Rameshwar and Another vs State of M.P.

R.B. Dixit, J.

Judgment in this appeal shall also govern the disposal of Criminal Appeal No. 57 of 1986, Udayveer @ Lotan v. State of Madhya Pradesh, as both appeals arise out of common judgment dated 31st January, 1986, delivered by Second Additional Sessions Judge, Bhind, in Sessions Trial No. 89 of 1985, thereby convicting the appellants Rameshwar as well as Udayveer u/s 302 read with Section 34, IPC and sentencing them to life imprisonment. They were also convicted u/s 201, IPC and sentenced to three years rigorous imprisonment.

Facts in brief, shorn of details and necessary for disposal of these appeals are in narrow compass. On 27-2-85 at about 5.00 p.m. when deceased Govardhan was at his field he asked Udayveer as to why he indulge in abusing him, whereupon Rameshwar brought a Farsa from his house and abusingly assaulted the deceased twice on head and neck followed by Udayveer who also assaulted the deceased by lathi, as a result thereof deceased fell down on the ground. Dinesh son of Rameshwar also arrived at there armed with lathi and assaulted the deceased with lathi when he was lying on the ground.

Raghubir Prasad (P.W. 1), who is one of the eye-witnesses of the incident when intervened, accused persons also rushed to assault him with a result that he ran away from the spot and came to his brother-in-law, Munshilal and narrated him the incident. Then accompanied with Munshilal he lodged First Information Report (Ex. P-1) at Police Station, Mehgaon.

Jainarayansingh Parihar (P.W. 11), Station House Officer, after recording First Information Report came in the night itself and inspected the spot. He also went at the place where the deceased was being cremated and with the help of villagers took out the half burnt body from the pyre and recovered semi-burnt skeleton of the deceased. He also collected bloodstained earth from the spot, which was sent for chemical examination. Chemical Examiner confirmed presence of blood on the earth, which has been marked as Article ''A'' in Ex. P-15. It is reported that the recovered bones were sent for post-mortem examination and lateron were also forwarded for Medico-Legal test. However, neither ppst-mortem report nor medico-legal report has been brought on record nor any medical-expert has been examined on behalf of the prosecution in this regard.

The defence of the accused persons is of complete denial and of false implication out of enmity.

Learned Trial Court after recording prosecution evidence and examining the accused persons u/s 313, Cr.PC came to the conclusion that there is no ground to disbelieve the testimony of Raghubir Prasad from whose evidence it is proved that deceased was assaulted by the appellants and accordingly convicted them as stated hereinabove.

Learned Counsel for appellants has submitted before us that appellants are sons from first wife of the deceased while Raghubir Prasad and Mahabir are sons from second wife. Admittedly, there were family disputes between both the parties and the deceased. There were number of litigations of assaulting each other as well as land disputes between them. Raghubir Prasad, long before the instant incident, was residing at Mehgaon. In the circumstances, the question of his presence at the time of alleged occurrence does not arise. The independent witnesses produced in support of prosecution and they all have turned hostile.

It seems that out of previous enmity Raghubir Prasad with the help of his brother-in-law, Munshilal, had concocted a false story. In fact, the deceased had died a natural death and was accordingly cremated with necessary rituals by the appellants who are his real sons.

Learned Additional Government Advocate on the other hand has supported the findings of the learned Trial Judge.

We have considered the rival submissions of the parties and have carefully perused the record.

Raghubir Prasad (P.W. 1) has admitted that one of his brother Mahabir had separated himself for 20-25 years and was residing at Gormi. Although this witness tried to impress that after this incident he went to Mehgaon, however, the Investigating Officer, Jainarayan Singh Parihar, (P.W. 11) in para 5 of his cross-examination has admitted that wife and children of Raghubir Prasad had not been residing at Kohar at the time of incident and they were residing at Mehgaon from before.

Shivnarayan (P.W. 5) in para 3 of his cross-examination has admitted that accused Udayveer had turned a hermit for the last six years and was residing away from Kohar in a Shiva-temple. Similarly, he has also admitted that Raghubir Prasad was not keeping good terms with his father and was, therefore, residing at Village Mehgaon. Thus, there is enough evidence to suggest that Raghubir Prasad was residing at Mehgaon. In the circumstances his version regarding assault on the deceased cannot be believed particularly when there is no corroboration in support of his evidence. Udayveer was reportedly blind, as such, his involvement is also doubtful.

