Madhya Pradesh High Court
Kailash And Ors. Etc. vs State Of M.P. on 9 January, 2007
JUDGMENT S.L. Kochar, J.
1.In Cr. A. 274/98, learned Sr. Advocate Shri Jaising with Ravi Verma was present for the appellants Hariram and Balarm. Initially this appeal was filed by Advocate Shri Ashish Gupta and he was appearing for all the four appellants. But, on 10-10-2006. he appeared and made statement that he has given no objection certificate for appearance on behalf of Hariram and Balaram to learned Sr. Advocate Shri Jaisingh and for appellants Kailash and Mohan to Sr. Advocate Shri Z.A. Khan and his associates. According to Advocate Shri Ashish Gupta, he is no more advocate in this appeal for the appellants and also has no instructions. This is the appeal of the year 1998 and appellants Kailash and Mohan are in jail since last more than eight years. The appeal is being, listed for, final hearing from 1-9-2006. It was listed in weekly list as well in the daily cause list in the last week and on 25-9-2006, 26-9-2006, 27-9-2006, 28-9-2006. On the prayer of the counsel for the parties, this appeal along with connected Criminal Appeals No. 311 / 98, 312/98 and 401/98 were adjourtied to 29-9-2006. Again on 9-10-2006, these appeals were adjounred and, listed on 10-10-2006 for final hearing. None appeared for the appellants Kailash and Mohan in Cr. A. No. 274/98. In Cr. A. No. 311/98 and 312/ 98. learned Sr. Advocate Shri Jaisingh was present with Shri Ravi Verma. In Cr. A. No, 401/98, for three appellants none was present. The appellants are on bail and are not present in the court. On previsous dates, all these four appeals were adjourned mainly on the ground that the counsel for the appellants in Cr. A. No, 401/98 Shri K.K. Oupta was sick and this fact was apprised to this Court by learned Sr. Advocate Shri Jaising, therefore, all these four connected appeals were adjourned and fixed for 10-10-2008 for final arguments, On 10-10-2006 none appeared in Cr. A. No. 401/98, here-fore, in view of the Supreme Court Judgments in the case of Benisingh v. State ; Kishansingh v. State of U.P. as well as the Division Bench Judgment of this Court reported in 2004 (3) MPLJ 105 the appeal of the appellants Kailash and Mohan (Cr. A. No. 274/98) and Cr. A.No. 401/98 have been heard in the absence of counsel for the appellants, on merits. This Court has been assisted effectively in all these appeals by learned Sr. Advocate Shri Jaisingh as well as Shri Girish Desai, Dy, Advocate General.
2. The 'aforesaid four appeals arise out of one and the same judgment dated 29-1-1998, passed in Sessions Trial No. 407/92 by the learned First Addl. Sessions Judge, Indore thereby finding the appellants guilty of the offence punishable under Section 302/149 Indian Penal Code on two counts, 324/149 Indian Penal Code and Section 148 of IPC, convicted them accordingly and sentenced each of them to suffer imprisonment for life and fine of Rs. 500/- on each count and to suffer R. I. for one year respectively. In default of payment of fine to suffer additional R. I. for three months.
3. In total, ten accused persons were prosecuted and out of them accused Ramesh died during the course of trial. After conviction, the present appellant Kailash, Balaram, Mohanlal and Hariram preferred Cr. A. No. 274/98, Mangilal preferred Cr. A. No. 311/98. Satyanarayan preferred Cr. A. No. 312/98 and Babulal, Vikram and Mukesh preferred Cr. A. No. 401/98. Since all the aforesaid appeals arise out of one and the same judgment, therefore, they are being decided by this common judgment.
