Madhya Pradesh High Court
Ram Sumiran & Ors. vs The State Of M.P. on 26 September, 2017
Bench: Hemant Gupta, Vijay Kumar Shukla
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HIGH COURT OF MADHYA PRADESH : JABALPUR
Cr. A. No.924/2005
Ram Sumiran Kevat
and others ................... Appellants
Vs.
The State of Madhya Pradesh ............... Respondent
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Division Bench
Hon'ble Shri Justice Hemant Gupta, Chief Justice
Hon'ble Shri Justice Vijay Kumar Shukla, J.
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Shri Rakesh Jain, counsel for Appellant No.1.
Smt. Aparna Singh, counsel for Appellants No.5 and 6.
Ms. Namrata Agrawal, Govt. Advocate for the respondent/State.
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Whether approved for reporting - No
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JUDGMENT
(26.9.2017) Per Hemant Gupta, Chief Justice The challenge in the present appeal is to the judgment passed by the learned Additional Sessions Judge, Sidhi, on 1.4.2005 in Sessions Trial No.137/2004 convicting the appellants for an offence under Sections 302 read with Section 149 and Section 148 of I.P.C. and vide separate order sentencing them to life imprisonment with fine of Rs.300/-.
02. The prosecution case was set in motion on the statement of Motilal Yadav PW-1 made to ASI - R. N. Mishra PW-12 on 1.7.2004 at about 4:30 a.m. The statement is that his cousin Gorelal Yadav has a fish
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pond in Kevatan Mohalla. But, some people belonging to Kevat caste resident of Kukran Mohalla used to steal fish. On 30.6.2004 at about 8:00 p.m. Gorelal went towards the pond to safeguard fish. In the meantime, Gorelal raised alarm that he is being beaten by the people belonging to Kevat caste. On hearing the alarm raised by Gorelal, he alongwith his family members such as Munna Yadav, Bhole Yadav, Bhai Lal, Bhaiya Lal Yadav reached to the place of occurrence, where they saw Ram Sumiran Kevat, Ram Karan Kevat, Motilal Kevat, Ramcharan Kevat, Munna Lala Kevat and Rampal Kevat were giving beatings with Lathi's, Danda and Ballam to Gorelal. They were abusing him and saying that the pond is not yours exclusively. When Munna Yadav and Bhola Yadav intervened, they were also given beatings. Gorelal Yadav was given Ballam blow by Ramkaran Kevat, whereas Ram Sumiran Kevat had given Danda blow. Gorelal was dragged into the house of Rampal and was beaten, due to which he succumbed and the dead body is lying in the house. At that time Bhola Yadav, Bhailal, Bhaiyalal and Munnalal were present. On the basis of such report F.I.R. Ex.P-2 was lodged. The investigations were initiated by PW-12 R. N. Mishra, ASI. He recovered the dead body of Gorelal from inside the house of Rampal. After taking dead body in possession vide memo Ex.P-11, it was sent for postmortem vide memo Ex.P-23. He also recorded the statements of Bhailal, Keshkali Yadav, Bhailal Yadav, Bhaiyalal yadav, Bhole Yadav, Munna Lal Yadav and Motilal Yadav. He sent Bhole Yadav and Munna Lal for medical examination vide memo Ex.P-24 and P-25. The accused Motilal Kevat, Ramcharan Kevat, Ram
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Sumiram Kevat and Ramkaran Kevat were investigated on 2.7.2004. On the disclosure statement of Ram Sumiran, a wooden plank (Baseda), Ballam from Ramkaran, Lathi from Motilal and Ramcharan were recovered, which were taken into possession vide memos Ex.P-7 to 10. The accused Ram Sumiran, Rampal, Motilal, Ramkaran and Ramcharan were arrested on 2.7.2004, whereas accused Munnalal was arrested on 23.9.2004. He took into possession the blood stained earth from the field of Ram Sumiran vide memo Ex.P-29. He prepared a site plan of the site on 1.7.2004. The articles recovered i.e. blood stained earth; plain earth; the wooden lathi recovered from Motilal; Ballam from Ramkaran; wooden plank (Baseda) recovered from Ram Sumiran; and, Lathi recovered from Ramcharan, were sent for examination by Forensic Science Laboratory, Sagar vide memo Ex.P-30. On completion of investigation a report under Section 173 of the Code of Criminal Procedure was filed before the learned trial Court. The accused denied their guilt and claimed trial.
