Sant Lal vs State of M.P.

S.C. Pandey, J.

These two appeals are directed against the judgment dated 11.3.1989 passed by the IInd Addl. Sessions Judge to the Court of District & Sessions Judge, Balaghat in S. T. No. 140/87. Theappellants are convicted u/s 302/34 IPC and sentenced to life imprisonment. Further they are also convicted u/s 307/34, IPC and sentenced to R. I. for 5 years. Both the sentences are directed to run concurrently. This judgment shall govern the disposal of Criminal Appeal No. 380 of 1989.

The prosecution case in short is as follows: In the village of Kumhari, district Balaghat, the accused person and the deceased persons formed themselves members of two different parties which are inimical to each other. It is alleged that the complainant party had illegaly encroached upon the Government land and the party belonging to the accused persons had complained to the Government regarding the encroachment. As a result thereof the complainant party was required to vacate the land. One Lakhiram belonging to the accused party was murdered and therefore, Jagitri Lodhi belonging to the accused party was sentenced life imprisonment. Thus, thereafter the parties became inimical to each other since 1974.

It is further alleged that on 24.6.1987 in village Kumhari the festival of Pola was celebrated. On the next day of Pola there were wrestling contest in the Middle School near Police Station Balaghat. The deceased Samrath and Babulal were among persons who had gone to see wrestling contest. It is alleged that in this contest the accused party and the complainant party clashed on certein points of contest and, therefore, the accused persons Santlal, Sahajlal @ Saiju, Maheshlal @ Maisu, Bhaulal, Ratanlal Yogal, Narbad @ Sidhhu, Lokpal, Yogendra @ Munna, Tulsiram, Phoolchand, Neithlal @ Neithu, Pawan, Durgaj., Hisab and Kodu formed an unlawful assembly with a view to murder Samrath and Babulal. They were armed with deadly weapons like knife and Phawda and Kudali Babulal and Samrath ran away from the spot where the contest was going on but the accused persons chased them. It is alleged that Babulal was first to receive a knife injury from Santalal and then other persons also attacked him. Samrath came to rescue of Babulal. He was then attacked. The villagers were threatened to the effect that if, any body thouched the body of Samarth he will also be murdered. In the mean while Babulal who had received injuries was still alive and ran away with Juarilal and lodged the FIR Ex. P-22 dated 25.8.1987, which was recorded by S. K. Nigam, A. S. I. Samrath was subsequently taken to the hospital at Balaghat where he died on next day due to shock and haemorrhage. Babulal was also having incised injury on his body and he was admitted in the hospital, Babulal received the injuries as per Ex. P-14 dated 25.8.1987. They are as follows :-

i. L. W. 1"x 1/4" x muscle deept. It is elliptical in shape. Both the ends of wound meet each other at a point. Direction horizontally placed from medial to lateral side caused by sharp culling object. Duration about within 3-4 hours.

ii. An abrasion about 1/2" x 1/4" over Rt. inter scapular region *upper part). Duration within 6 hrs. caused by hard and rough object,

iii. A.L.W.2"x 1/8" x muscle deep over Lt. side of frontal region of skull. Obliquely placed. Fresh bleading present, caused by hard and blunt object. Duration within 6 hrs.

iv. A depressed swellkng with tenderness present on forehead Rt. side of skull. Circular in shape in diameter of 1" caused by hard and blunt object. v. A. L. W. on the upper lip (It. half). Size 1/4" x 1/4" x muscle deep. Fresh bleeding present, caused by hard and blunt object.

Looking to his condition the doctor got his dying declaration recorded which is marked as Ex. P-6 dated 26.8.1987. Babulal admitted in the hospital from 25.8.1987 to 8.10.1987. He was then advised that he will receive proper treatment at Medical College, Jabalpur. On 11.10.1987 Babulal died. However, no post-mortem was done on his body and the prosecution had not produced his bed head ticket to prove his death.

Samrath was subsequently taken to hospital after the accused persons went away. He was examined by Dr. Pratap Singh Gaur (PW -18) who gave the injury report marked as Ex-. P-18. He had the following injuries on his body :-

i. Incised wound of 5 cm x 0.5 cms. into bone deep over occipital region. Advised skull x-ray.

ii. Incised wound obliquely placed 10 cm from middle at the level of eighth Dorsal vertebra of 3 cm x 1 cm into lung deep right side air coming out from it. Advised x-ray Chest.

iii. Incised wound of-2.5 cm x 0.5 cm x 0.5 cm over right side of chest. Obliquely placed 4 cm lateral to middle at the level of Dorsal Vertebra.

iv. Incised wound of 2 cm x 0.5 cm x 0.5 cm over right side of wall of chest, obliquely placed at the level of L2 vertebra,

v. Abrasion of 2 cm x 1 cm over left elbow.