4. Briefly stated the facts of the prosecution case as unfolded before the trial Court are that on 23-1 -1991, Shantilal Jain of village Banedia informed Police Depalpur on telephone that in the village rioting has taken place, After recording this information in Roznamcha, Police went to the village Banedia where the complainant Bismilla Bi got recorded the Dehati Nalishi Ex. P/38 to the effect that she, herself and her sons Kalu, Bhoora, Jamila, Rabiya and Nagma were bringing the graft loaded in a bullock cart and when they reached in front of village School, at about 6.15 p.m., all the accused persons armed with Axe. Sword and Lathi etc. came there. Accused Hariram had come there on a motor cycle. All of them Jointly attacked on Bhoora and Kalu. Bhoora was the cart man and Kalu was following the cart on a bicycle. When the complainant requested not to assault Kalu and Bhoora, accused Babu assaulted her also by Axe causing injuries. As a result of causing injuries by the accused persons Kalu succumbed on the spot. Thereafter, the accused persons followed Bhodra and after assaulting him by weapons also done him to death. Police registered the offence as Crime No. 220/91 under Sections 307, 302, 147, 148 and 149 Indian Penal Code. The FIR is Ex. P/39. After inquest, the dead bodies were sent to the hospital for postmortem examination and the injured was sent for medical examination and treatment. After arrest of the accused persons at their instance, weapons were recovered and seized. The P. M. reports of Kalu and Bhoora are Ex. P/26 and P/27 respectively.,The injuries report of Kalu is Ex. P/28 and that of Bismilla Bi is Ex. P/31. The spot map prepared by the police is Ex. P/44. The. FSL report is Ex. P/50 and the Serologist report is Ex. P/51-A. After due investigation, the accused persons were charge sheeted.
5. The appellants denied the charges and claimed trial. They pleaded that they have been falsely implicated. They did not examine any witness in defence. However, in defence, they adduced the certified copies of three documents. After recording the statements of the prosecution witnesses and hearing both the parties, the learned trial Court convicted and sentenced the appellants as indicated hereinabove.
6. We have heard learned Counsel for the parties and gone through the entire record carefully.
Learned Sr. Advocate Shri Jaisingh has submitted that though the author of the Dehati Nalishi Ex. P/38 named Bismilla Bi could not be examined in the Court because of her death during the course of trial. But the contents of the Dehati Nalishi Ex. P/38 (FIR Ex. P/39) can be looked into for judging the veracity of the prosecution case. Learned Counsel has placed reliance on the Supreme Court judgment rendered in the case of Ramkumar Pande v. State of M.P. A1R 1978 SC 1028 : 1975 Cri LJ 870. According to the Dehati Nalishi the appellant Babulal alone was having the Axe in his possession and rest of the accused persons were assaulting the deceased Kalu and Bhoora by lathis. The name of the appellant Hariram (Cr. A. No. 274/98) is not mentioned in the Dehiati Nalishi. He has further urged that Dehati Nalishi (Ex. P/38) and the statement of Bismilla Bi (Ex. D/3) recorded as pet provision under Sections 154 and 161 of the Cr. P.C. respectively, were proved by PW-24 SHO Navalsingh Yadav, are clearly showing that improvements have been done in the case diary statement of Bismilla Bi vide Ex. D/3. He has also submitted that after the postmortem examination of both the deceased Kalu and Bhoora by PW-11 Dr. S.W. Kelkar, the statements of eye witnesses recorded Just to suit the medical, evidence and that the FIR and the eye witnesses account are contradictory to the medical evidence. He has further sub-mitted that the independent witnesses were not examined though present, and the prosecution failed to prove compliance of the provision of Section 157 of the Cr. P.C. regarding sending of the copy of the FIR to the concerned Magistrate and that eye witness' PW-18 Jamila has not named the appellant Balaram, Hariram and Mangilal in her statement. The witness PW-19 Rabiya has named Hariram and Mangilal about causing the injuries to the deceased by Lathi. This is not believable that PW-16 Nagma and PW-18 Jamila would go to work as labourer iri the field of Pw-20 Bahadar, father of PW-16 Nagma. Ex. P/25 was the First Information Report registered on the basis of the Dehati Nalishi Ex. D/4 and on Ex. D/4, Crime No. 221/91 is mentioned and how it could be mentioned has not been explained by the ascribe of this document Ex. P/24 Navalsingh Yadav SHO. This shows that the Dehati Nalishi and the FIR of this case vide Ex. P/38 and P/39 as well as Dehati Nalishi of Cr. No. 221/91 and its FIR Ex. P/25 were recorded in ante date and time in the Police Station. On all these premises according to the learned Counsel for the appellants, the conviction of the appellants is not sustainable.
