ex.P/13) reveals that intimation was received at 11.00 a.m. R.B.S. Sikarwar (P.W.10) had made entry in the Roznamcha and according to P.W.10,

he has admitted that he had taken 15-20 minutes to reach the spot from the police station. Time of departure is mentioned as 11.10 a.m., therefore, he

had reached the spot at 11.30 a.m. and thereafter he had only recorded Dehati Nalishi (Ex.P/9). Therefore, when he had taken 15-20 minutes' time to

reach the scene of crime from police station, then Dehati Nalishi was not recorded on the spot, then it could not have been received in the police

station at 11.30 a.m. as has been mentioned by Habib Khan (P.W.7) and if Dehati Nalishi was received at 11.30, then no justification has been given

for recording of FIR at 1.00 p.m.

Murari Singh (P.W.8), a witness of arrest memo, is also hostile witness.

Subhash Sharma (P.W.9) has deposed that permanent warrantee Munna Singh was roaming around depicting himself to be Thakur Baba and

therefore he was arrested. It is further mentioned that arrest panchnama (Ex.P/14) was prepared in presence of Sukhendra Singh and memorandum

under Section 27 was prepared as Ex.P/15, but Sukhendra Singh (P.W.5) has not supported the preparation of arrest memo Ex.P/14. 32. Sub

Inspector R.B.S.Sikarwar (P.W.10) has admitted in para 7 of his deposition that when he had reached the spot, 8-10 villagers were standing there and

he had made met Ramveer (P.W.2) at some distance prior to the place of incident i.e. about two furlong prior to the place of incident. This is contrary

to the statement of Ramveer (P.W.2) that he was sitting close to the dead body. In para 8, he has admitted that when he had received information

from Seema at police station, he had not recorded Merg as he wanted to investigate whether the deceased died or was alive. This is contrary to the

entry in Roznamcha (P.W.13), wherein it is categorically mentioned that Seema, daughter of Indraveer, had informed him that her father Indraveer

was killed by Munna and Gyanendra by stabbing him. When, there was specific intimation about death, then reason not to record Merg intimation does

not appear to be germane and this aspect and other contradictions as narrated above have not been appreciated by the learned Sessions Judge while

recording conviction. No reason has been given as to why case diary statements of Seema were not recorded.

Learned Sessions court has recorded conviction on the basis of circumstantial evidence and has overlooked the material contradictions in the

statement of Ramveer (P.W.2), Munni Devi (P.W.3) and Seema (P.W.4). No mens rea has been attributed as to why Munna Singh and others

committed murder of Indraveer. Learned sessions court has also overlooked the fact that if the intention was to kill, then when according to PW2

Ramveer, if Munna was armed with Katta also then it would have been much more convenient to use Katta rather than to cause multiple stab injuries.

In fact, the knife as was recovered from the appellant Munna vide Ex.P/16 was never shown to Dr.S.K.Niranjan (P.W.11) as to whether such

knife could have caused injuries as were found on the body of the deceased. Non-examination of the weapon recovered from the place of incident by

chemical analyzer also made the case doubtful.Â

Conduct of the eye witnesses that they fled away from the spot creates doubt on the testimony of the eye witnesses. Eye witnesses have

contradicted each other about visit of Seema (P.W.4) at the scene of crime, statement given by Munni Bai (P.W.3) that accused could be seen only

upon climbing of Teelas, whereas there were no Teelas on the spot. If they were the eye witnesses, then no reason has been assigned as to what

prevented Ramveer from going to the village and lodge the report instead of sitting close to the dead body till past 11.00 a.m. Statement of Ramveer

(P.W.2) that they were sitting close to the dead body is contracted by the statement of R.B.S. Sikarwar (P.W.10) that he had met Ramveer (P.W.2)

at a distance of about 2 furlong from dead body.

Prosecution has failed to prove mens rea of the accused and as has been laid down by this court in the case of Purushottam and another Vs. State

of M.P. And others as reported in 2017 (3) MPLJ (Cri.) 528, mere recovery of weapon or the preparation of memorandum of seizure under Section

27 does not mean that said weapon was used in the incident.

In fact, presence of the witnesses Ramveer (P.W.2), and Munni Devi on the spot is doubtful. Their conduct is unnatural.Wife not going to save

her husband is definitely an unnatural conduct. Her contention that accused could be seen only on climbing the Teelas and absence of Teelas on the

spot reveals that she is not an eye witness but is a planted witness. Conduct of Ramveer (P.W.2) of not reporting the matter to the police and on the

contrary admitting that he was sitting close to the dead body is also unnatural. His statement that Indraveer's daughter Seema had come to the spot

whereas denial of Seema to visit the spot are other mitigating circumstances. No explanation has been furnished by Seema as to why she was

continuing in her parental house from August to March i.e. almost eight months, though she was happily married. Her conduct also creates doubt that

instead of coming to scene of crime alongwith police after giving intimation to the police, she has admitted that she had returned back to her home.