Subsequentely on 26.8.1987 Samrath dies. After inquest of the body it was sent for post-mortem report which is marked as Ex. P-2. The following injuries were found on his body :-

i Repaired wound 5 cm in length present over occipital region :

ii. Repaired wound 3 cm in length present in 7th I. C. S. on back of Rt. side of chest about 10 cm from midline,

iii. Repaired wound 2.5 cm in length just beneath the 10th rib on back of right side of chest about a case from midline,

iv. Repaired wound 2 cm in length just near right renal angle,

v. Abrasion 2 cm x 1 cm over Lt. albow.

vi. Peritoneal cavity was found full of blood with massive retroperitance haematoma. There was through and through wound in right kidney which was communicating with injury no. 4.

vii. There was a tear in under surface of right lobe of liver (size about 2 cm). This was communicating with injury no. 3.

viii. There was a tear in right pleural with little amount of blood in pleural cavity. This tear in pleura cavity was communicating with injury no. 2.

After inquest on 26.8.1987 the doctor did the postmortem which document is marked as Ex. P-2. The Police has seized a knife and blood stained Kurta from the possession of Santlal. PW 16 Dr. B. M. Sharnagat had given his opinion that the injuries caused on the person of Babulal could be by means of this knife. After recording the evidence of witnesses and doing other formalities for the purpose of investigation, the police filed the charge sheet against the accused persons in the Court of J. M. F. C. Balaghat who committed the case to Sessions Court.

The learned Additional Sessions Judge framed the Charges u/s 307, 302 read with Sections 148 and 149 of the Indian Penal Code against Santlal, Sahajlal @ Saiju, Maheshlal @ Maisu, Bhaulat, Yoglal @ Avagaya and Yogendra @ Munna, rest of the accused were charged under sections 174 and 149 read with sections 307 and 302 IPC. The accused persons have abjured their guilt. Santlal stated that is was Babulal and Samrath who had attacked him and dealt him with lathi on his head and also on his back and he had merely saved himself. The accusd persons Ratanlal and Yogendra stated that they have been falsely implicated. The, rest of the accused persons slated that they were not present at the spot and they have been falsely implicated.

The learned Additional Sessions Judge after recording the evidence has acquitted all other accused persons except Santlal, Yogendra @ Munna and Babulal. He has convicted Santlal, Babulal and Yogendra @ Munna u/s 302 / 34 IPC and sentenced them to imprisonment for life and so far as Babulal is concerned these three persons were convicted u/s 307 read with section 34 IPC as already stated for five years R.I. Both the sentences were ordered to run concurrently.

The learned Additional Sessions Judge has found that the death of Samrath was homicidal in nature and for this purpose he had relied upon on the evidence of eye-witness and also the evidence of Dr. K. K. Khosla, who performed the post-mortem. The next question which has been a subject matter of challenge in this appeal whether the appellants had committed the offence u/s 302/34 IPC and committed the murder of Samrath, second question is whether the appellants are guilty of an offence u/s 307 / 34 IPC.

Before we proceed to examine the evidence on record we must take up the case of Babulal first. It was urged in the trial Court that Babulal had died in Medical College, Jabalpur on 11.10.1987 and his death was caused on account of injuries inflicted by the accused persons and, therefore, accused persons are guilty of the offence u/s 302 of the Indian Penal Code.

The learned Additional Sessions Judge in our opinion rightly held that in absence of any evidence of the concerned doctor who has treated the deceased Babulal and wrote bed head ticket at Medical College, Jabalpur it cannot be said that Babulal succumbed to the injuries caused by the accused persons. The prosecution has also not produced the post-mortem report of Babulal. There was no evidence to the effect that Babulal had died due to the injuries caused by the accused persons. The learned Additional Sessions Judge in our opinion, had rightly held that the prosecution had not produced the best evidence to prove the death of Babulal. In his opinion in the absence of bed-head ticket it was difficult to hold that Babulal had died and his body was taken to the Medical College for its own purpose by way of donation. He disbelieved the evidence of Lalji (PW 6) because in his opinion the administration of Medical College would not accept the body of deceased person who was the subject matter of medico-legal case. We do not find fault with the reasoning and conclusion of the learned trail Judge and accept his conclusion that the prosecution has utterly failed to prove the death of Babulal due to injuries caused by the accused persons. In such a situation, we will proceed to examine the evidence on record as if Babulal did not die due to injuries caused by the accused persons.

