Madhya Pradesh High Court
Balusingh S/O Nathu Singh And Ors. vs State Of Madhya Pradesh on 2 November, 2006
JUDGMENT S.L. Kochar, J.
1. The appellants have filed this appeal against the judgment and order dated 11-8-1997 passed in S. T. No. 45/1997 by learned V ASJ, Ujjain whereby convicted the appellants under Section 302/34 of the I. P. C. and sentenced to undergo R. I. for life and fine of Rs. 2,000/- to each of the appellants and in default of payment of fine to undergo R. I. for two months.
2. The prosecution case multum in parvo as disclosed before the trial Court is that Shivlal (P. W. 8) was residing with his maternal uncle deceased Nathu and performing agricultural work. Originally he was resident of village Kakhdel, P. S. Badod, District Shajapur. On 19-10-1996 in the night at 8.30 p.m. when he reached with a loaded bullock cart at the house of his maternal uncle, his maternal aunt Sitabai (PW 2) told him that his uncle Nathu did not return from village Old Bahadurpura where he had gone to reap soyabeen crop on daily wages as labour. On this information, Shivlal (PW 8) proceeded in search of his uncle Nathu and when going towards Old Bahadurpura on the road he saw that appellants and acquitted co-accused Shankarlal were assaulting his uncle Nathu at some distance of school. Shivlal raised cry that accused persons were assaulting his maternal uncle but nobody came over there and accused persons after assault went away. Nathu was lying on the ground having injuries on his head, right hand and other parts of the body. There was bleeding from head injury. Deceased was unconscious. This witness lifted deceased and put him on his shoulder, thereafter came to his house and from the house proceeded in bullock cart along with Durla (PW 3), Bherubalai and wife of deceased Sitabai (PW 2) for the purpose of treatment to Jharda. On the way, Nathu succumbed to the injuries. Witness Shivlal and his companions returned back with dead body in a bullock cart to their house and on the next day i.e. on 20th October, 1996 at 12.30 p.m. this witness lodged the FIR in police station, Jharda recorded by SHO S. S. Dabar (PW 7). In the report, the reason for delay has been mentioned at Column No. 8 that because of night hours and short of means he reached to the police station on foot. On the report, police registered the Crime No. 88/1996 (Ex. P. 13) under Sections 302/147 and 148 of the I. P. C. In the FIR distance of police station is shown 14 km. from the place of incident i.e. village Naya Bahadurpura.
3. The police also recorded murg intimation report and prepared inquest report, thereafter sent the dead body for postmortem examination which was performed by Dr. H. S. Goyal (PW 1) on 21 -10- 1996 at 8.30 a.m. whereas dead body was received by the hospital on 20-10-1996 at 7.00 p.m. Postmortem report is Ex. P. 1. Accused persons were arrested on different dates and on their disclosure statements axe and lathis were seized. From the place of incident, blood stained earth and controlled earth were also seized. The seized articles were sent for examination to FSL. Its report is Ex. P. 26. After due investigation, five accused persons were charge sheeted.
4. The accused persons abjured their guilt. According to them, they were falsely implicated because of enmity. Therefore, they were put on trial. They have not examined any witness in defence whereas prosecution has examined nine witnesses and adduced 26 documents in evidence. The learned trial Court, found the appellants guilty for commission of murder of deceased Nathu, hence convicted them as mentioned hereinabove. The fifth accused Shankarlal has been acquitted.
5. We have heard the learned Counsel for parties and also perused the entire record carefully.
6. The impugned judgment of conviction of four appellants is based on the solitary testimony of eye witness Shivlal (PW 8), the nephew of deceased (sister's son) who was not permanent resident of village Naya Bahadurpura where the deceased and his wife Sitabai (PW 2) were residing. According to the prosecution case, this witness started living with his maternal-uncle Nathu since five months from the date of incident and doing agricultural work. The moot question for us to determine whether the solitary testimony of Shivalal (PW 8) is worth for placing implicit reliance or not.
7. The say of this witness is that on the date of incident, after reaping soyabeen crop in the night at 8.00 p.m. he returned back to the house. His maternal aunt Sitabai (PW 2), wife of deceased Nathu asked him to go to Old Bahadurpura because deceased Nathu did not return to the house who went to Old Bahadurpura for working as labour. This witness proceeded from his house and when reached near school he saw that four accused persons namely Padamsingh, Nagusingh, Onkar and Babusingh were assaulting the deceased. Apart from these four persons, none else was present there. The further say of this witness is that Padamsingh was having axe. Rest three appellants were having lathi. In the lathi of Balusingh the "Saam" (lathi having iron cap on one end) was present. This witness raised cry but nobody came to help him. The appellants, after beating, ran away from the scene of occurrence and he lifted the deceased and returned back to house carrying him on his shoulder. Deceased was suffering from axe and lathi injuries on head, hands, legs, ribs and other parts of the body. Because of injury, deceased died. After returning back to house, he proceeded in a bullock cart with deceased for the purposes of treatment to village Jharda where the hospital was available but on the way deceased died. Therefore, they returned back to their village. He was accompanied by his maternal aunt Sitabai (PW 2), Bheru Balai (PW 5) and Durla (PW 3). According to this witness, appellant Padamsingh cut the irrigation pipe of Nathusingh because of which they were having quarrel. Both were pacified by the villagers, therefore, report was not lodged and because of this incident appellants committed murder of deceased. This witness proved FIR (Ex. P. 13) and spot map (Ex. P. 16).