03. In support of the prosecution, Motilal Yadav PW-1 author of FIR and Munnalal Yadav PW-2, Bhailal Yadav PW-3, Bhaiyalal PW-5, Smt. Keshkali wife and the deceased as PW-6 and Suresh Kumar Yadav PW-7 as witnesses of the occurrence, whereas Bablu Yadav PW-8 is a witness of recovery.
04. Motilal Yadav PW-1 has supported the prosecution story as given by him in the FIR. In cross examination he stated that the fish pond is about 200 meters from the house of deceased Gorelal, whereas his
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house is adjacent to the house of Gorelal. All the members of Yadav caste stay in one locality. He denied the suggestion that Munnalal and Motilal have not given any beatings to the deceased. Gorelal got beatings since he was objecting to the fish being killed. He denied that he has not seen the accused killing fish nor anybody has told him. The police got the fishing net recovered next day and then they came to know that Gorelal was given beatings for the reasons that the accused were attempt to fish from the pond of Gorelal. He, Bhailal, Bhaiyalal, Munnalal and wife of Gorelal reached the place of occurrence on hearing the alarm calls of Gorelal. When he reached the place of occurrence, he saw that Gorelal was being beaten and when many people came, the beatings were stopped and the dead body of Gorelal was taken inside the house of Rampal. In cross examination he has admitted that only on one Lathi he has seen blood. He denied the suggestion that the Yadavs tease Kevats including their ladies and children. He denied the suggestion that Gorelal went to the locality of Kevats in a drunk condition. He denied the suggestion that on alarm raised by wife of Rampal the beatings were given. He denied the suggestion that Kevat people have given beatings to Gorelal only for this reason.
05. PW-2 Munnalal Yadav is nephew of deceased Gorelal. He deposed that on alarm being raised by Gorelal that Ram Sumiran, Ramkaran, Motilal, Munnalal are giving beatings, he saw all the accused, who are present in the Court, were giving beatings with Lathi. On his intervention, Rampal hit him with a stone. Thereafter, he does not know
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what happened. In the cross examination he deposed that the stone hit him in the stomach and he became unconscious. PW-3 is Bhailal Yadav. He deposed that on hearing the alarm of Gorelal that Motilal, Munnalal, Rampal, Ramkaran and Ramcharan are lifting him, he saw in the torch lights that all the present accused were giving beatings to Gorelal. Ramkaran had Ballam but rest of the accused have Lathi. Ramkaran was hitting from the Lathi side of Ballam. Apart from him, Bhailal Yadav, Gorelal, Keshkali wife of Gorelal, Suresh Yadav etc. came to the place of occurrence. Munnalal and Rammaran dragged Gorelal inside the house of Rampal. PW-4 Bhola Yadav deposed that he saw the fishing net put by Ramkaran, Rampal, Munnalal, Ram Sumiran, Motilal in the pond in which Gorelal has kept fish. On alarm of Gorelal that the accused have put fishing net, then he and Munnalal Yadav reached the place of occurrence and saw that the accused are giving beatings to Gorelal. On his intervention, Ramkaran has hit him with the stone. Rampal hit Munnalal also with the stone, which hit him on his abdomen and the accused dragged Gorelal inside his house. Similar is the statement of PW-5 Bhaiyalal Yadav, brother of deceased, that on raising of alarm of Gorelal that the accused are beating him, he reached the place of occurrence. All the accused were giving Lathi blows to Gorelal. Keshkali Yadav PW-6 is the wife of deceased Gorelal. She deposed that when she was cooking food, her husband told her that he is going to pond and will eat the food after coming back. After 1 ½ an hour she heard alarm that Ramkaran etc. are beating her husband. She ran with her child in her lap and then saw
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that the accused were giving beatings to her husband near pond. All the accused were giving beating with Lathi. Suresh Kumar Yadav PW-7 son of Motilal Yadav deposed that when Gorelal did not permit the fishing net to be put by the accused, then Ramkaran started abusing Gorelal. Thereafter, four accused abused Gorelal. He told Gorelal to run. Gorelal followed him but the people apprehended Gorelal near "Neem" and "Jamun" tree. On raising alarm by Gorelal, Motilal Yadav, Bhailal Yadav, Bhaiyalal Yadva, Munna Yadav, Bhole Yadav etc. came. The accused have given merciless beating to Gorelal with Lathi. PW-8 Bablu Yadav, is the witness of recovery of Lathi from the accused.
