Madhya Pradesh High Court
Chhakki S/O Ramnath vs State Of Madhya Pradesh on 24 September, 1990
Equivalent citations: 1991(0)MPLJ253
JUDGMENT Shacheendra Dwivedi, J.
1. By this judgment both the appeals (Criminal Appeal No. 319/83 and Criminal Appeal No. 320/83), challenging the order of Additional Sessions Judge, Datia, in Session Trial No. 27/82, dated 29-10-1983, whereby appellant Chhakki of Criminal Appeal No. 319/83 and appellant Lalai of Criminal Appeal No. 320/83 have been convicted Under Section 302/34 of the Indian Penal Code and sentenced to imprisonment for life, are being disposed of.
2. According to the First Information Report (Ex.P.8), lodged by Ramshree (P.W.7), on 5-12-1981, at Police Station, Indergarh, in village Ekona, in the night of 4-12-1981, at about 8-9 P.M., Lokman, the deceased, went to the house of Balle (P.W.9), as they were sharing the agriculture, for taking money and for saying about diesal. After some time, shouts were heard, "DODIO RE MAR DARO BACHA OO"; and on hearing the shouts, Jagman went to the house of Balle (P.W.9). Ramshree (P.W.7) also followed Jagman and saw that, inside the Pour of Balle (P.W.9), Marpit of Lokman and Jagman, deceased persons, was done by four accused persons, viz., Lalai, Chhakki, Chhinga and Ramsewak. Chhakki was assaulting by Basula and Lalai by Kulhadi, Ramsewak and Chhinga had Lathis and both were causing marpit by Lathis. According to Ramshree, she herself, the daughter and wife of Balle, shouted for help but nobody paid any heed and all th5 four accused persons killed Lokman and Jagman and dragged the bodies from inside the Paur and threw them in the lane. Thereafter, Ramshree (P.W.7) went back to her house and remained there, the whole night. In the morning, she went to her brother-in-law, Dayaram (P.W.6) son of deceased Lokman, stated the incident to him and thereafter accompanied by him, lodged the report (Ex.P.-8) at P. S., Indergarh.
3. After investigation, all the four accused persons were challaned and tried for the offence Under Section 302/34, Indian Penal Code. The learned trial Court, disbelieving the prosecution witnesses, acquitted the two co-accused persons, viz. Chhinga and Ramsewak, giving them the benefit of doubt, but the appellants, on the basis of the same evidence, have been convicted and they have preferred these two separate appeals.
4. The prosecution case rests on the ocular evidence and particularly on the testimony of four eye-witnesses, viz., Dropadi, wife of Balle, (P.W.4), Swarupi d/o Balle (P.W.5), Ramshree (P.W.7) and Balle (P.W.9).
5. Dropadi (P.W.4) has stated that Lokman, the deceased, and Balle had partnership in the agriculture and Lokman reached the house of Balle (P.W.9) for asking money and also diesel. At that time, Balle (P.W.7) was taking his food and she was cooking and serving him. When Balle (P.W.9) came to his Pour and was sitting with Lokman, the two appellants came there and Lalai asked Balle (P.W.9), "why have you not prepared the AANKURI?" to which he replied, "I am making it". On this, the appellant Chhakki tried to cause marpit of Balle. The other two co-accused persons also arrived there. Balle ran away from the house. Thereafter, all the four accused persons caused marpit of Lokman. She shouted for help and so also her daughter Swarupui. Lokman, who was being assaulted, also shouted for help. Thereafter, Jagman, his son, came in the Pour but he was also beaten by the four accused persons. Killing the two their bodies were dragged from the Pour and were thrown in the lane by the accused persons and thereafter all the four accused persons ran away from the spot. According to this witness Dropadi, there were 100-150 injuries on the body of Lokman and so also Jagman was badly injured. The deceased persons had injuries on ribs, head, both cheeks, back, stomach, hands and legs. She remained in the house and did not narrate the incident to anyone.
6.The other witness Swarupi, who is daughter of Dropadi, also stated that all the four accused persons caused marpit of the deceased. She has given omnibus statement and has specified only one injury on Jagman by Lalai on his back (not found by the doctor). According to this witness, and also her mother Dropadi, nobody came at the spot in the night. Swarupi (P.W.5) has further stated that she went and narrated the incident to Charandas, Sambhu (both have not been examined).
