State of Madhya Pradesh vs Mohan Singh & Ors.

The present appeal has been preferred by the State/appellant under Section 378(3) of Cr.P.C., being aggrieved by the judgment and conviction

dated 28.02.1994, passed by Second Additional Sessions Judge, Sagar in S.T. No.02/1990, whereby the respondents have been acquitted of the

offences punishable under Sections 302/120-B, 148, 302/149 of IPC. Appeal against respondent Mohan and Karan Singh stands abated due to

their death.

The case of the prosecution in brief is that one day prior to incident, deceased Ram Dayal had lodged the cattle of appellant Mohan Singh,

Nand Ram and Chintua in the pond at village Teharka. Next day on 16.07.1989 at around 9 O ?lock in the morning Ram Dayal was sitting under

a mango tree situated in his field, the respondents Arjun, Bhumani Singh, Brajbhushan, Nandram along with other accused persons namely Mohan

Singh, Karan Singh, Champalal, Mahaveer, Deman Singh, Hari, Chintaman, Sundarlal and Chandan Singh, armed with lathi, axe and farsa came

there and started beating Ram Dayal by there respective weapons. Ram Dayal raised the alarm for help, hearing his cry, the complainant Lala Ram

and witness Govinddas Ghashayam and Ramratan came on the spot, seeing them, the respondents and other co-accused persons flew away. Ram

Dayal had sustained fatal injuries, he was taken to police station Nivadi where his son Lalaram lodged the F.I.R. Ex.P-1. Ram Dayal was taken to

Primary Health Centre, Teekamgarh for treatment. Dr. Vinod Ravat examined him and referred to Medical College, Jhansi, but Ram Dayal

succumbed to his injuries at around 1:45 p.m. On intimation from hospital, S.K. Goswami Sub Inspector recorded the Marg Intimation Ex.P-42

and conducted the inquest. The Panchnama of dead body Ex.P-3 was prepared and body was sent for postmortem. The police registered an

offence under Section 302 of I.P.C. and investigated the matter. The spot map Ex.P-6 was prepared. On 20.07.1989 the respondents Mohan

Singh and Karan Singh and accused Champalal were arrested and on the basis of their memorandum statements, a lathi was seized from

respondent Champa Lal, and axes were seized from Mohan Singh and Karan Singh. The statements of witnesses were recorded and after

completion of investigation, the charge-sheet has been filed before the Court.

The trial Court framed charge of offence punishable under Section 148, 302/149 and 302/120-B of I.P.C. on respondents and other co-

accused persons. They abjured guilt and pleaded innocence. The prosecution has examined 13 witnesses in its support whereas the respondents

had examined four witnesses in their defence.

The trial Court on appreciation of evidence has arrived at the conclusion that the testimony of prosecution witnesses are not believable beyond

reasonable doubt. It is not proved that the respondents had formed unlawful assembly with an object to commit murder of deceased and in

furtherance of common object, they had assaulted the deceased and killed him. The trial Court acquitted the respondents of the charge of alleged

offence. Being aggrieved of this order of acquittal, the State has preferred present appeal.

Heard arguments and perused the record.

It is not disputed that deceased Ram Dayal sustained fatal injuries on 16.07.1989 at his field. He was taken to hospital for treatment where he

succumbed to his injuries. The police prepared Marg Intimation Ex.P.- 42 and initiated the inquest. The Panchnama of dead body was prepared

and body was sent for postmortem. This fact is duly verified by statements of PW-1, PW-2, PW-5 and S.K. Goswami Sub Inspector PW-13.

Dr. Vinod Rawat (PW-12) deposed that on 16.07.1989 the deceased Ram Dayal was brought to the hospital in injured condition. He was

medically examined by the doctor. In his MLC report Ex.P-38, it is described by the doctor Vinod Rawat that there were four lacerated wounds

found on the head and frontal region of head of deceased and three incised wounds were found one on the face, one on left forearm and one on

left thigh, there was lacerated wound of size 3/4, 1/4 x 1/3 inch found on right knee also. The statement of Dr. Rawat is duly corroborated by

MLC report Ex.P-39.