8. In cross examination, he has admitted that the school was situated from their house at the distance of 500 ft. and deceased was being beaten at distance of 200 ft. from the school. He was watching the incident at the distance of 15-20 ft. Though, he raised cry but nobody came to rescue them. He has also admitted that after his cry accused persons did not attempt or try to assault him. The further say of this witness is that deceased was assaulted by axe, by appellant Padamsingh and Padamsingh dealt two axe blows on the head. He was confronted with his FIR (Ex. P. 13) and statement (Ex. D. 1) wherein there is no mention of use of axe and causing two blows by appellant Padamsingh. For this material and important omission which amounts to contradiction, he failed to assign cogent and reliable reason. In cross examination, para 21, he has stated that on the next day in the morning at 6.00 a.m he contacted village choukidar and thereafter proceeded for lodging the report to the police station.
9. For delay in lodging the report, he assigned reason in this para that because of fear he did not go to police station in the night. His this explanation does not sound well. In the night, after bringing the deceased at his house this witness along with wife of deceased and two villagers named Durla (PW 3) and Bheru (PW 5) already proceeded for village Jharda for treatment of the deceased and deceased died on the way. Under such situation, there was no need to return back to village. He should have proceeded in the bullock cart in the company of those persons to Jharda where the police station was also situated. The FIR was lodged on the next day i.e. 20-10-1996 at 12.30 p.m. For this delay, no reasonable and plausible explanation has been given by this witness. In the FIR, at column No. 8, the reason for delay is mentioned that because of short of means and night hours he came to police station on foot. This explanation is just contrary to the explanation given by this witness in Court, para 21. This witness has also modulated his version in Court regarding use of axe by appellant Padamsingh and it appears that on the next day, after lodging of the FIR when he came to know that deceased suffered incised injury on head he changed his version to bring the prosecution case in one line. There is further contradiction in his statement with the medical evidence. In postmortem report Dr. H. S. Goyal (PW 1) found only one incised injury on the head of deceased whereas this witness, in para 10 has specifically stated that Padamsingh dealt two axe blows on the head of deceased. In para 10, this witness has narrated an unbelievable story i.e. first of all appellant Padamsingh dealt two axe blows on the head of his uncle and ran away thereafter appellant Nagu inflicted 15-20 lathis blows on the person of deceased and he also ran away then appellant Balusingh in his turn dealt 5-6 blows by Saamvali lathi to deceased and he also ran away. Lastly, appellant Onkar alone assaulted 8-9 lathi blows on the shoulder and hand of deceased because of which hand was broken and Onkar also ran away. He was also contradicted with the FIR as well as case diary statement (Ex. D. 1) about use of lathi by appellant Padam but this witness denied to mention this fact in the FIR.
10-11. In para 15 Shivlal (PW 8) has stated that when he brought the deceased on his shoulder at his house he was nervous and his whole clothes were stained with blood and all those clothes he changed after performance of funeral. But these clothes were not seized by the Investigating Officer' S. S. Dabar (PW 7). This version of eye witness Shivlal does not convince us to accept that he was continuously wearing blood stained clothes up to third day and during this period he had meeting with the police several times and police would not ask him about blood stained clothes and also would not seize the same. Supreme Court in the case of State of Rajasthan v. Shri Chiranjilal 2001 (5) JT (SC) 259 has considered this aspect and disbelieved the version of the eye witness. In this case, Supreme Court observed as under in part of para five:
Similarly, the evidence of PW 5 was not accepted by the High Court based on his own statement wherein he had stated that he and PW-4 had carried the injured, who subsequently died, to their house when he was still bleeding. The prosecution had failed to produce the blood-stained clothes of these witnesses, therefore, that also caused a substantial doubt in the case of the prosecution.
In the case of Badri v. State of Rajasthan , the Supreme Court has observed in para 18 as under:
Further, there was difference of opinion between the two Medical Officers examined in the case. The trial Court refused to accept the evidence of the first doctor and summoned as a Court witness another doctor who disagreed with the previous one and gave evidence before the Court after perusing the postmortem report. The trial Court has noted that Patram was "compelled to change his version a little" because of doctor's opinion after the postmortem examination was held on the spot the following morning. If a witness, who is the only witness against the accused to prove a serious charge of murder, can modulate his evidence to suit a particular prosecution theory for the deliberate purpose of securing a conviction, such a witness cannot be considered as a reliable person and no conviction can be based on his sole testimony.
12. In the instant case, the solitary eye witness, the close relation to the deceased has changed his version in Court regarding use of axe by appellant Padam because the postmortem report was showing incised injury on the head of the deceased.
13. In the light of aforesaid legal and factual discussion, we are of the considered view that the solitary testimony of eye witness Shivlal (PW 8) is not worthy for placing reliance for maintaining the conviction of four appellants. It is well settled law that quality of evidence is required and not the quantity. On the basis of evidence of solitary eye witness, conviction can be based but the Court must satisfy with the testimony of the solitary eye witness and if it stand on test, the conviction can be maintained. As in the instant case, the witness Shivlal (PW 8) does not stand on test to be a fully reliable witness, the appeal of the appellants is allowed. Conviction and sentence passed by the learned trial Court by the impugned judgment are hereby set aside. Appellants are on bail. Their bail bond and surety bond stand discharged.