The impact of this circumstance would be that we cannot rely on dying declaration (Ex. P-6) because it is not covered by section 32 of the Evidence Act. The dying declaration must be such as disclosed the cause of death. Here it is not proved that the death was caused on account of the injuries and, therefore, Ex. P-6 is inadmissible in evidence as a dying declaration and cannot be of any use to the case of the prosecution.

Now we come to FIR (Ex. P-22). Ex. P-22 is also not proved by Babulal because he could not be examined as prosecution witness due to his death. We, therefore, agree with the learned trial Judge that Ex. P-22 cannot be used by the prosecution for any purpose.

The prosecution has examined PW 1 Tilak Chand, PW 2 Kara, PW 3 Begalal, PW 4 Babulal who is not the same Babulal who lodged the FIR, and PW 5 Saheblal. The learned trial Judge has found that PW 2 Kara, PW 3 Begalal, PW 4 Babulal and PW 5 Saheblal were interested witnesses and they were inimical to the accused persons. Therefore, in paragraph 27 of his judgment he has held that the version of this witness cannot be relied and acted upon unless it is corroborated in material particulars by an independent witness. Therefore, he has examined the testimony of PW 1 Tilak Chand who appeared to him to be an independent witness and sought corroboration from his evidence in respect of the testimony of the aforesaid witnesses. He has thus partly believed the evidence of other eye-witnesses, PW 2 Karu, PW 3 Begalal, PW 4 Babulal and PW 5 Saheblal to the extent corroborated by the testimony of PW 1 Tilak Chand. Thus, these witnesses are held only partly reliable. We, therefore, reject the contention of the learned counsel for the appellants that the learned trial Judge had acted upon the sole testimony of PW 1 Tilak Chand.

It is, therefore, necessary for us to examine the evidence of PW 1 Tilak Chand and try to find out if the evidence of Tilak Chand is reliable and can be accepted. If it is accepted, then only we will also examine the testimony of other witnesses to find if their testimony is corroborated by the testimony of PW 1 Tilak Chand. But on the other hand if this Court comes to the conclusion that the testimony of PW 1 Tilak Chand himself is not reliable then the testimony of other witnesses would be of little value because the learned trial Judge was himself of the view that these witnesses are the interested witnesses and are inimical to the accused persons.

PW 1 Tilak Chand says that on the day of Morbot i. e. to say next date of Pola at about 4.00 p. m. a wrestling context was organised in the school of village Kumhari. A school had an AKHADA for that purpose. He further slated that there were two boys who were wrestling and number of persons were watching the contest. It is said that there was some dispute regarding the decision in the wrestling and one Baba asserted that between two boys the contest was over but the accused persons Santlal, Maisulal, Babulal, Yogendra @ Munna beat Babbu (Babulal) son of Samrath. These accused persons wanted a fresh contest and, therefore, Babbu was beaten. The witness further said that fattier of Babbu, Samrath wanted to avoid further conflict and, therefore, told Babbu to leave the AKHADA. Then Samrath, Babbu and his friend Karu and PW 4 Babulal left the spot and began to proceed towards their home. Thereupon Santlal who was in the AKHADA ran towards these persons after discarding his Kurta Paijama. He caught Babbu near the road and stabbed him a knife. Santlal had knife with him. At that time Samrath was ahead of Babbu and he protested that Santlal had injured Babbu without any reason. Thereupon Santlal turned toward Samrath who began to run away from the sopt. At that time the friends of Santlal Maisulal, Sahaju, Bhaulal, Yogendra and Avagaya and Lokpal had also reached the road. Then the accused persons Avagaya caught hold of Samrath by his legs and Yogendra alias Munna used a Kudali and injured Samrath on the left temporal region. Thereupon Santlal ran towards Samrath and then stabbed him with knife. Lokpal dealt lathi blow to Yogendra @ Avagya used Fawda. Bhaulal used Pan Khudali for injuring Samrath and Babbu.

It was further alleged by Tilakchand that accused persons said that Samrath and Babbu should not be helped and whosoever helped them shall also be killed. At that time fattier of Santlal by name Ratan came to the spot and said that Samrath and Babbu have been rightly dealt with.