Dr. Vinod Rawat further deposed that Ram Dayal had expired on the same day i.e. 16.07.1989 he had conducted postmortem of his dead

body at around 4 O''clock in the evening and found following injuries -:

(i) Lacerated wound 1-1/2 x 1/2"" x bone deep at left side of forehead.

(ii) Lacerated wound 3"" x 1/4"" x bone deep on right side of forehead.

(iii) Lacerated wound 2"" x 1/4"" x bone deep at ocpital region.

(iv) Incised wound 3/2"" x 1/4"" x1/5"" right side of face at mendibal.

(v) Incised wound 1"" x 1/4""x 1/3"" over left forearm.

(vi) Incised wound 3-1/2"" x 1/4""x 1/5"" in mid part of thumb and index finger.

(vii) Lacerated wound 3/4"" x 1/4"" x 1/3"" over right knee.

(viii) Two abrasions 2"" x 1"" and 9/4"" x 1/2"" on the back.

(ix) Incised wound 3/4"" x 1/4"" x muscle deep on left thigh and there was a fracture of femur bone.

It is further stated by the doctor that the injuries are caused by hard and sharp; and hard and blunt object within twelve hours of examination. The

injuries are homicidal. There was heamotoma and clotted blood inside the head and in the brain. The death is result of injuries caused to deceased

at the time of incident. The statement of doctor is duly corroborated by postmortem report Ex.P-38. The defence had not controverted the findings

recorded by the doctor and postmortem report. Therefore, relying upon the testimony of doctor it is proved that deceased has sustained fatal

injuries at the time of incident and his death was homicidal.

Now the question arises whether the respondents being member of unlawful assembly had caused fatal injuries to deceased Ram Dayal in

furtherance of common object of assembly and committed his murder. The case of prosecution rests upon the testimony of witnesses complainant

Lalaram (pw-1) his brother Govind Ram (PW-5) and mother Jamuna Bai (PW-2). The other witnesses examined by the prosecution did not

support its case and had been declared hostile. Complainant Lalaram (PW-1) deposed that on 16.07.1989 at around 9 O''''clock in the morning

he was doing agricultural work in his field. His brothers Govind, Ghanshyam and Ramratan were also present there. His father deceased Ram

Dayal was present in the field namely ""Matanbare Kuan"" situated some 100 meters away. Meanwhile, the respondents Mohan Singh, Karan,

Arjun, Bhumani, Brajbhushan, Nandram along with other co-accused persons Champa Lal, Mahaveer, Diman Singh, Hari, Chintua, Sunderlal and

Chandan arrived there and surrounded the deceased Ram Dayal. Seeing the accused persons, Ram Dayal raised the alarm hearing this, Lalaram,

Govind, Ghanshyam and Ramratan rushed to the Matanbare Kuan field. He saw respondent Chandan Singh was making exhortation to kill Ram

Dayal and respondents Mohan Singh, Karan, Nandram assaulted Ram Dayal by axe on his head. Respondents Bhumani inflicted blow of farsa on

his head, Brajbhushan assaulted him by lathi on his back. When Lalaram and his brothers tried to intervene and save the deceased, other accused

persons Champalal, Mahaveer, Diman Singh and Hari obstructed them to save the deceased. They were armed with lathies. After beating Ram

Dayal the respondents and other accused persons flew away. Other witness Govind (PW-5) also deposed in similar way as Lalaram (PW-1).

Jamuna Bai (PW-2) deposed that at the time of incident, her husband deceased Ram Dayal was present in the field namely Matanwale. She

was also present in adjacent field. Meanwhile, respondents Chandan Singh arrived with Mohan Singh, Karan Singh, Bhumani, Arjun, Nandram

and Brajbhushan armed with axe and lathi. They surrounded Ram Dayal and started beating him. Seeing the incident, Jamuna Bai cried for help,

hearing this, her son Govind, Lalaram and Ghanshyam who were present in nearby field arrived there. Other accused persons Chintua, Sunder,

Diman, Champalal, Mahaveer and Haria were also standing near the scene of occurrence. After beating Ram Dayal, the accused persons ran

away.

