Raghuvir Singh and Others vs State of M.P.

S.L. Jain, J.

Invoking appellate jurisdiction of this court u/s 374(2) of the Code of Criminal Procedure, the appellants who are fourteen in number have filed this appeal calling in question the legality, validity, correctness and propriety of the judgment and findings recorded by learned Sessions Judge, Damoh in Sessions Trial No. 108/90, whereby, appellants No. 1 to 4 have been convicted for offences punishable under Sections 302/149, 148, 427/149 and 323/149 of the IPC and sentenced to imprisonment for life, for offence punishable u/s 302 read with Section 149 of the IPC and sentenced to R.I. for six months each for other three offences. Appellants No. 5 to 14 have been held guilty of the offences punishable u/s 427/149 and Section 323/149 of the IPC and sentenced to R.I. for six months on each count.

The prosecution case in brief, shorn of unnecessary and gratuitous details are as follows :

The complainant party and accused party are the residents of same village. Before about a fortnight of the incident, some quarrel took place between them regarding the land. A report of this incident was lodged by Vishram Singh at police station. Earlier also, the parties were in inimical terms. On the date of incident, i.e. on 17-8-90 at about 8 AM, Vishram Singh was going towards a hut to milk his cow. He was intercepted by Tantoo Singh (since deceased) and appellants Raghuveer Singh, Teji Singh, Bahadur Singh and Kalyan Singh. Teji Singh were armed with ballam, Raghuveer Singh with chain, Bahadur with Bichhiya and others were armed with lathis. Due to the assault, Vishram Singh fell on the ground. After assaulting deceased Vishram Singh, the aforesaid five persons dragged Vishram Singh towards their house. At that moment, some other appellants namely Laxman Singh, Rajjan, Tarwar Singh, Param Singh, Lakhan, Gulab Singh, Ralli Singh, Mulayam Singh and Komal Singh and two other accused who died during trial, reached there. Leaving Vishram Singh, the appellants and two more persons who died during the trial went to the house of Roop Singh, the brother of deceased Vishram Singh and some of them climbed over the roof of the house and entered into the house. The tiles of the house were broken. They brought Roop Singh out of the house and assaulted him. The women folk of the family namely Kera Bai (the wife of deceased Vishram Singh), Kapuri, Badibahu and Gulab Bai who came out of the house to the rescue of Roop Singh were also assaulted. Vishram Singh died at the spot.

FIR of the incident Ex. P-1 was lodged by Bhav Singh, the son of deceased Vishram Singh at police station Nohta on the date of incident itself at about 9 AM. The dead body of Vishram Singh was sent for post mortem examination after preparing inquest panchnama.

The post mortem examination on the dead body of Vishram Singh was conducted by Dr. V.K. Saxena (PW-8) who found the following injuries on the body of deceased Vishram Singh:

i. Scratch on the middle part of the left leg, oval shape, 3 cms x 2 cms.,

ii. Contusion on the middle part of the left leg surrounding injury No. 1, size 7 cms x 51/2 cms.,

iii. Contusion on left forearm 8 cms x 6 cms,

iv. Swelling on the left arm,

v. Contusion on the chest i2 cms x 3 cms.,

vi. Contusion over left parietal region 7 cms x 6 cms.

On internal examination, the doctor found fracture of parietal bone, radius bone and left tibia. Dr. Saxena opined that the deceased died due to the injury caused to the brain. In the opinion of the doctor, all the injuries found on the dead body of Vishram Singh were caused by hard and blunt object. He found that the injuries were anti mortem in nature. Ex. P-13 is the report of Dr. Saxena.

Injured Roop Singh, Kera Bai and Mulla Bai were also sent for medical examination. They were also examined by Dr. Saxena who found the injuries on their person as described in the reports Ex. P-14, P-15 and P-16 respectively.

Kera Bai was admitted in the hospital. She succumbed to the injuries on 27-8-90. Dr. K.K. Sachdeva (PW-8) performed post mortem examination on the body of deceased Kera Bai. His report is Ex. P-18. He found seven injuries on the body of deceased Kera Bai which according to him were caused by hard and blunt object. He found that the cause of death of Kera Bai was hemorrhage. During the admission in District Hospital, Damoh, dying declaration of deceased Kera Bai was recorded as per Ex. P-19.

On the date of incident itself blood stained earth, plain earth, broken pieces of tiles and a rope were recovered from the spot as per Ex. P-21. Accused persons were arrested. The appellants Teji Singh, Raghuveer Singh and Kalyan Singh were interrogated. At the instance of Teji Singh, Raghuveer Singh and Kalyan Singh, ballam, lathi and chain respectively were recovered. At the instance of Tantoo Singh an axe was recovered. The blood stained clothes of deceased Vishram Singh were recovered by the doctor. The recovered earth, weapons and clothes of Vishram Singh were sent to Director, Forensic Science Laboratory for chemical examination who found blood stains on the recovered ballam, axe and clothes as per Ex. P-29. Earth, ballam, axe and clothes were also sent to serologist and chemical examiner who opined that the clothes of deceased Vishram Singh, namely, dhoti and bandi were stained with human blood. The origin of the stains on other items could not be determined as they were disintegrated. The blood group also could not be ascertained.

