State of M.P. vs Daya Ram Pandey and Others

Rakesh Saksena, J.

State has filed this appeal against the judgment dated 2/9/1994 in Sessions Trial No. 74 of 1993 passed by Additional Sessions Judge, Panna, acquitting the respondents/accused from the offence punishable u/s 302/34 and section 323 of the Indian Penal Code.

In nutshell the prosecution case is that on 22-6-1993, at about 4.30 P.M., Ramcharan @ Bando (deceased) was going to his field from his house. His wife Mst. Ramsakhi (PW 6) and son Rajjan (PW 7) were following him at some distance. When Ramcharan reached in front of the flour mill of Ramkishore, situated outside the village, accused persons emerged out from the Beshram (Ipomea) bushes growing by the side of the passage. Accused Ram Das had a Farsa, Chhiddu had a Barchhi, Babboo and Daya Ram had lathis. Accused persons suddenly started assaulting Ramcharan by their respective weapons. When Ramsakhi (PW 6) went there and tried to save her husband, she was also assaulted as a result of which she suffered injuries. Ramsakhi yelled for help but nobody came to rescue them. As a result of injuries Ramcharan became unconscious and accused persons ran away. Ramsakhi and Rajjan proceeded for Police Station Ajaygarh taking the injured Ramcharan in a bullock cart. On the way after some distance she found a tractor then she carried him the tractor and lodged the report (Ex.P/19) at Police Station.

Ramcharan and Ramsakhi were sent for medical examination. Dr. P.C. Shrivastava (PW 3), on examining Ramcharan found him dead, hence, reported to police. The police reached at Govt. Hospital, Ajaygarh and recorded Dehati Murg Intimation (Ex. P/23). Dr. P.C. Shrivastava (PW 3) examined the injuries of Ramsakhi and vide his report Ex.P/16 found following injuries :-

(1) Contusion 4-1/2"'' 1/2" on right side of back in upper part, red in colour.

(2) Contusion 3-1/4" '' 1/2" on left side of back in upper part, red in colour.

(3) Lacerated wound 3/4" linear on the left palm at the base of her index finger.

The injuries were simple in nature and were caused by hard and blunt object. After inquest the dead body of Ramcharan was sent for postmortem examination. On 23-6-1993 postmartem was done by Dr. Upendra Kumar Gupta (PW 4), who vide his report (Ex. P/17) found 10 injuries which comprised of lacerated wounds and contusions on head and chest. Around 30-40 contusions of rail pattern were found on the left side of his back and hip. His 5th, 6th and 7th ribs were found fractured, membrane of brain and right lung were ruptured. The injuries were homicidal and the cause of death was multiple lethal injuries.

During investigation the accused persons were arrested and on their information their respective weapons were seized from their possession, spot maps (Ex. P/1 and Ex. P/18) were prepared and seized articles were sent for examination to Forensic Science Laboratory, Sagar. After investigation the charge sheet was filed and the case was put up for trial. Accused persons denied of having committed any offence and pleaded that they were innocent. According to them, on the date of the incident they were not present in village Pista and had gone to attend the date in the Court at Ajaygarh. They examined D.W.1 Ramkishore, D.W.2 Dadu Sahu, and D.W. 3 Ganga Prasad in their defence.

The prosecution examined 11 witnesses and exhibited 27 documents. Prosecution case mainly rested on the evidence of Ramsakhi (PW 6) and Rajjan (PW 7) and the medical evidence of Dr. P.C. Shrivastava (PW 3) and Dr. Upendra Kumar Gupta (PW 4). However, the trial Court holding their evidence to be unreliable mainly on account of conflict between ocular and medical evidence acquitted the accused persons.

Learned counsel for the appellant/State has submitted that the testimony of eye-witnesses viz., Ramsakhi (PW 6) and Rajjan (PW 7) is trustworthy and natural and is corroborated by the medical evidence furnished by Dr. P.C. Shrivastava (PW 3) and Dr. Upendra Kumar Gupta (PW 4). He submitted that Ramsakhi (PW 6) had suffered injuries in the incident, therefore, her presence could not be doubted. Merely on account of some conflict between the ocular and the medical evidence the whole of the prosecution case cannot be thrown out. As such he contended that the judgment of acquittal passed by the trial Court should be set aside and the accused be convicted and sentenced for the offence punishable u/s 302/34 and 323 of I.P.C.