7. To cobat with, the learned Dr. Advocate General submitted as follows:
In this instant case, the FIR was lodged by Bismilla Bi who could not be examined because she died during the course of pendency of trial. Therefore, the contents of the FIR Dehati Nalishi Ex. P/38 cannot be looked into. He placed reliance on the Supreme Court judgment in the case of Harkiratsingh v. State of Punjab . He also cited Supreme Court judgment rendered in the case of Radheshyam v. State of Haryana JT 2001 (3) SCC 635 regarding mention of crime number on Dehati Nalishi of other case vide Ex. D/4. In sum and substance, he supported the impugned judgment and finding arrived at by the learned trial Court.
The crucial question for determination before us is whether the contents of the Dehati/FIR Ex. P/38 and P/39 can be looked into for judging the veracity of the prosecution case or not? In the case of Ramkumar Pandey 1975 Cri LJ 870 (supra), the Supreme Court in para 9 has observed thus -
No doubt, an FIR is a previous statement which can, strictly speaking, be only used to corroborate or contradict the maker of it. But. in this case, it had been made by the father of the murdered boy to whom, all the important facts of the occurrence, so far as they were known upto 9.15 p.m. on 23-3-1970, were bound to have been communicated. If his daughters had seen the appellants inflicting a blow on Haribinder Singh the father would certainly have mentioned in the FIR. We think that omission of such important facts, affecting the probabilities of the case, are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case.
The aforesaid observation is to be considered in the light of the facts and circumstances of the individual case. In Ramkumar Pande's case, the author of the FIR father of the deceased was examined in the Court. He proved the contents of the FIR and in the light of the statement of this witness as well as the statements of other eye witnesses, the close relations of the deceased and daughters of the complainant Uttamsingh, the Supreme Court has considered the important omission in the FIR lodged by the father of the murdered boy. The incident occurred at 5.00 p.m., FIR whereof was lodged at 9.15 p.m. and the analogy was drawn by the Supreme Court that if the appellant Ramkumar was the author of one of the injuries sustained by the deceased Harbinder Singh and if his daughters had seen the appellant causing knife blow, would have certainly disclosed this fact to their father who lodged the report about the incident. In this backdrop the omission of non-mention of specific overt act causing stab injury to deceased by accused Ramkumar in the First Information Report was considered by the Supreme Court and held that the omission of important facts in the FIR would be relevant. It is not the ratio-decidendi in the case of Ramkumar Pande (supra) that the contents of the FIR can be looked into in each and every case even the maker of the FIR is not examined because of death or other reasons. It is manifest that the Supreme Court has not considered the omission in the FIR simpliciter as important fact, but on the basis of the probabilities given finding that if daughters of the lodger of the FIR really seen the whole incident and had meeting with their father before lodging the FIR would have not failed to mention the important and material fact to their father and in the light of this Supreme Court has held that the daughters of the complainant had not seen the accused appellant Ramkumar Pande causing knife injury to the deceased.
8. In the case at hand, the facts are altogether different. The FIR was lodged by eye witness Bismilla Bi, mother of the deceased Kalu and she was not examined in the Court because of her death. Under these circumstances, the contents of the FIR cannot be looked into, because the appellants had no opportunity to cross-examine, this witness. Whereas in the case of Ramkumar Pande (supra) the witness who lodged the FIR was examined and cross examined by the accused persons. Thereafter, the Supreme Court in the facts and circumstances of the case, considered the above mentioned probabilities and held that the same were relevant under Section 11 of the Evidence Act for judging the veracity of the prosecution case.
9. In case of Randhir Singh v. State of M.P. 1979-II M.P. Weekly Note No. 82 Page 113, the learned single Judge of this High Court had an occasion to consider the question of use of FIR in absence of examination of its author in the Court and held as under:
The question is how far the aforesaid reasoning is justified either on facts or in law. It is an admitted fact that the deceased did not die because of the injuries received by him in this incident. Accordingly, the statement made by him in the First Information Report (Ex. P/26) cannot be said to be a statement of a deceased person either as to the cause of his death or as to any of the circumstances resulting in his death. When this report was not admissible as the statement of a deceased under Section 32 of the Evidence Act the learned trial Judge could not rely upon it as a substantive piece of evidence, or for corroborating the evidence given by the other prosecution witnesses in the trial Court, the reason being that the deceased Raghunath was not available to the accused for cross examination and, if that statement in the First Information Report was not admissible under Section 32 or any other section of the Evidence Act, then the same could not be used against the accused for any purpose whatsoever.