After completion of the investigation, a charge sheet was filed against the appellants and two other persons, namely, Tantoo and Kodu Singh, who died during the trial Charges u/s 302 read with Section 149 of IPC for the murder of Vishram Singh and u/s 148, 323/149 and 427/149 of the IPC were framed against appellants Raghuveer Singh, Teji Singh, Bahadur Singh and Kalyan Singh. Charges under Sections 427/149 and 323/149 of the IPC were framed against remaining appellants.

No charge for causing the death of Kera Bai was framed as the learned Sessions Judge was of the opinion that she died after many days of the incident and there was no nexus between the injuries caused to her and her death.

The appellants pleaded not guilty. According to them on the date of incident, one person of the accused party Kodu Singh was going towards his field. He was accosted by deceased Vishram Singh and a ballam blow was dealt on him. Kodu Singh in exercise of right of private defence assaulted Vishram Singh by means of a stick (lathi) When Kodu Singh tried to run away from the spot, Vishram Singh tried to follow him. Near the house of Vishram Singh, he was surrounded by Kera Bai, Roop Singh etc. Therefore, Kodu Singh who died during the trial and appellant Kalyan Singh in exercise of right of private defence caused injuries.

After concluding the trial, the learned trial Judge found the appellants guilty of the charges levelled against them and convicted and sentenced them as indicated above.

It is against this conviction and sentence that the appellants have come up in appeal.

None appeared for the appellants at the time of hearing of the appeal, therefore, with the help of Shri S.K. Rai, Public Prosecutor, we went through the record.

From the evidence of eye-witnesses, namely, Bhav Singh (PW-1), Mulayam Singh (PW-5), Arjun (PW-7), injured witnesses Roop Singh (PW-2) and Mulla Bai (PW-3) and also from the evidence of Dr. V.K. Saxena (PW-10) and Dr. K.K. Sachdeva (PW-9) it is established beyond any shadow of doubt that Vishram Singh died a homicidal death and Roop Singh, Mulla Bai and Kera Bai sustained injuries in the incident. After ten days of the incident Kera Bai succumbed to her injuries. The only question that remains to be determined is as to whether the appellants are responsible for the same ?

Bhav Singh (PW-1), Mulayam (PW-5) and Arjun (PW-7) have stated that when Vishram Singh was going to milk his cow appellants Teji Singh, Bahadur Singh, Kalyan Singh, Raghuveer Singh and Tantoo Singh reached the spot. Raghuveer Singh was armed with chain, Teji Singh with ballam, Bahadur with bichhua and others were armed with lathis. Appellant Teji dealt a blow of ballam on the head region of the deceased. Raghuveer Singh, Kalyan Singh, Bahadur Singh and Tantoo caused injuries to the deceased by means of chain, stick, bichhua and axe respectively. When Vishram Singh fell down due to the injuries, the aforesaid accused persons dragged him up to a place near their house where the other appellants also joined them. Some of them climbed the roof of Roop Singh and broke the tiles. They also entered the house of Roop Singh, caught hold of him and brought him outside the house. Kera Bai, Shanti Bai and Kapuri Bai came to the rescue of Roop Singh. They were also assaulted. The evidence of the aforesaid eye witnesses does not inspire confidence. Admittedly, the parties were in inimical terms. The main infirmity in the evidence of prosecution witnesses Bhav Singh (PW-1), Mulayam Singh (PW-5), Arjun (PW-7), Roop Singh (PW-2) and Mulla Bai (PW-3) is that they failed to explain the injuries found on the person of accused Kodu Singh who died during the trial.

Dr. B.L. Patel (DW-1) has stated that on 17-8-90, he examined accused Kodu Singh and found an incised wound on his right infracual region about 5" above the right nipple. The size of the wound was 6 cms x 1.5 cms x 2 cms. He opined that the injury was caused by sharp weapon within 12 hours of the examination. He also stated that Kodu Singh was admitted in the hospital for three days. Report of Dr. B. L. Patel is Ex. D-4.

D.K. Dixit (PW-17) who investigated the case has also admitted that Kodu Singh was sent for medical examination. He expressed his ignorance as to on what date Kodu Singh was sent for medical examination. He has also expressed his ignorance as to whether Kodu Singh was admitted in Govt. Hospital. He has also stated that the case diary does not disclose as to whether any report was lodged by Kodu Singh or not. He has also stated that the injury report of Kodu Singh is not available in the case diary. He also admitted that the said medical report was not filed along with the challan.

Thus, apparently, the investigation was one sided. No investigation was made as to how Kodu Singh sustained injuries.

From the evidence of Dr. Patel (DW-1) and other material, it is established that Kodu Singh also received incised wound on the chest during the incident.