Shri Madan Singh, counsel for the respondents/accused has supported the impugned judgment contending that there are glaring contradictions in the testimony of the aforesaid two eye-witnesses, who are close relatives of the deceased. He submitted that the evidence of the alleged eye-witnesses is belied by the medical evidence as no injuries on the body of deceased as well as on the body of injured Ramsakhi were found to have been caused by any sharp edged weapon, though accused Ram Das and Chhiddu were said to have been armed with farsa and spear respectively. He submitted that though the incident had occurred on the public passage, yet no independent witness was produced by the prosecution. The respondents were not present in the village and they had gone to attend the date in the Court at Ajaygarh and since nobody had witnessed the incident, due to enmity, the accused persons with whom the witnesses had inimical relations, were falsely implicated. Learned counsel submitted that the view taken by the trial Court was reasonably possible and therefore, this Court should not interfere in it in this appeal against acquittal.

We have heard the learned counsel for the parties and perused the records. Before we enter to appreciate the evidence and the material on record, it is pertinent to advert to the principles to be followed by the High Court while considering the appeal against the judgment of acquittal. The Apex Court in the case of Main Pal and Another Vs. State of Haryana and Others, has reiterated as under :-

there is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. As a matter of fact, in an appeal against acquittal, the High Court as the court of first appeal is obligated to go into greater detail of the evidence to see whether any miscarriage has resulted form the order of acquittal, though it has to act with great circumspection and utmost care before ordering the reversal of an acquittal. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favorable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to reappreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not. (See Bhagwan Singh v. State of M.P.) The principle to be followed by the appellate court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing material have been unjustifiable eliminated in the process, it is a compelling reason for interference. This position has been recently reiterated in Joseph v. State of Kerala, Devatha Venkataswamy v. Public Prosecutor, High Court of A.P., State of Punjab v. Phola Singh, State of Punjab v. Karnail Singh, State of U.P. v. Babu and Suchand Pal v. Phani Pal.

Keeping in mind the principles enunciated as aforesaid when we examine the evidence adduced by the prosecution, we see that the prosecution is dependent on the evidence of eye-witnesses viz., Ramsakhi (PW 6) and Rajjan (PW 7), the wife and the son of the deceased respectively. Ramsakhi is said to have lodged the report at the Police Station - Ajaygarh narrating the incident. Before the trial Court she categorically stated that at about 4.00 P.M. when her husband was going ahead of her, near the flour mill of Ramkishore, all the four accused persons, armed with Farsa, spear and lathis, came out of the Beshram (Ipomea) bushes and started assaulting her husband. Ram Das and Chhiddu were armed with Farsa and spear respectively and other two were armed with lathis. When she tried to rescue Ramcharan, Ram Das assaulted her by the stick side of Farsa on her back and on the palm of left hand. Learned counsel for the respondents has stated that in the first information report this witness has said that Ram Das has assaulted her by lathis. This contradictions does not appear to be material since the assault by the stick side of Farsa shall not make much difference in the nature of injuries. Ramsakhi deposed that Ram Das had assaulted her husband by Farsa, Daya Ram and Babboo had assaulted by lathis and Chhiddu had caused injuries by Barchhi and despite her crying for help nobody came forward to fescue him though several people had come there. Learned counsel for the respondents submitted that Ramsakhi (PW 6) and Rajjan (PW 7) have stated that accused Ram Das was armed with Farsa and Chhiddu was armed with spear and both of them had assaulted the deceased with their weapons, however, on postmortem examination Dr. Upendra Kumar Gupta (PW 4) did not find any corresponding injury caused by any sharp edged and pointed weapon. Thus, in view of the aforesaid conflict between the evidence of alleged eye-witnesses and the medical evidence, the evidence of eye-witnesses was not reliable and their presence at the spot at the time of incident was doubtful. Learned counsel submitted that the finding of the trial Court in this regard holding the presence of the aforesaid eye-witnesses at the spot doubtful, was perfectly justified.

Ramsakhi (PW 6) and Rajjan (PW 7), both, have deposed that during the occurrence Ramsakhi had tried to save Ramcharan and in that process she had also suffered injuries at the hands of accused persons. Dr. P.C. Shrivastava (PW 3) has deposed that he had found three injuries on the body of Ramsakhi (PW 6), two were contusions on the back and one was lacerated wound on the left palm of her hand. He had examined Ramsakhi in the night of 22/6/93. These injuries were caused by hard and blunt object. In cross-examination Dr. P.C. Shrivastava deposed that these injuries were also possible by falling forcefully. In view of the aforesaid statement of Dr. P.C. Shrivastava, learned trial Court held that since Ramsakhi had admitted that she fell down due to deep sorrow, these injuries were possibly caused by that fall. In our opinion, the inference drawn by the learned trial Court was not correct. The injuries were in the nature of longitudinal contusions found on the back of Ramsakhi and other injury was a lacerated wound on the palm. These, injuries in no manner were possible by the fall. The evidence of Dr. P.C. Shrivastava (PW 3) in this regard cannot wipe out the effect of the evidence of Ramsakhi (PW 6). The finding of the trial Court that Ramsakhi (PW 6) did not receive injuries in the incident is perverse. Her presence at the spot is amply established by the presence of aforesaid injuries on her body and also by the first information report wherein she mentioned that she was assaulted by accused persons. The fact as to who caused which injury during the incident was not material.