The learned trial Judge also erred in treating this statement in the First Information Report (Ex. P/26) as substantive evidence. As First Information Report can be used either to corroborate or contradict the maker of it, in case he is examined. If the maker of the report is not available for examination and the party against whom the report is to be used as evidence has no opportunity to cross examine him, then the same cannot be used for any purpose much less for the purpose of treating it either as substantive or as corroborative evidence.
In the case of Kishanchand v. State of Rajasthan the Supreme Court has considered the question of evidentiary value of the FIR when its author/complainant died before commencement of the trial and held as under-
It was next contended that once Rajendra Dutt is not available for evidence there is no evidence as to the demand of bribe on Nov. 20, 1974, and it is not open to the court to spell out the demand from the contents of Ex. P/12. It is undoubtely true that the FIR lodged by him on Nov. 22, 1974. cannot be used as substantive evidence nor the contents of the report can be said to furnish testimony against the appellant. Such an FIR would not be covered by any of the clauses of Sections 32 and 33 of the Evidence Act and would not be admissible as substantive evidence. The question still remains whether there is any evidence of demand of bribe on Nov. 20, 1974, in this case. A fact may be proved either by direct testimony or by circumstantial evidence.
10. The Supreme Court in the case of Harkiratsingh 1997 Cri LJ 3954 (Ibid) in para 4 has reiterated the law and held that (Para 3):
In our considered view, the High Court was not justified in treating the statement allegedly made by Khairati Lal during inquest proceedings as substantive evidence in view of the embargo of Section 162 Cr. P.C. Equally unjustified was the High Court's reliance upon the comments of the FIR lodged by Walaiti Ram who, as stated earlier, could not be examined during the trial as he had died in the meantime. The contents of the FIR could have been used for the purpose of corroborating or contradicting Walaiti Ram if he had been examined but under no circumstances as a substantive piece of evidence.
11. The conviction of the appellants is mainly based on eye witnesses' account PW-16 Nagina, the sister-in-law of the deceased Bhoora, PW-18 Jamila and PW-19 Rabiya wife of deceased Bhoora. PW-18 Jamila appears to be an indepent eye witness whereas PW-16 Nagina and PW-19 Rabiya are the close relatives of the deceased. Therefore, they can be interested and partisan witnesses. The law in this regard is well settled that the statements of interested and partisan witnesses must be scrutinized with great care and caution. Their evidence cannot be thrown over the board merely because they are interested and partisan witnesses. The close relations of the deceased would never leave the real culprit, but at the same time, they are not immune to implicate innocent persons with real culprit. Indeed it is the onerous duty of the Court to separate the grain from the chaff.
12. Before appreciation of eye-witnesses' account, it is pertinent to mention here that the learned Counsel for the parties have not disputed the homicidal death of the deceased persons. Even otherwise in view of the evidence of the autopsy Surgeon PW-11 Dr. S. W. Kelkar, the deceased Kalu suffered 17 incised wounds, 7 abrasions and diffuse contusions on various parts of the body like hands, legs, head, chest/sternum. The doctor has proved the post-mortem report Ex. P/26. He found fractures of left and right tibia bones, left frontal bone, fracture of forehead and damage to brain underneath the bone, compressed fracture of left parietal bone with damage to brain matter, another fracture of left parietal bone, fracture of sternum bone and 4th, 5th rib bones meeting at the sternum because of which, right and left lungs were damaged. In the opinion of autopsy Surgeon the injuries on the person of deceased Kalu could be caused by sharp and hard as well as blunt and rough object. The deceased died because of shock due to profuse bleeding from underneath and, external injuries and injuries were sufficient to cause death.
13. The deceased Bhoora suffered eight, incised injuries and diffused contusions with scratches on chest. Underneath this injury, 6th, 7th and 8th ribs were fractured and damage to left lung. There was fracture of left humerus bone, fracture of left/back side of scalp, fracture of left occipital bone cut of left pinna with temporal bone and brain matter was visible. Fracture of left orbit. In his opinion all the injuries could be caused, by hard, sharp and blunt object. The deceased died because of shock due to excessive bleeding from head and fracture, of brain as well as other injuries. He proved P.M. report P/27.