Any child after hearing news of father's murder will become restless and in the first place would like to visit the scene of occurrence rather than going

back to home. Thus, all these facts when taken cumulatively, reveal that none of the witnesses ; Ramveer (P.W.2), Munni Devi (P.W.3) and Seema

(P.W.4) are eye witnesses or factual witnesses but they have been planted. Even conduct of Ramveer and Munni is unnatural. If Shailendra would

have met them, then they would have asked him to inform the police.

Several contradictions/ exaggerations/ embellishments /inconsistencies / improvements have been made by the so-called eye-witnesses PW2

Ramveer and PW3 Munni. No reason has been assigned for delay in lodging of the FIR inasmuch as conduct of PW2 Ramveer in not reporting the

matter to the Police himself and waiting for the Police till 11.30 creates sufficient doubt about his testimony to be present at the scene of occurrence

of the offence. When there is no material to corroborate the evidence of eye-witnesses PW2 Ramveer and PW3 Munni, which contained material

improvements, the Hon'ble Supreme Court has held in the case of Hasan Murtaza v. State of Haryana as reported in (2002) 3 SCC 1 that it would be

unsafe to base the appellant's conviction upon such evidence. It has dealt with the effect of making improvements upon the statements.

The fact of the matter is that mere suspicion cannot be the ground for conviction in the case of Assistant Collector of Central Excise, Kalicut v.

V.P. Sayed Mohammad as reported in AIR 1983 SC 168, the Hon'ble Supreme Court has held that the onus of proving the fact essential to the

establishment of the charge against an accused lies upon the prosecution and the evidence must be such as to exclude every reasonable doubt about

the guilt of the accused. An accused cannot be convicted of an offence on the basis of conjectures or suspicions. If a reasonable doubt arises in the

mind of the Court after taking into consideration the entire material before it regarding complicity of the accused, the benefit for such doubt should be

given to the accused.

Similarly, in the case of Peddi Reddy Subba Reddy v. State of Andhra Pradesh as reported in AIR 1991 SC 1356, the Hon'ble Supreme Court has

held that when the witness was closely related to the deceased (son-in-law in that case) after witnessing the occurrence, he did not go to the village

and inform anyone of the villagers, but, on the other hand, he went to his village, which is said to be at the distance of four furlongs. He states that he

informed only his mother-in-law PW3 and came up with the present version only on the next morning. The conduct of PW1 in not reporting to any of

the villagers about the occurrence was considered to be a factor creating doubt on the veracity of his evidence and appeal was allowed. In the present

case, it was the duty of the complainant to explain the delay in filing the complaint and the Investigating Officer has also failed to explain as to why he

had not examined PW4 Seema and had not taken her statement under Section 161, Cr.P.C. These lacunas coupled with inconsistencies in the

statements of the eye-witnesses are also to be appreciated.

In the case of Harbhajan Singh v. State of J & K as reported in AIR 1975 SC 1814, the Hon'ble Supreme Court considered the fact that the father

of the deceased, who was the only eye-witness, did not disclose the name of the accused to the neighbourers who came to the scene of occurrence

immediately and this only shows that the accused is not known to the witness. In the present case though PW2 Ramveer has admitted the arrival of

the villagers, but he did not disclose the names of the accused to them and such witnesses were not examined.

All these circumstances when taken into totality reveal that the conduct of PW2 Ramveer in not reporting the matter to the Police at once and

staying with the dead body though he was found by the Investigating Officer to be two furlongs away from the dead body when I.O. had reached the

site; not informing the villagers about the names of the accused persons and prosecution not examining such villagers; and witnesses of seizure of

arms turning hostile, creates reasonable doubt about the truth of presence of the eyewitnesses. Similarly, the conduct of PW4 Seema in not reaching

the spot as per PW3 Munni and as per her own version as contradicted by PW2 Ramveer that she had come to the spot before the Police had come,

leads to sufficient doubt about the correctness of the version of the prosecution witnesses to uphold the conviction.Â

Thus, the conduct of these witnesses is unnatural and not trustworthy to uphold the conviction. Thus, material omissions, contradictions and

lacunae in ocular evidence make this case to be a fit case for extending benefit of doubt in favour of the appellant and acquit him from the charges,

inasmuch as there is no sufficient circumstantial evidence to support the case of the prosecution.

Accordingly, appeal is allowed. Judgment of conviction and sentence is set aside. Appellant is in jail, he be released forthwith, if not required in any

other offence. Office to immediately send a copy of this judgment to the jail, so that the appellant can be released forthwith.