Madhya Pradesh High Court
Rokad Singh And Ors. vs State Of Madhya Pradesh on 29 September, 1992
Equivalent citations: 1994CRILJ494
JUDGMENT Gulab C. Gupta, J.
1. This judgment shall also govern disposal of Cr. Appeal No. 825/87 filed by Co-convict Suresh Ku-mar alias Chhannu as they relate to the same judgment of the Addl. Sessions Judge and therefore deal with common questions of fact and law. Appellants Rokad Singh, Ram-kumar and Santosh remained convicted Under Sections. 148 and 302, I.P.C. while all other appellants remained convicted for offences Under Sections 148 and 302 and read with Section 149, I.P.C. and sentenced to one year's RI and life imprisonment and a fine of Rs. 1000/- each by Judgment dated 23-6-87 passed by Shri A. K. Saxena, 8th Addl. Sessions Judge, Jabalpur in S.T. No. 177/85. The appellants are challenging legality and validity of their conviction and sentence by filing these appeals I Under Section 374(2), Cr.P.C.
2. Appellants are alleged to have formed an unlawful assembly to cause death of Sushil alias Vakeel and with the object in view, armed themselves with deadly weapons and actually caused death of said Sushil on 23-5-85 at about 11 a.m. 12 accused persons were prosecuted for the said offence but the four who were charged with offence of conspiracy have been acquitted while the appellants (8 in number) have been found guilty. Prosecution allegations were that on 23-5-85 at about 11 a.m. Sushil was returning on a motor-cycle from Patan and going to his village. Ratan (PW2) and Bhura alias Vijay (PW 4) were riding with him on pillion seat. When the motor-cycle reached near the culvert, at village Rosra, they found accused persons coming on a tractor from the opposite direction. They are alleged to have been armed with weapons Ikke Pharsa, Ballam and Lathi. The appellants have earlier existing inimical relationship with the deceased. Sensing danger, deceased Sushil turned his motor-cycle to run away and in that attempt went into a nearby agricultural field and fell down. He was chased by the appellants and given pharsa blows by appellants Rokad Singh, Ram- kumar and Santhosh, as a result of which, the deceased fell down. He was thereafter assaulted mercilessly by all the accused persons. Telephonic message of the rioting was conveyed to Shri D. K. Sharma, (PW 22) Sub-Inspector who immediately rushed to the site, village Nunsar and recorded the Dehati Nalishi Ex.P-3 at 1.15 p.m. In the meantime Prahlad (PW 6), Raghunath (PW 11) and one Ratan being told about the incident, by appellant Rokad Singh, went to the spot and found the deceased Sushil injured. They immediately took him to the Medical College Hospital Jabalpur where he was declared dead. Information about this death was given to the police at P. S. Garha by Prahlad and Ratan and on that basis, Marg Ex.P.-39 was recorded. Dr. Nagpal (PW 1) conducted post- mortem examination of the dead body and found as many as 23 injuries on the person of the deceased. According to Dr. Nagpal, all the injuries were ante-mortem and the deceased died as a cumulative effect of those injuries. The appellants were thereafter charged with offences as aforesaid and put on trial, before the learned Addl. Sessions Judge. The learned Addl. Sessions Judge,, on appreciation of evidence adduced by the prosecution, held that the Dehati Nalishi Ex.P.3 was the F.I.R. on the basis of which investigation has started. According to the learned Judge Marg. Ex.P-39 could not be accepted as F.I.R. as it was subsequent in time and not recorded at the appropriate place. The learned Judge further held that Ratan (PW 2) and Vijay Kumar (PW 4) were eye-witnesses, riding on the pillion seat of the motor-cycle driven by the deceased and their evidence, which was trustworthy, was sufficient to justify the appellants' conviction. The learned Judge found no inherent contradiction between the occular evidence and medical evidence and was of the opinion that medical opinion fully supported the ocular evidence. That is how the appellants have been held guilty and convicted and sentenced as aforesaid.