14. Now we proceed to discuss the statements of all the three eye-witnesses. According to PW-16 Nagina she was knowing all the accused persons present in the Court. She was also knowing the deceased Kalu and Bhoora. On the date of incident, she along with her sister PW-19 Rabiya and witnesses PW-18 Jamila, Bismilla Bi (died during the course of trial and could not be examined) and the deceased Kalu and Bhoora were working as labourers in the field of her uncle Bahadar (PW-20). They cut the grass and in the evening at 6.00 p.m. were returning back to the village in the bullock cart loaded with grass and deceased Bhoora was the cartman. She and other witnesses were going with the bullock cart. When they reached near the school ground, the appellant-Hariya assaulted the deceased Kalu by Sword and Kailash had an Axe with him. All the other accused persons also joined the assault. Appellants-Mukesh, Satpal and Babu were having Swords, appellants Bala, Mohan and Mangiya were possessing Axes. They all assaulted the deceased. When Bismilla Bi, mother of deceased Kalu tried to save Kalu, she too was assaulted. She sustained injuries on her thigh, hands and other parts of the body. During this period the deceased Bhoora had reached on the square. He too was assaulted by the appellants-Hariya and Kailash. They abused filthily and also threatened t,his witness and PW-19 Rabiya. The inpident was witnessed by so many persons, but she could not remember thier names. The further, say of this witness is that both the deceased persons were done to death on the spot itsel. Accused persons rushed towards the witnesses to assault them but, they went ahead of the place of incident and reached to her uncle Bahadar, who proceeded for lodging the report. In cross-examination para-9 she admitted that the road was, a busy road and near the school residential houses, tea stalls and other stalls were situated and was a crowdy place. In para-,11, she deposed that when accused persons reached near the deceased, she was present near the wheel of the bullock cart. She denied the facts mentioned in her case diary statement Ex. D/1 that she along with Rabiya, Jamila and Bismilla Bi were ahead of the bullock cart. In the facts and circumstarices of this case, we do hot consider it to be a major and, material contradiction with her case diary statement Ex. D/1. She admitted that Bahadar is her father and Rabiya is her sister. In para-15, she denied the defence suggestion that her father was having illicit relation with Bismilla Bi and she was his keep. In para-16 she expressed her ignorance about presence of several persons in the village, Bahedia having their names Babulal, Balaram, Mangilal, Satyanarayan, Mukesh and Vikram. She was knowing the accused persons by names who made the assault.
15. The defence wanted to create doubt regarding identity of accused persons by asking; this question about presence of so many persons in the village having same name. But, in our view in the instant case, there is absolutely no dispute about identification of the appellants. They all are the residents of same village and this witness in para-1 has specifically deposed that she was knowing all the accused persons present in the Court as well as the deceased persons., In para-21, she corrected her version mentioned in para-2 and according to her the appellant-Hariya was having Lathi instead of a Sword and Babu was having Axe instead of Sword. Because of nervousness she committed the mistake, There are omissions in her case diary statement Ex. D/1 regarding specific overt act of Balaram and beating of Bismilla Bi on her thigh, hand and body as well as specific overt act of Hariya and Kailash to stop the deceased Bhoora and also assaulted to him. This witness has stated that she deposed every thing to the police. If these facts are not mentioned, she could not assign any reason. In para-26, she has admitted about recording of her statement by the police the same day in the night. She narrated specific overt act by Hariya causing injury by Lathi and Babu by Axe. In para-21, she has specifically stated that the incident was witnessed by so many persons, but she was not knowing the names of those persons and accused Ramesh, Mukesh, Babu, Hariya, kailash, Vikram, Mohan and Baliya were the persons who assaulted the deceased persons. On going through the entire statement of this witness, she attributed specific overt act against Hariya and Kailash assaulting the deceased Kalu as well as the deceased Bhoora and against other accused persons she has given general and omnibus statements. Except some minor omissions and contradictions about specific overt act, issue of threat and filthy, abuse, there are no material and important contradictions in her Court statement with her case diary statement Ex. D/1, She was interrogated by the police the same day immediately after arrival of the police in the village. Learned Counsel read out her statement para-26 in which she has denied the defence suggestion, that she was not on the spot and speaking against the accused persons as per tutoring to her by Bahadar Khan. She has also stated that her father went to Police Station, Depalpur for lodging the report immediately after her disclosure to him about the incident, but she could not say about the mean by which her father went to the Police Station. She saw him going only up to the temple. On the basis of this statement, the learned Counsel has submitted that the report lodged by her father has not been filed by the prosecution and according to this witness, the statement of Jamila was also recorded the same day along with her, but as shown Jamila's statement Ex. D/4 was recorded on 25-9-91 after one day of the incident. Since this witness has not stated that her father lodged the report at the police station and her father Bahadar (PW-20) has also not stated about lodging of the report at the Police Station by him. The question of suppression of his report would not arise.