On careful appreciation of evidence given by the witnesses PW-1, PW-2 and PW-5, we find material infirmity and discrepancies in their

testimonies. These witnesses have not stated that accused Chandan had assaulted the deceased. It is not mentioned in FIR Ex.P-1 that Chandan

was exhorting the other accused persons to kill the deceased. Even his presence is not stated in FIR. This is material omission which creates doubt

on involvement of accused Chandan. Thus, the trial Court has rightly acquitted the accused Chandan.

Lalaram (PW-1) and Govind (PW-5) deposed that when they tried to intervene and save the deceased, accused Champalal, Mahaveer,

Diman Singh, Hari, Chintua and Sunderlal obstructed them and threatened them to beat if they interfere. Whereas Jamuna Bai (PW- 2) does not

corroborate above fact and deposed that Champalal, Mahaveer, Diman Singh, Hari, Chaintua and Sunderlal were standing at a distance from the

scene of occurrence. She does not state that these accused persons have participated or aided the other accused persons or respondents in

commission of crime. It is also not mentioned that at the time of incident they were armed with any weapon. Considering this aspect, the trial court

on appreciation of evidence has rightly found the case of prosecution doubtful against the co-accused Champalal, Mahaveer, Diman Singh, Hari ,

Chintua and Sunderlal. Thus, the trial Court has rightly acquitted these accused persons from accusation of alleged offence.

As far as respondent Arjun is concerned, Govind (PW-5) deposed that he had inflicted a blow of axe on hand of deceased. But this is not

corroborated by complainant Lalaram (PW-1). He has not stated that at the time of incident, Arjun was armed with axe or he had inflicted a blow

of axe on the deceased. In view of this discrepancy, the case of prosecution against Arjun becomes doubtful.

Lalaram (PW-1) and Govind (PW-5) deposed that respondent Bhumani and Nandram inflicted blows of axe on the head of deceased. But, as

per trial Court, this fact is not verified from the medical report. Thus, there is variance between medical and ocular evidence, which creates doubt

on testimony of PW-1 and PW-5. Lalaram (PW-1) deposed that respondent Brajbhushan inflicted a blow of lathi on back of deceased whereas

Govind (PW- 5) has stated that Brajbhushan was armed with axe. No injury of lathi was noticed by doctor on back of the deceased in

postmortem report Ex.P-38. This discrepancy creates suspicion about participation of Brajbhushan in commission of crime.

Although Jamuna Bai (PW-2) claims herself as eyewitness of the incident but her presence is not mentioned in the FIR Ex.P-1. The trial court

doubted the testimony of PW-1 and PW-5 also on the ground that they did not try to intervene and save their father when it is not found proved

that they were prevented or obstructed by other co-accused persons to intervene and save their father.

In view of above discussion, considering the evidence adduced by the prosecution and defence, it is found that the testimonies of witnesses

Lalaram (PW-1), Jamuna Bai (PW-2) and Govind Das (PW-5) are not believable in respect of involvement of co-accused persons Champalal,

Mahaveer, Diman Singh, Hari, Chintua, Sunderlal and Chandan. It appears that these appellants have been implicated in the present offence

without any reasonable cause. Therefore, the testimonies of witnesses PW-1, PW-2 and PW-5 who are the wife and sons of the deceased cannot

be relied upon without corroboration by independent witnesses. There was previous enmity between the parties.

In our considered opinion, the trial Court on proper appreciation of evidence arrived at the conclusion that the case of prosecution is not

proved beyond reasonable doubt against respondents Arjun, Bhumani, Brajbhushan and Nandram. We do not find any infirmity or illegality in the

findings recorded by the trial court. When two views are possible then the view adopted by trial court in favour of accused persons may be

accepted.

Consequently, we affirms the findings of acquittal recorded by the trial court and dismissed the present appeal as devoid of merits.