7. The other important witness on which the prosecution relies is eye-witness Ramshree (P.W.7). This witness too has given omnibus statement regarding the marpit of the two deceased persons. According to her, on hearing the shouts of Lokman, her husband Jagman left his house and came to the house of Balle, she followed him and saw that all the four accused persons were assaulting her father-in-law Lokman and when Jagman reached, they all assaulted him also by their respective weapons Basula, Kulhadi and Lathis. Presence of this witness is not admitted by other two eye-witnesses, viz. Dropadi and Swarupi. According to this witness, Ramshree (P.W.7), bodies of the two deceased persons were dragged from the Paur and were thrown in the lane. After witnessing the incident, she came to her house and closing the doors, she sat inside the house whole night. She did not narrate the incident to anyone and in the morning, she went to the brother-in-law Dayaram (P.W.6) and narrated the incident to him. Thereafter, accompanied by this witness, report was lodged by her at P.S., Indergarh.
8. Last witness of the prosecution, who claimed himself to be an eye-witness is P.W.9 Balle. According to this witness, when Chhakki tried to assault him, he ran away from the Pour and was hiding himself in Khadera. He returned back after about 2 hours and found that the dead bodies were lying in the lane, yet he claims to have seen the assault on the two deceased persons by all the four accused persons.
9. Now, when the evidence of these witnesses is assessed in the light of medical evidence, it stands contradicted and is not supported by the medical evidence. It was found by Dr. Brijendra Kumar Shrivastava (P. W. 3) that the deceased persons had only 3 injuries each on their body, out of which deceased Lokman had one injury which could be caused by hard and blunt object. No marks of dragging were found on the bodies of the two deceased persons. While the eye-witnesses are not corroborated by the medical evidence, the evidence of prosecution suffers from serious comradictions making them unreliable. Their Lordships of the Supreme Court in Mangilal and Ors. v. State of M. P., 1990 MPJR 331 have held that if the narration of the prosecution version is in contradiction with medical evidence, on crucial points then no reliance can be placed on such oral evidence. Further in the instant case, the eye-witnesses have named and implicated four persons in the offence, but the learned trial Court found that the prosecution evidence with regard to two accused persons was unreliable and shaky. They were acquitted by the trial Court. The evidence of eye-witnesses is also in direct contradiction with the medical evidence and in such circumstances, Supreme Court in recent decision in B. N. Singh etc. v. State of Gujarat, AIR 1990 SC 1628 observed that when the witnesses have gone to the extent of implicating one accused falsely and when the evidence of eye-witnesses is contradicated by medical evidence no conviction could be based on such evidence.
10. Dr. Brijendra Kumar Shrivastava (P.W. 3) found in autopsy that both the deceased persons had semi-digested food in the stomach and has further stated that process of digestion starts after 2 hours and the food remains semi-digested for 4 to 6 hours.
11. For fixing time of death, scientific data is of much help and when the semi-digested food is found in the stomach, time of death can be ascertained and fixed at 3 to 5 hours after the food was consumed. In the instant case, there is evidence on record, with regard to deceased persons' consuming food. The statement of Ramshree (P.W. 7), wife of deceased Jagman, and daughter-in-law of deceased Lokman, is very specific on the point. She stated that her father-in-law Lokman left for the house of Balle soon after he took his dinner and her husband Jagman could not even take his full food as he rushed to the house of Balle after hearing the shouts of his father Lokman. The version shows that no time was lost after the two deceased persons consumed food, when the marpit of both was done and they died. This is a serious infirmity in the prosecution case as laid down in Mangilal (supra). In this regard, the learned defence counsel Shri R. K. Sharma has relied on a recent decision of the Hon'ble Supreme Court, in Lalaram and Ors. v. State of U. P., AIR 1990 SC 1185, wherein their Lordships of the Supreme Court observed that "the time of occurrence as put forward by the prosecution is highly doubtful. P. W. 3 Dr. Shrivastava, who conducted post mortem having regard to the presence of undigested food in the stomach of the deceased persons, opined that "both the victims could have died within half an hour and one hour after taking food." In the instant case, the doctor found "semi-digested food" and with this circumstance, as well, the proseuction theory becomes doubtful. Shri Sharma argued that the time of assault on the deceased persons could only be late at midnight and not at that time which the prosecution has alleged. There is much substance in the argument of Shri Sharma in view of Lalaram (supra), the witnesses are further discredited.
12. The other infirmity of the prosecution, which has been pointed out by Shri R. K. Sharma, counsel for the appellants, is that no blood was found at the spot, i.e., Paur of Balle, where the incident is alleged to have taken place. According to him, the prosecution has subsequently tried to justify the absence of blood in the Paur by introducing the theory that the two appellants came back to the house after some time of the incident, asked Dropadi, the wife of Balle, and Swarupi, the daughter of Balle (P.Ws. 4 and 5 respectively) to clean the blood in the Paur and to plaster the floor by cow-dung. But this theory does not appear to be natural and has also been subsequently introduced. The absence of blood in the Paur also goes to discredit the prosecution version and when the blood was not found at the spot, the inference would be that Paur was not the place where incident took place, but it was the lane, where blood was found and from where the blood-stained earth was seized.