16. PW-20 Bahadar Khan has specifically stated in paras 2 and 3 that on the date of incident, PW-16 Nagiha and PW-19 Rabiya, deceased witness Bismilla Bi, PW-18 Jamila and deceased Bhoora had gone to cut the grass in his field known as Kundiwala Khet. In the evening the deceased Kalu also went to the same field by a bicycle. His daughters Rabiya and Nagina PW-19 and" PW-16 respectively returned back to the house in the evening at about 6.00 p.m. and informed him about commission of murder of Bhoora and Kalu by the appellants and beating to Bismilla Bi. He became nervous and was about to go to the Police Station, but was stopped by the villagers. Up to that time, police had reached in the village. He did not go to the Police Station for lodging the report because of danger to his life. The statement of this witness is corroborating the version of Rabiya and Nagina about witnessing the incident and disclosing the same to this witness Bahadar Khan. In para 2 of cross-examination, this witness expressed his ignorance about pendency of murder case against his cousin brothers Amid and Karim killing Murarilal and pendency of murder case against his son-in-law Abbas causing death of Ramesh. He specifically denied that his son-in-law Abbas and daughters Nagina and Rabiya were residing with him. In para-8, the say of this witness is that Shantilal (PW-1) sent the telephonic message to the Police. Thereafter the police party reached in the village. PW-1 Shantilal Jain, though denied this fact in examination-in-chief, but in cross-examination para 2 admitted this fact. Learned Counsel for the defence has attacked the statement of Bahadar Khan mainly on the ground of delay, in recording of his statement, of two months. This witness has in para 10 denied this fact. According to him. his statement was recorded on the same day. In para-12, he has deposed that on the next day, in the forest one boy was murdered, report whereof was lodged by him and his son was murdered after his appearance as a witness in the Court. Looking to the eye-witnesses' account and the statement of PW-20 Bahadar Khan, it appears that there was bad blood between the two communities. Khati and Muslim both the groups were facing prosecution for commission of murder of member of opposite group.
17. PW-24 Station House Officer Naval Singh Yadav in para-1 has admitted that on the next day of the incident there was murder of one Mansoor of the same village and he also investigated that case and prior to the date of incident of instant case, one Murari was murdered. The investigation of that case was done by Assistant Sub-Inspector. In para-12, he admitted about receiving information on telephone by PW-1 Shantilal Jain. According to this witness PW-20 Bahadar Khan did not meet him on reaching in the village near Jain Mandir and he recorded his statement. In para 20, this witness has admitted that in the Dehati Nalishi Ex. P/38, lodged by deceased witness Bismilla Bi only the appellant-Babu was shown to be present having Axe and other accused were having Lathis and he also proved the statement Ex. D/3 of Bismilla Bi portion marked "A to A" recorded as per provision under Section 161 of the Cr. P.C. It would be apposite to mention here that the learned trial Court should have not permitted the defence counsel to question this witness regarding contents of Dehati Nalishi Ex. P/38 as well as the case diary statement Ex. D/3 of Bismilla Bi because it was lodged by Bismilla Bi and she died before recording of her statement in the Court. Therefore, the Dehati Nalishi Ex. P/38 could not be considered in favour of either party as discussed hereinabove. The learned trial Court committed grave error of law to seek corroboration to the testimony of eye-witnesses by Dehati Nalishi Ex. P/38 and P/ 39 in para 38 of the impugned judgment.