The FIR cannot be looked into for any purpose including corroboration of the evidence of this witness because it could not proved due to absence of Babulal. We have, therefore, looked for other sources for corroboration of the evidence of this independent witness. The injury report of Samrath is to be looked into for the purpose to determining whether Tilak Chand is pspeaking truth in the witness box or not. Ex. P-18 is the report of PW 18, Dr. P. S. Gaur. He had found five injuries on the person of deceased Samrath prior to his death. P. W. 18 Dr. P. S. Gaur has produced his injury report Ex. P-18 which have already been reproduced earlier. It may be readily seen from the injuries that four injuries are incised injuries and one is abrasion. The question is whether these injuries can be caused by the knife. In this connection Dr. Gaur did not give any opinion regarding the police querry whether these injuries could be caused by the knife and he had given no reason because the knife was not sent to him in sealed packet (Ex. P 20). We, therefore, have to draw out conclusion if the injuries have been caused by the knife. Dr. Gaur had opined that these injuries were caused by hard and sharp edged object. The injury no. 1 was on the head, it had caused a fracture. Injury no. 2 appears to be an incised wound, it was caused on the back of the deceased near eight vertebra it was quite deep and Doctor had advised for X-ray. Injury no. 3 is also 0.5 cm. deep near the dorsal vertebra. Injury no. 4 was on the back near the chest.

It appears that these injuries could not have been caused by the knife alleged to have been wielded by Santlal. The knife seized by the police from the possession of Santlal is 25 cm in length. Its blade is 15.50 cms and its width is about 2.50 cm. If Santlal had used this knife on the person of the deceased the injuries on his person would not be of purely incised nature. They would be eliptical in shape as are noticed in knife wounds. The sharp cutting edge of a knife would give the shape of edge of a knife. We do not find from the injury report of Dr. Gaur anything about the edges of wound. If that information was given in report, picture would be more clear. We do not think that these injuries could be caused by a Fawda. The blade of Fawda will make a larger cutting wound. Nor can we ascribe these injuries to use of Pan Kudali. It would have crushed the head of the deceased if Fawda and Kudali were used in the manner described by the witness. Moreover we hold that number of injuries on the deceased would be much more if this witness is to be believed. Thus we, therefore, doubt his evidence on this point.

In this case PW 1 Tilakchand in his corss-examination stated that his statement was recorded by the police after 23 days. He then changed his version and stated that this statement was recorded after 2-3 days after the incident. He is neither sure whether his statement was recorded on 18.9.1987 or not as shown by the police diary. In paragraph 12 of his statement he admits that there are omissions in his statement before the police. The most improtant omission was that he was unable to say why his version in the witness-box that the accused Santlal, Maisulal, Yogendra alias Munna started the quarrel with Baba Teli alias Laxman is not in Ex. D-1. The witness is unable to say why it is not recorded in Ex. D-1, that when the complainant party went to tell the accused persons not to beat Baba then the quarrel started and the complainant party was beaten. He was unable to say why the police omitted in his statement that Babbu was stabbed by accused Yogendra alias Avagyan. He was unable to say why the police had recorded in the statement Ex. D-1 that it was Lokpal who had beaten the deceased by lathi. He was also unable to say why he has made omission regarding blow dealt by Yogendra alias Avagyan on the temporal region of Samrath. Thus, all in all, this evidence is not very much reliable.

It may be clear from the evidence of PW 1 Tilak Chand that the deceased Samrath and Babulal were chased by the accused persons and they were beaten on the road. The murder was committed not by a singly person, but by all the accused persons. The injuries did not correspond to the statement of the witness. He is trying to implicate more persons than one and in his attempt to do so he magnified false-hood to such an extent that it cannot be safe to rely on his evidence. In this connection it must be remembered that the statement of the witness was admittedly taken on 18.9.1987 as per Ex. D-1 recorded by the then Investigating Officer, which is proved by PW 19 A. K. Atulkar, S.I. Thus, there was considerable delay in recording the statement of witness. The witness, however, stated in paragraph 7 that his statement was recorded before the Magistrate.

Looking to the statement of the witness as whole, we cannot rely on the testimony of this witness and therefore, we reverse the finding of the trial Judge that the testimony of PW 1 Tilak Chand is reliable and it is supported by medical testimony. There are no Kudali injuries on the left temporal region on the body of the deceased Samrath. The injuries on the occipital region arc incised in nature, bone deep. No doubt that there is fracture of skull but even that this would not show that these injuries could be caused by Kudali becasue of its nature. We have already seen that there is no stab wound on the person of the deceased. For these reasons we do not rely on the testimony of Tilak Chand.

Now we take up the evidence of four witnesses. PW 2 Karu, PW 3 Bagalal, PW 4 Babulal and PW 5 Saheblal. Out of them PW 2 Karu, PW 3 Begalal and PW 5 Saheblal are the real brothers. PW 2 Karu has accepted in his statement that he is Bhanja of the deceased and, therefore, it stands to a reason that all these witnesses arc related to the deceased. So far as PW 3 Begalal is concerned, he is the real brother of Samrath. It is not in dispute that these witnesses belonged to the opposite party which were inimical to the accused persons. In such circumstances, we have to examine the evidence of these witnesses carefully and conscientiously. We cannot take advantage of the testimony of PW 1 Tilak Chand as we have already held that PW 1 Tilak Chand is an unreliable witness and his testimony against the accused persons cannot be accepted. Therefore, the case against the accused would stand or fall on the testimony of these witnesses.