13. Admittedly, the house of Balle is situated in the thickly populated area of the village and when the incident took place in the Paur of Balle, where the three ladies, viz., Dropadi (pw. 4), Swarupi (P.W. 5) and Ramshree (P. W. 7) were shouting for help all the time and when the shouts of the deceased Lokman attracted Jagman, who reached the spot on hearing the shouts, non-examination of any witness of the locality casts serious reflections on the investigation and makes the prosecution version further doubtful.
14. According to Dayaram (P.W. 6), he was told by Ramshree that his wife Ramdulari, his daughter-in-law Kamla and other daughter-in-law (wife of his son Munna) and his children were present on the spot. The non-examination of any of these witnesses and anyone of locality by the prosecution lends support to the defence version, coupled with the fact that semi-digested food was found in the stomach of both the deceased and also as no blood was found in the Paur, that the incident has not taken place where the prosecution has stated and that the deceased persons were assaulted sometime late in the night and their dead bodies were found lying in the lane, only in the morning. The defence version is more probable than the prosecution theory and the accused persons are entitled to get benefit of doubt.
15. It has been vehemently argued by Shri Sharma that conduct of eye-witnesses does not appear to be reasonable and natural. If they had witnessed the incident it is most unnatural that they would not make any effort at the time of incident for saving the deceased persons and after the incident they would not narrate the story to any one in the village and would keep themselves confined in their houses. It is again not natural that no villager would be attracted if they had shouted for help. Even the conduct of Ramshree, wife of deceased Jagman, having gone to, the house after witnessing the remaining there, the whole night, without narrating the incident to any one, is most unnatural. As such for the foregoing reasons conduct and the circumstances are far from satisfaction, unnatural and go to discredit their version.
16. In view of all the aforesaid reasons, there appears substance in the contentions raised by the learned counsel for appellants that in all probabilities Dropady, Swarupi, Ramshree and Balle did not witness the occurrence.
17. Further, the prosecution version comes under the heavy Shadow of doubt for having failed to prove compliance of Section 157(1), of the Code of Criminal Procedure, 1973, when there is a serious challenge to the genuineness of the F. I. R. by defence. The provisions of Section 157(1) Criminal Procedure Code act as a guard against the scope of allegations of any subsequent manipulation in the FIR by the prosecution and in the narration of the incident. When the copy of the FIR is dispatched forthwith to the Magistrate concerned, there remains lesser possibility of substituting or extracting the FIR. This Court had the occasion of examining this important aspect in Patange v. State of M. P., 1985 C. Cr. J. (M.P.) 291, wherein it was observed :
"The brooding omnipotence of the Constitutional mandate of Article 21 is pervasive and reasonableness of procedure at investigation stage, postulated thereby, casts a duty on the prosecution to discharge its burden of satisfying the Court about due compliance of requirement of Section 157(1)."
It was further reiterated by this Court in Narayan v. State, 1986 II MPWN 136. The genuineness and the authenticity of the FIR have been seriously challenged by the defence, submitting that there is serious contradiction with regard to the lodging of the FIR, in the statements of two concerned witnesses Dayaram (P.W. 6) and Ramshree (P.W, 7), who are the near relations of the deceased. According to Dayaram, who is real brother of deceased Jagman and the son of deceased Lokman, in exainination-in-chief of his version, he all alone went to the Police Station for lodging the report, whereas Ramshree deposed that Dayaram accompained her to Police Station for lodging the report. The prosecution version of the report, being lodged by Ramshree (P.W. 7), accompanied by Dayaram, becomes doubtful. Further Dayaram has also stated that by then, the report was already lodged. Therefore, Shri Sharma submits that in the light of version of Dayaram the FIR (Ex. P-8) becomes inadmissible in evidence and cannot be regarded as FIR. The fact, when the copy of FIR was dispatched, to the concerned Magistrate, has not been proved by prosecution. Non-compliance of the provisions of Section 157, Criminal Procedure Code further make the FIR (Ex. P-8) a doubtful document. The version in the FIR has also been contradicted by medical evidence arid the statements of other eye-witnesses, viz., Dropadi, Swarupi and Balle.
18. Taking the cumulative view of the prosecution evidence and the circumstances, the prosecution story does not inspire confidence, and the prosecution has failed to prove its case against the appellants beyond the shadow of reasonable doubt. Consequently, the benefit of doubt must go to the appellants.
19. In the result, both the appeals succeed and are allowed. Convictions of the appellants Under Section 302/34, Indian Penal Code and sentence of life imprisonment are set aside and they are acquitted of the charge. They shall be set at liberty forthwith, if not required in any other case.