It is further to be noticed that even when the deceased, father of Raghubir Prasad, was being assaulted by his step brothers, he made no effort to save him nor he tried to collect villagers and without waiting for the fate, whether his father is dead or alive he went to another village to contact his brother-in-law, Munshilal. The natural conduct in such a situation of a real son was to make attempts to save the life of the deceased. The witness should have atleast gone straight first at the police station in order to seek earliest police protection, even when the police station is hardly six kilometers from the place of occurrence and he could have reached there within half an hour. Police report was lodged after more than three hours and the conduct of the Investigating Officer does not seems to be quite fair as it has come in the evidence of Raghubir Prasad that from neck to waist only half of the body of the deceased was recovered by the police and rest parts of the body were turned into ashes. However, it seems that Panchnama, Ex. P-2, has been prepared only regarding recovery of ten burnt bones pieces. No date and time has been mentioned in this Panchnama and the date below the signature of the Investigating Officer is found over-written. From the statement of Raghubir Prasad it seems that half burnt body was recovered. However, this fact is belied by the evidence of Investigating Officer and memo of recovery (Ex. P-2).

In so far as the other witnesses of the occurrence, Rameshwardayal (P.W. 2), Gopiram (P.W. 3), Vinod (P.W. 4), Naresh (P.W. 9) and Sureshsingh (P. W. 10) are concerned, they have not at all supported the case of prosecution and were declared hostile. Other witnesses of the prosecution i.e., Shivnarayan (P.W. 5), Kailashnarayan (P.W. 6), Village Chowkidar Kishora (P.W. 7) have also not supported the prosecution and were declared hostile.

Harvilas (P.W. 8) although declared hostile by the prosecution has, however, stated that he had heard from the villagers that deceased was murdered by appellants. This, he came to know after twenty days of the death of the deceased, who was his maternal uncle. He could not even say from whom he heard about the incident. This being clearly hear-say evidence is not admissible in evidence. On the other hand, according to his police case diary statement he is an eye-witness but he has denied to have witnessed the occurrence. In such a situation, in our opinion, no conviction can be based on such a hear-say evidence.

From the evidence of another hostile witness Gopiram (P.W. 3) it appears that when this witness met the deceased he had wished him well, which means the deceased was alive at that time. The evidence of this witness, in our opinion, does not help the prosecution in any manner.

Learned Additional Government Advocate relying upon the decision of the Apex Court in the case of AIR 2001 2842 (SC) , has strenuously urged that where the evidence of eye-witnesses is available it is not necessary to prove from medical evidence that the death was homicidal It is not at all necessary for a conviction for murder that the corpus delicti be found. Undoubtedly, in the absence of the corpus delicti there must be direct or circumstantial evidence leading to the inescapable conclusion that the person has dies and that the accused are the persons who had committed the murder. However, in our opinion, in the aforecited case there was clinching evidence of eye-witnesses that murder has taken place. However, in the present case no reliance can be placed on the only evidence of so called eye-witness Raghubir Prasad (P.W. 1) who in our opinion resides at a different village and was not present on the spot at the time of alleged offence.

It has been held in the case of Chanan Singh Vs. State of Haryana, , that where the conduct of a witness in running away from the place of occurrence even though he was not chased or threatened by any one of the assailants and his not reporting the incident even to the relatives of either of the two deceased persons was treated as abnormal.

In another decision of the Apex Court in the case of Ram Ashrit Ram and Others Vs. State of Bihar, , it has been observed that when all the material witnesses in a murder case were either related or otherwise interested in the prosecution, their testimony had to pass the test of close and severe scrutiny before their testimony could be safely acted upon. In the absence of corroboration to a material extent in all material particulars, it was extremely hazardous to convict the accused persons on the basis of the testimony of these highly interested, inimical and partisan witnesses, particularly when it bristles with improbable versions and material infirmities.

In so far as the present case is concerned where no independent witness has corroborated the prosecution version of the eye-witness, the conduct of the only witness Raghubir Prasad who has supported the prosecution is not in any way found natural to the extent that his presence itself on the spot has become doubtful. The prosecution agency has also not acted in all the fairness of the occasion. Further, there is no medical corroboration of the incident. Thus, in our opinion the learned Trial Court has erred in arriving at a conclusion of finding the accused persons guilty of the offence alleged against them. In our opinion, the appellants are entitled to be acquitted by giving them benefit of reasonable doubt.

Consequently, this appeal succeeds and is allowed, and the convictions and sentences of the appellants are hereby set aside.