Once it is established that Ramsakhi was present at the spot at the time of the incident, her evidence assumes importance. Since she and witness Rajjan (PW 7) are the close relatives of deceased, therefore, their evidence deserve to be critically analysed. Ramsakhi for her being widow of the deceased cannot be disbelieved only on that count. In fact, she had no interest in protecting the real culprits and falsely implicating the accused persons. However, in the background of past enmity, evidence of both the aforesaid witnesses deserves meticulous and critical analysis. P.W.6 Ramsakhi as well as P.W.7 Rajjan have stated that Ramcharan was going ahead of them when accused person suddenly emerged out from Beshram bushes and started assaulting him. According to them, respondent/accused Ram Das had assaulted deceased with Farsa and accused Chhiddu had assaulted with spear.

Though, it was not possible to depose as to how many blows of Farsa and spears were inflicted by the aforesaid accused persons, yet she has attributed them specific act of assaulting the deceased by Farsa and aspear. On perusal of the evidence of P.W.4 Dr. Upendra Kumar Gupta it is revealed that though he had found 40-50 injuries on the body of deceased, yet not a single injury was found to have been caused by sharp edged or sharp and pointed weapon. If two of the assailants were inflicting blows by the sharp edged and pointed weapons then it is impossible that not even single corresponding injury by such weapons would be found on the body of the deceased. Thus, it appears that the aforesaid two witnesses have exaggerated in involving the two respondents Ram Das and Chhiddu in the incident. Their presence and participation in the incident is not established beyond the reasonable doubt. The finding of acquittal with respect to respondents Ram Das and Chhiddu, recorded by the trial Court does not call for any interference.

With respect to other two remaining accused persons viz. Daya Ram and Babboo Pandey, the evidence of Ramsakhi and Rajjan is categoric that they had assaulted the deceased by means of lathis. The evidence of Ramsakhi (PW 6) stands corroborated by the first information report lodged by her just four hours after the incident. The first information report cannot be said to have been lodged after inordinate delay. The incident had taken place at 4.30 P. M. and the report was lodged at Police Station - Ajaygarh at 8.25 P.M. The police station is 12 kilometers away from village Pista, where the incident had occurred. The argument advanced by the learned counsel for the respondents that the first information report was fabricated and was recorded after the postmortem examination was performed, has no merit. The suggestion put to Investigating Officer that the counterfoil of the first information report was not sent to Magistrate, Ajaygarh, was denied by Jagdish Prasad Pathak, Investigating Officer (PW 11). There is no material on the record to show that the first information report was fabricated and made ante-timed.

Learned counsel for the respondents submitted that in the spot map (Ex. P/1), prepared by Rameshwar Prasad Patwari (PW 1), no Beshram bushes were shown and this witness in his cross examination admitted that there were no such bushes by the side of the passage, where the incident had occurred, therefore, the testimony of alleged eye witnesses was unreliable. Though, it is true that in the spot map (Ex.P/1) bushes were not shown, yet from the evidence of Jagdish Prasad Pathak, Investigating Officer (PW 11), it is found that in front of the flour mill of Ramkishore, at about 15 paces, Beshram bushes were present. His evidence is corroborated by the spot map (Ex.P/18), prepared by him before the witnesses on the morning of 23-6-1993. The evidence of Investigating Officer (PW 11) appears to be reliable. Learned counsel for the respondents further submitted that the witness Ramsakhi (PW 6) stated that her clothes as well as the clothes of Rajjan were stained with the blood of the deceased, yet the police did not seize their clothes, therefore, their presence at the place of occurrence is doubtful. In our opinion, omission to seize the clothes of witnesses does not appear to be material in the circumstances of the case. From the evidence of Ramsakhi it appears that after the occurrence she and Rajjan has carried her husband in a bullock cart, thereafter in a tractor to reach the police station and thereafter she had gone to Hospital. In such circumstances it could not be expected of the witnesses to have shown there clothes to Investigating Officer that and it was not essential for the Investigating Officer also to seize the clothes of witnesses, who were suffering with such a serious mental trauma at that time.