The learned trial Judge has already held that all these witnesses have stated against the accused persons Netlal and Durgaji, PW 2 Karu says that he was not a willing witness and his statement u/s 164 Cr. P. C. was recorded by the police as Ex. P-8. He had tried to implicate Ratan, Pawan and Tulsiram by asserting that they had caught hold of Samrath, but in statement u/s 161 Cr. P. C. their names are not mentioned. He did not explain the omission regarding these persons. The other witnesses have also not supported the presence of Ratan at the spot. In such a situation the statement of PW 2 Karu cannot be believed. Similarly the statement of PW 3 Begalal is almost to the same effect. He too has omitted in police case diary statement Ex. D-4 and in his statement u/s 164 Cr. P. C. that Tulsiram instigated Santlal. His story is that Pawan gave the knife to Santlal. He also admitted that he was required to give statement before the Magistrate u/s 164 Cr. P. C. This witness is also not reliable, and his version be belied by the medical evidence. PW 4 Babulal has also told the same version as the other two witnesses. He also says that Santlal had used knife against Babbu and Munna and used Kudali against Babbu and then against the deceased Samrath. It is stated by him that both Babbu and Samrath were stabbed by knife and also injured by means of Kudali. Munna had givan a kudali blow to Babbu and Samrath. Thus, this witness also exaggerates.

PW 5 Saheblal, like other witnesses mentions the name of persons who were taken part in Wrestling Contest i. e. Ganpal and Lokpal. It is said that Santlal was wanting re-contest and Babulal and Samrath wanted to pacify Laxman @ Baba and Santlal who were quarrelling among themselves. Then they were trying to go away. At that time Santlal stabbed. In order to implicate Pawanlal ascribes the role of using his teeth to open the knife. The accused party incited Santlal who used knife for attacking Babulal and Munnalal @ Yogesh used Kudali. Yogesh also attacked Samrath with Kudali and Santlal attacked on the back of Samrath with Knife. Then Sahju used Phawda Mahsu Kudali Jodya, Lokpal and Bhaulal used Lathis to attack Samrath.

This witness admits in cross examination that the investigating officer had asked to give his statement twice. He has been exposed in cross-examination. He had stated that Munna had stabbed Babulal and in the witness box he implicated Santlal. In the evidence he said that Kudali was used by Munna. The police had also got his evidence recorded u/s 164 Cr. P. C. It is clear that this witness is exaggerating and trying to implicate more than one person.

It is well established and it need not be reiterated that evidentiary value of the last four witnesses is very much lowered because the police is itself was not sure that they shall deposed in favour of the prosecution. The Courts are always worry about such witnesses because the apparent attempt of the prosecution to pin them down to their own version or in the alternative then fear of prosecution that they may turn hostile. Be that it may but it does speak very highly of such witnesses.

The defence has brought on record a document Ex. D-10 admitted by PW-19 Atulkar. It shows that Lalji had lodged a report dated 28.7.87 to S. P. Balaghat. This report implicates nineteen persons. Out of them sixteen persons were prosecuted. The trial Judge has acquitted thirteen persons. Therefore, also we must be very slow to convict on the testimony of the eye witnesses. The accused persons are entitled to get benefit of slightest reasonable doubt. It is clear from Ex. D-10 itself that the report was being made recklessly by trying to implicate the innocentes. The result usually is disastrous.

The learned counsel for the appellant has urged many alternative defences including the right of private defence and has cited numerous authorities. It is rather unfortunate that due to death of Babulal true facts could not be brought on record. The prosecution was unable to rely on the F. I. R. and dying declaration. It is probable that Babulal may not have died because he suffered mortal injuries but on account of the way he was treated at Distt. Hospital Balaghat He went to Medical College Jabalpur destined to die there. Since no one cared about his whereabouts, the inevitable result was that prosecution lost a crucial link in its favour. Naturally the benefit goes to the defence.

We have acquitted the appellants on facts and, therefore, it is not necessary to consider any other argument raised by the defence.

The result of the aforesaid discussion is that Criminal Appeal No. 313/89 and Criminal Appeal No. 380/89 succeed and they are allowed. The Judgment dated 11.3.89 by IInd Addl. Judge to the Court of Sessions Judge, Balaghat in S. T. No. 140/ 87 is set aside and the appellants are acquitted. They shall be set at liberty forthwith.