06. The postmortem report is Ex.P-22. The report says that the deceased died of shock produced by internal bleeding and cumulative effect of multiple injuries sustained over body which are homicidal in nature. The postmortem report is to the effect that there was semi digested food in the small intestine of the deceased. The statement of Keshkali wife of Gorelal is that Gorelal had not eaten food before he went to the pond stands contradicted by the postmortem report which is to the effect that there was semi-digested food. The presence of semi-digested food contradicts the prosecution story that the deceased had not taken food before going to pond.
07. The prosecution witnesses are all Yadavs, living in the same locality. They are interrelated as well. However, their statements are contradictory. PW-1 Motilal Yadav deposed that Gorelal has gone to pond
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to keep watch over it. But he has not deposed that the place of giving beatings by the accused was the field of Ram Sumiran. However, what he has deposed is that place of giving beatings was about 100 meters from the house of Ramkaran and Munnilal. Whereas PW-2 Munnalal Yadav deposed that the place of occurrence is near pond. He said to have received injury from the stone thrown by Rampal, but the injury is simple in nature. PW-3 Bhailal Yadav deposed that on raising alarm he saw the accused are taking the deceased then he saw the accused giving beatings to Gorelal. Whereas, all other witnesses have deposed that the accused gave beatings and then dragged Gorelal into the house of Rampal. The statement of this witness contradicts the statement of other witnesses. PW- 4 Bhole Yadav also deposed that Ramkaran hit him with the stone and Rampal hit Munnalal. PW-5 Bhaiyalal deposed that on raising alarm by Gorelal he reached the place of occurrence and has seen Munnalal and Rampal were dragging Gorelal to the house where he died.
08. The Investigation Officer is Mr. R. N. Mishra, PW-12, ASI. In his cross examination, he deposed that witnesses have told him that blood stain was found on the edge of Ballam, but he denied of having seen any blood stain on Lathi and wooden plank (Baseda). As per the report of F.S.L. Ex.P-30, none of the Lathis, Ballam, wooden plank (Baseda) were found to contain human blood. From the statement of PW-12, R. N. Mishra, the dead body was recovered from inside the house of Rampal. Though the prosecution witnesses have deposed that the accused dragged
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the dead body into the house of Rampal, but the Investigating Officer has not found any dragging marks. Still further, it is unbelievable that after giving beatings with Lathi and Ballam, anybody would be fool enough to drag the dead body inside their house. The fact that the dead body was found in the house of Rampal corroborates the suggestion given to the prosecution witnesses that he had teased wife of Rampal, which led to beatings to the deceased by the relatives of Rampal.
09. In the absence of dragging marks, it is not possible to believe that the deceased could be lifted alive so as to dump him in the house of an accused. Therefore, it is impossible to accept the prosecution version that the dead body could be dragged without any dragging mark. The Investigating Officer in cross examination admitted that he has not shown the pond in the site plan and that the place where the scuffle has taken place is an open field, which is on the north side of the pond, whereas the house of Gorelal is towards south of the pond. He could not explain how Gorelal reached the place of occurrence. All the prosecution witness are of one family. Their statement is not corroborated by any other independent evidence, but is contradictory in respect of the manner of occurrence. It is also impossible to imagine that the accused will injure the deceased brutally and then take the dead body to their house.
10. The FIR was lodged at about 4:30 a.m. on 1.7.2004, though the incident has occurred previous evening at around 7 - 8 p.m. The explanation of the delay is that the informants were under fear. Such
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explanation cannot be accepted as the informant was not alone, but with large number of his clan, such as Munnalal Yadav PW-2, Bhailal Yadav PW-3, Bhole Yadav PW-4, Bhaiyalal PW-5, Keshkali Yadav - wife of deceased PW-6, Suresh Kumar Yadav PW-7 and Bablu Yadav PW- 8 are stated to be at the place of occurrence. Therefore, the delay in lodging the FIR remained unexplained.
11. Still further, Motilal PW-1 deposed that the dispute came to his notice when in the morning the fishing net was recovered. Meaning thereby, his presence at the time of occurrence is doubtful. Neither the Investigating Officer has deposed about recovery of fishing net in the morning nor is there any recovery of fishing net.