Learned counsel for the respondents referred to the evidence of Ramsakhi, wherein she deposed that her son Rajjan was residing in Awasthi Mohalla, near the house of accused persons in Ajaygarh and he pointed out that witness Rajjan had denied this fact in his evidence. On the basis of this inconsistency learned counsel argued that the presence of Rajjan at the house of the deceased was doubtful. On perusal of the evidence of aforesaid witnesses we do not find any abnormality about the presence of Rajjan (PW 7) in the house of his parents. Merely by residing at some other place, it could not be presumed that Rajjan, who happened to be the son of Ramsakhi, could not have come to the house of her mother. On this count the evidence of Rajjan cannot be doubted. Learned counsel for the respondents submitted that it was highly unnatural and improbable that witness Rajjan being the son of the deceased, did not make any attempt to save his father. Had he been there, he would have naturally intervened and would have also suffered injuries in the incident. In our opinion, this argument has no force. It is not possible to define a particular course of conduct for any person in a given circumstance, every individual reacts differently in the given circumstances as it depends upon the nature and disposition of particular individual.

The fact that accused persons has gone to attend a date in the Court Ajaygarh, on the day of the incident, though, admitted by P.W.6 Ramsakhi in her evidence, is not sufficient to hold that the accused could not have been present in village Pista at about 4.30 P.M. According to first information report (Ex.P.19), the distance of Ajaygarh from village Pista is around 12 Kilometers. It cannot be held that the accused could not have come back to village Pista after attending the court proceedings. Besides that no record of the proceedings of the Court had been produced by the accused persons to show that they had, in fact, remained in the Court at Ajaygarh till the time of the incident.

Learned counsel for respondents contended that the incident is said to have occurred at the public passage, in front of the flour mill of Ramkishore Tiwari, where number of persons would have witnessed it, yet not a single independent eye-witness has been examined by the prosecution. In para 5 of her statement Ramsakhi (PW 6) has stated that despite her crying for help, none from the village had come to rescue her husband, though several persons were present there. In para 42, she further deposed that she was not able to name the persons who had come at the spot, if they would have come forward to rescue her husband then she could have named them. Though, they were the people of the village, yet they kept on watching her husband being beaten, but did not come forward to help him. She further clarified that she did not know their names. Jagdish Prasad Pathak, Investigating Officer (PW 11) in this regard deposed that during the investigation, except Ramsakhi and Rajjan, nobody disclosed to him to have seen the occurrence. In the above peculiar situation, where the people behaved in such a cowardly manner and did not come forward to rescue the victim and to tell the police about the incident, it was not possible for the police to have procured the independent witnesses. In Appabhai and another v. State of Gujarat (AIR 1998 SC 696) the Apex Court observed:

11......... It is no doubt true that the prosecution has not been able to produce any independent witness to the incident that took place at the bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused. The court, however, must bear in mind that witnesses to a serious crime may not react in a normal manner. Nor do they react uniformly. The horror stricken witnesses at a dastardly crime or an act of egregious nature may react differently. Their course of conduct may not be of ordinary type in the normal circumstances. The Court, therefore, cannot reject their evidence merely because they have behaved or reacted in an unusual manner.

Thus, merely on the ground of non-examination of independent witnesses, the evidence of witnesses viz., Ramsakhi (PW 6) and Rajjan (PW 7) cannot be discarded.

So far as the defence evidence is concerned, Ramkishore (DW-1) and Dadu Sahu (DW-2), examined by accused persons, though deposed that they had found the dead body of Ramcharan laying in front of flour mill, and that they had sent the message to Ramsakhi, whereupon she had come at the spot and further that the accused persons had gone to Ajaygarh Court to attend their date, yet in view of the reliable testimony of Ramsakhi, who suffered injuries in the incident, the testimony of defence witnesses does not inspire confidence.

On due consideration of the overall circumstances of the case and on re-appreciation of the evidence on record, we are of the definite opinion that the appreciation of evidence done by the trial Court is perverse. It has wrongly discarded the evidence of P.W.6 Ramsakhi and P.W.7 Rajjan, which is found reliable with respect to respondents accused Daya Ram and Babboo Pandey. It is a case in which the grain could be separated from the chaff. From the evidence of aforesaid eye-witnesses it is amply established that accused Daya Ram and Babboo Pandey assaulted the deceased by lathis as a result of which he died and also caused simple injuries to Ramsakhi. The impugned judgment of acquittal with respect to aforesaid respondents viz. Daya Ram and Babboo is clearly unreasonable as the relevant and convincing evidence has been unjustifiably discarded.

Accordingly the appeal is partly allowed. Acquittal of respondent No. 1 Daya Ram and respondent No. 4 Babboo is set aside, they are convicted for the offence u/s 302 read with section 34 of I.RC. and sentenced to imprisonment for life. They are further convicted u/s 323/34 of I.P.C. and are sentenced to R.I. for six months. They shall surrender to undergo the sentence. The appeal with respect to respondents No. 2 Ram Das Pandey and respondent No. 3 Chhiddu @ Shivdas is dismissed.