18. The next eye-witness PW-18 Jamila has deposed that on the date of incident, she along with Bismilla Bi PW-16 Nagtna and PW-19 Rabiya were returning back after cutting the grass from the field of Bahadar Khan. The cart man deceased Bhoora was coming with the cart loaded with grass. They crossed the hotel of one Keer. At about 6.00 p.m. the appellants-Kailash, Babu Bhai having Axe. appellant-Satya Bhai, Mukesh having Sword, appellant-Ramesh having Lathi and appellants-Vikram and Mohan carrying Axe in total ten accused persons reached from the side of the school. At that moment deceased Kalu was coming on bicycle and he was attacked by all the accused persons. His mother Bismilla Bi requested them with folded hands not to assault her son. The first blow of Axe was wielded by appellant-Kailash causing injury on head, thereafter Babu caused injury by Axe on shoulder resulting into fall of deceased Kalu. Thereafter, all the appellants started assaulting him. She witnessed the incident from some distance because of which she could not state specific overt act of all the accused persons. The further say of this witness is that when deceased Bhoora reached in front of the shop of one Amolak, he too was attacked by the appellants and she along with Nagina and Rabiya because of fear proceeded from the place of the incident. Bismilla Bi stayed there to save her son on the spot. She was also assaulted. In para-4, this witness has deposed that they all four were returning after working as labour. At that time, the appellants assaulted-Bhoora and Kalu because of previous incident in which their brother was assaulted by the sons of one Razzaque.
19. In cross-examination up to para 15, the questions were put about the geography of the place of incident. Nothing substantial is available in these paragraphs. In para 17, she expressed her ignorance about presence of some more persons having their names Balu Chaudhary, Mangilal, Babu Singh, Vikram, Mukesh, Satyanarayan, Babu Patel and Hariram. She also expressed her ignorance regarding murder of Murari, who were the persons involved in that case, who were Hamid and Karim and whether the appellants were having enmity with the deceased persons or not. She also expressed her ignorance about murder of Ramesh Patel. She has also stated that after the incident, they left their houses and she was not knowing since how long duration her husband was residing in the village Banediya. She also deposed that she was not knowing as to how many brothers Murari had and the brothers of the appellants and names of their father, but she stated that all the appellants were residing separate. She also expressed her ignorance about number of houses of Khati Community. She admitted that in village Banediya there are 50 to 60 houses of Muslims but she was not knowing the total population of that village.
20. In para-18 she has stated that after the incident, she went to Bahadar (PW-20), stayed there for five months and thereafter went to her house. The police party reached in the village at 7.00 p.m. and also recorded her statement. She denied recording of her statement after five days. But admitted that she was interrogated twice, in the morning and in the evening. In para 13, she has refuted the defence suggestion that she gave false evidence at the instance of Bahadar Seth. This witness is not related to deceased persons as well as PW-16 Nagina and PW-19 Rabiya and nothing substantial has come in her cross-examination which may corrode her testimony. Even then, we have to visualize her statement with great care and caution being a member of same community to whom the deceased persons belonged and the fact that she was doing the labour work in the field of Bahadur (PW-20).
21. PW-24 Navalsingh Yadav SHO denied recording statement of Jamila on 23-5-91. It appears that in para 30 because of confusion or typing mistake the month of incident was mentioned as "MAY" instead of September. This witness has admitted that he recorded her statement on 25-9-91 and denied about changing of date by doing overwriting converting the date 28-9-91 to 25-9-91.
22. Recently the Supreme Court in the case of State of Andhra Pradesh v. Rayappa has ruled that merely because the witnesses were related to the deceased, they cannot be said to be interested witnesses and on that ground alone, their testimony cannot be rejected. In view of the reluctance of general public to be a witness, a close relative is the only natural witness and the only requirement is that the testimony of such witness should be examined cautiously by the Court. It is observed by the Supreme Court in the backdrop of this case that "two murders having taken place in a single day, there was terror in public. In such a situation, atmosphere was surcharged with tension and psychosis, it was not expected of any witness to depose about the incident. Therefore, non-examination of independent witness in such situation, would be no ground to discard the otherwise creditworthy testimony of the eye-witnesses and minor discrepancies which do not materially affect the prosecution case, do not create any infirmity,
23. On culling up the statements of all the three eye-witnesses, medical evidence as well as the statement of PW-20 Bahadar we are of the opinion that the general and omnibus statements given by all the three eye-witnesses could not be relied upon for fastening the liability of commission of murder of two persons namely Kalu and Bhoora. Though PW-16 Nagina and PW-19 Rabiya being sister-in-law and wife of Bhoora respectively would not leave the real culprit. At the same time, they would not be immune from implicating the innocent persons along with the real culprit. PW-18 Jamila was also working under PW-20 Bahadur, the father-in-law of deceased Bhoora. Therefore, she could also be influenced. These kinds of conditions have been considered by the Supreme Court in the case of Budhwa v. State of M.P. . In para 4 the Supreme Court observed thus-
That the conviction of the appellants-accused was principally based on the evidence of the deceased's mother and sister. Though their evidence is not to be discarded as interested, the necessary caution has to be observed in accepting the evidence of these witnesses. It is an accepted proposition that in the case of group rivalries and enmities, there is a general tendency to rope in as many persons as possible as having participated in the assault. The Courts have, therefore, to be very careful and if after a close scrutiny of the evidence, the reasonable doubt arises with regard to the participation of any of those who have been roped in, the Court would be obliged to give the benefit of doubt to them.