12. The blood stained earth and the sample earth were taken into possession by the Investigating Officer at about 6:45 a.m. on 1.7.2004 vide Ex.P-29, in the presence of H. Tripathi and Shyam Sundar Vishwarkama. Such are the witnesses of preparation of site plan Ex.P-12 also prepared at 6:45 a.m. Such witnesses have not been examined in evidence. The FSL report is in respect of the blood stained earth and simple earth recovered from the house of Rampal in Packets "A" and "B" and the blood stained earth and simple earth recovered from the field of Ram Sumiran in Packets "C" and "D". But, there is no proof of recovery of blood stained earth and simple earth from the house of Rampal. Thus, the prosecution story as propounded becomes doubtful.
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13. Still further, as per the statement given by Keshkali wife of the deceased, the deceased had not taken meals, but in the postmortem report there is semi-digested food found. PW-13 - Dr. R. K. Thakur deposed that the stomach gets empty after four hours of taking meals. The finding of semi digestive food in the intestine shows that the deceased has taken meals within four hours, whereas PW-6 - Keshkali, wife of deceased, has deposed that she was yet to prepare meals when the deceased went towards the fish pond.
14. The Supreme Court in the case of Shambhoo Missir and another Vs. State of Bihar reported as (1990) 4 SCC 17 doubted the prosecution case when the deceased was said to have taken food at 8:00 and the death occurred at 3:00 in somewhat situation as is in the present case. The relevant extract of the judgment reads as under:-
"4. The substance of the prosecution case is that the deceased Rajendra died as a result of the assault in question at about 3.00 PM on the very day of the incident. However, on the basis of the medical evidence, the defence has succeeded in establishing that he had died soon after he left his house at 8.00 AM. Dr. Shambhoo Sharan (PW 13) who performed the post-mortem examination of the dead body, has stated both in his report as well as in his deposition, that there was 8 oz. of undigested food on the stomach of the deceased. If as alleged by the prosecution the death had occurred at 3.00 PM, no such undigested food would have been found in the stomach at that hour when the food was taken by the deceased before 8.00 AM. If this is so, then the whole case of the prosecution must crumble. For this will establish beyond doubt that Rajendra had died very soon after 8.00 AM and none of the so called eye-witnesses had seen the assault on Rajendra. The said fact
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will also demolish the entire version of the three dying declarations made by the deceased to various prosecution witnesses at three different places. The non-explanation by the prosecution of the undigested food therefore casts serious adverse reflections on the entire investigation in the present case. Unfortunately, the High Court has failed to deal with this very important aspect of the evidence on record which has been highlighted by the trial court. It also strengthens the defence version that the accused have been involved in the present case by the obliging witnesses and unfair investigation."
In another judgment in the case of Jitender Kumar Vs. State of Haryana reported as (2012) 6 SCC 204, though the Court has held that there is a rule of universal application that after a lapse of two to three hours stomach of every individual, without exception, would become empty. The Court discussed the books on the Gestroenterology and Modi's 'Medical Jurisprudence. The Court observed as under :-
"55. It may be useful at this stage to refer to Modi's 'Medical Jurisprudence and Toxicology', Twenty Third Edition, which has specifically concluded that there is no absolute and definite standard that every human being would empty his stomach within two to three hours of taking the meals, irrespective of what kind of meal had been taken by the concerned person.
56. Judging the time of death from the contents of the stomach, may not always be the determinative test. It will require due corroboration from other evidence. If the prosecution is able to prove its case beyond reasonable doubt and cumulatively, the evidence of the prosecution, including the time of death, is proved beyond reasonable doubt and the same
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points towards the guilt of the accused, then it may not be appropriate for the Court to wholly reject the case of the prosecution and to determine the time of death with reference to the stomach contents of the deceased."
However, in the present case, the statement of wife is categorical that the deceased has not taken meals but still the semi- digested food is found in the small intestines creates the serious doubt on the prosecution evidence as the entire prosecution story hinges on the fact that the deceased has not taken food and has gone to fish pond to take care of his fish.
15. The entire prosecution story is surrounded by suspicious circumstances, which does not inspire confidence. Therefore, since the prosecution evidence is unreliable we accept the present appeal and grant benefit of doubt to the accused. Accordingly, the appeal stands allowed. The appellants/accused are acquitted of the offence under Sections 302 read with Section 149 and Section 148 of I.P.C. They be released forthwith, if not required in connection with any other case.
(Hemant Gupta) (Vijay Kumar Shukla)
Chief Justice Judge
Anchal