As has been held in the celebrated case, of Lakshmi Singh and Others Vs. State of Bihar, , in a murder case, the non-explanation of the injuries sustained by the accused at or about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences :

(a) That the prosecution has suppressed the genesis and the origin of the occurrence and has, thus, not presented the true version;

(b) That the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and, therefore, their evidence is unreliable;

(c) That in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.

The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance when the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution case.

It is true that there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and credit worthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries of the accused.

In the present case an incised wound was found on the chest of one of the accused persons which cannot be said to be superficial. Accused Kodu Singh was admitted in the hospital for three days. As a principle of appreciation of evidence, it becomes obligatory for the prosecution to explain the injury found on the accused, so as to satisfy the Court as to the circumstances under which, the occurrence originated.

There is no clear explanation of the injury of Kodu Singh. The appellants have stated that Kodu Singh was assaulted by deceased Vishram Singh by means of ballam and it is only in that situation that he inflicted lathi blow. In these circumstances, it was the obligation of the prosecution to clearly establish the manner in which the incident took place. It cannot be held that the incident did not take place in the manner suggested by the appellants and in that situation, it cannot be said that appellants Raghuveer, Teji, Bahadur, Kalyan, deceased accused Tantoo and Kodu Singh inflicted the injuries on Vishram Singh with intention to cause death.

The only reasonable inference that can be drawn is that accused Kodu Singh received the injury during the course of origin which was inflicted on him by Vishram Singh or some other member of the prosecution party. This also reveals that the prosecution eye-witnesses have suppressed the genesis and origin of the incident and have not presented the true version.

There is another infirmity in the prosecution case. The prosecution witnesses have stated that deceased Vishram Singh was dragged from the place of first incident to a place near the house of the appellants which is a considerable distance, but no injury or sign of dragging was found on the body of deceased.

The one sided and tainted investigation also has made the task of the Court to sift the evidence more difficult indeed. It is a case wherein having learnt that accused Kodu Singh also sustained serious injury in the incident, no attempt was made by the investigating agency to investigate as to how he sustained injury.

There is yet another infirmity in the evidence led by the prosecution. As per the version of the eye-witnesses at the time of incident Teji Singh was armed with ballam, Bahadur was armed with bichhua and Tantoo was armed with axe. Teji Singh dealt a blow of ballam on the left side of the head region of Vishram, Bahadur Singh dealt a blow of bichhua and Tantoo dealt a blow of axe on him. Absence of any incised wound or stab wound on the body of Vishram Singh completely falsifies the evidence of the eye-witnesses. The medical evidence shows that the injuries on the body of the deceased were caused by hard and blunt object. This is also a very important suspicious circumstance which negative the truth of the prosecution witnesses.

The ocular evidence is totally inconsistent with medical evidence with respect to the assault. The evidence of eye-witnesses is in direct conflict with the medical evidence. While the eye-witnesses categorically stated that the appellants assaulted the deceased with ballam, bichhua and axe also the doctor who held the autopsy of the deceased Vishram Singh has clearly stated that all the injuries found on his body were caused only by the hard and blunt object. No question was put by the prosecution to the doctor whether any or all of the injuries on the deceased could be caused in the manner alleged by the witnesses i.e. by ballam, axe and bichhua.

In view of this glaring inconsistency between the oral and medical evidence, it will be extremely unsafe and hazardous to maintain the conviction of the appellants. From the medical evidence it is difficult to reach to a firm conclusion that the defence version is altogether false. The conviction of the appellants cannot be maintained. When the evidence of the prosecution witnesses in respect of the assault to Vishram Singh is false, there is no guarantee that the other assault deposed by the eye-witnesses was also not false. The evidence of the prosecution regarding mischief alleged to have been committed by the accused persons by breaking tiles of the house of Roop Singh also does not inspire confidence.

Testing the evidence of the prosecution witnesses on the anvil of objective circumstances in the case no implicit reliance can be placed on their testimony. When the prosecution witnesses are not reliable, the back bone of the prosecution has broken and it will be difficult for the court to rely on such evidence and convict the appellants.

It is true that a ballam has been recovered at the instance of accused Teji Singh and an axe was recovered at the instance of Tantoo Singh and as per the report of Director, Forensic Science Laboratory, blood was found on the ballam and axe but as the stains on these weapons were disintegrated, the origin could not be determined. The prosecution has failed to establish that the blood found on these articles was human blood. The blood group also could not be determined. Moreover, none of the injuries alleged to have been found on the body of Vishram Singh can be said to have been caused by means of ballam and axe, therefore, recovery of ballam and axe at the instance of the appellants is insignificant.

Thus, the evidence of eye-witnesses suffers from serious infirmities. We unhesitatingly hold, that the evidence of eye-witnesses is incredible. Therefore, the conviction based on such evidence cannot be sustained.

In the premises discussed here-in-above, we hold that the impugned judgment is not sustainable on facts as well as in law, hence, the appeal is allowed and the conviction and sentence of the appellants are set aside and they are acquitted of the charges leveled against them.

The appellants are on bail. Their bail bonds shall stand discharged.