24. Applying the aforesaid test laid down by the Apex Court, with close and minute scrutiny of all the three eye-witnesses coupled with medical evidence, PW-16 Nagina described specific overt act of causing injuries to deceased Bhoora and Kalu by appellant-Hariya and Kailash by Lathi and Axe (See para-2 read with 21), PW-18 Jamila named specifically against appellant-Kailash causing injury by Axe on the head of deceased Kalu and appellant. Babu alias Babulal by Axe on shoulder of deceased Kalu (See para-2) and PW-19 eye-witness Rabiya also stated against appellant-Kailash causing injuries to deceased Kalu by Axe and appellant-Babu /Babulal by Axe on the head and shoulder/upper arm. According to medical evidence of PW-11 Dr. S.W. Kelkar the deceased Kalu suffered 17 incised wounds, abrasions and defuse contusions caused by hard, sharp, blunt and rough object and deceased Bhoora also suffered 8 incised wounds, defuse contusions with scratches caused by hard, sharp and blunt object.
25. The prosecution has examined independent witness PW-1 Shantilal, PW-3 Nandkishore and PW-14 Manohar and all these witnesses have turned hostile whereas PW-4 Hakim Singh A.S.I proved the entry in daily diary No. 920 about sending of telephonic message by PW-1 Shantilal about the incident occurred in village Banedia. This shows that because of group rivalry and communal feelings witnesses were not ready, to come forward and some witnesses appeared before the Investigating Officer, but ultimately turned hostile in the Court. Hence, it could not be said that though the independent witnesses, were available but not examined by the prosecution.
26. Now in the wake of the aforesaid legal and factual discussion, the conviction and sentence of all the appellants under Sections 302/149 on two counts, 323/149, 148 and 147 of the Indian Penal Code are hereby set aside. Therefore, the appellants Mangilal, Mukesh, Satyanarayan, Balaram, Mohanlal and Vikram are acquitted from the charges under Sections 302/149 (on two counts), 323/149, 148 and 147, Indian Penal Code. Appellant-Mohanlal is in jail. He is directed to be released forthwith if not required in any other criminal case. Appellants-Mangilal, Mukesh, Satyanarayan, Balaram and Vikram are on bail. Their bail and surety bonds are discharged. Instead, the appellants-Hariya alias Hariram and Kailash (in Cr. A. No. 274/98), and appellant-Babu alias Babulal (in Cr. A. No. 401/ 98) are convicted under Section 302/34 of the Indian Penal Code on two counts and each is sentenced to imprisonment for life. The appellants-Kailash, BabuJal and Hariram are on bail. They shall surrender to their bail bonds before the trial Court on 5-2-2007 and the trial Court is, directed to send them to jail custody for serving out the remainder part of their sentences. It is settled law that accused persons charged under Section 302 of IPC with the aid of Section 149 of IPC can be convicted under Section 302 read with Section 34 of the IPC. [See Hamlet alias Sasi and Ors. v. State of Kerala . Since Bismilla Bi was not examined, we do not consider it fit to convict the appellants for causing her simple injuries. The aforesaid appeals stand disposed of in terms indicated hereinabove. Office is directed to send a copy of this judgment along with the record to the trial Court immediately.
27. The original judgment be placed in the record of Cr. A. 274/98 and a copy thereof be placed each in the record of Cr. A. No. 311/98, Cr. A. 312/98 and Cr. A. No. 401/98.