3. Oral submissions on behalf of the appellants have been made by Shri S. R. Nema, Advocate, who has also taken this Court through the entire evidence on record. Shri S. C. Datt, Advocate who was also appearing for some of the appellants could not, however, remain present at the time of hearing of the appeal. He, however, filed written submissions on 14-9-92 which have been taken into consideration. The submissions of both the counsel are, however, the same and are as under:--
(i) Dehati Nalishi Ex.P.3 in not the F.I.R., as it has not been recorded as it purports to be and the first information of the crime is Merg intimation Ex.P.39 which mentions only two accused persons. Apparently, therefore, involvement of other accused persons with the crime is an afterthought.
(ii) Ratan (PW 2) and Vijay (PW 4) are not eye-witnesses. Their evidence is contradicted by Prahlad (PW 6) and Raghunath (PW 11).
(iii) Medical evidence furnished by Dr. Nagpal does not support pharsa injury on the head of the deceased and hence there is apparent contradiction between the medical evidence and ocular evidence.
It is, therefore, submitted that the appellants are entitled to acquittal particularly when there had been no motive and there is no allegation of serious previous history of inimical relationship. Even if the story given by Ratan (PW 2) and Vijay (PW 4) is accepted, the offence is said to have been committed by two appellants mentioned in Ex.P.-39 and that too Under Section 326, IPC.
As against it, the panel Lawyer Shri R. S. Patel, has seriously supported the impugned judgment and submitted that not only there is reliable evidence of eye-witnesses, there are also other circumstances which support the prosecution case.
4. Which is the F.I.R.? Dehati Nalishi Ex.P.3 or Merg: Intimation Ex.P-39? Ex.P-3 has been recorded at 13.15 hours at village Nunsar and mentions that the incident had taken place at 11.30 a.m. at the culvert at village Rosra. Ratan (PW 2) is the person giving the information. According to this report, he had, in the company of the deceased and Vijay alias Bhura Patel, gone to Patan on a motor-cycle and were returning home. They saw a tractor coming from the opposite direction driven by appellant Ramkumar, who was armed with a Pharsa. Santosh was also with him on the tractor and was having pharsa. All other accused persons were standing at the culvert. Motor-cycle of Rokadsingh was parked on the left side of the road. They sensed danger and therefore, deceased turned his motor-cycle and fell into an agricultural field. He started running and was chased by the appellants. He was watching the incident from a distance of about 20 yards. All of them brutally assaulted the deceased and turned towards him and Vijay. They, therefore, ran away. While running away, they heard a gunfire sound. Based on this Dehati Nalishi, F.I.R. Ex.P-4 was recorded at P.S. Patan at 23.10 hrs. This report mentions all the 8 appellants. As against this, Merg Intimation Ex.P-39 is recorded at Garha Police Station on the information given by Prahlad (PW 4) and one Arjun at 14.00 hrs. and mentions Ramkumar and Rokadsing etc. responsible for the injuries. The word "Vagairah" ¼oxSjg½ appearing immediately after Rokad Singh is said to be an interpolation and has been accepted as such. The intimation only mentions that Sushil was being brought to Medical College but at the casualty, doctor examined him and declared him dead, body was kept in the mortuary and intimation of death was given. This Merg intimation does not mention the place of the incident, the manner in which the incident had taken place and many other details, which are contained in Dehati Nalishi contained in Ex.P.3. Ratan (PW 2) has deposed on oath that he got the report lodged as per Ex.P-3 at village Nunsar (Para 9). In his extensive cross examination on the subject, he has insisted that the report was lodged. According to him, there were so many others including Maheshilal and the report was written at a parchhi in front of the house of Karan Baretha. The report itself does not mention the particular place where it was recorded but only mentions that it was recorded at village Nunsar. It is alleged that this witness is contradicted by D. K. Sharma (PW 22) who in para 35 has stated that the report was recorded in the house of Maheshilal. This Court finds no such contradiction or inconsistency. The witness does not say that it was written in the house of Karan Baretha but says that it was written at the Parchhi in front of Karan Baretha's house in the presence of Maheshilal. Relationship of Karan Baratha and Maheshilal has not been asked, no other evidence has been produced. Since Ratan Patel (PW 2) has insisted that this report was written at his instance and bears his signatures, there is no reason to doubt about its correctness. It is, however, true that this report was written on a plain paper. This is however, natural because it was not written at the police station where all printed forms are available. It is also not necessary that F.I.R. must always be written on a printed form. Yet, another objection taken by learned Counsel for the appellants is that this F.I.R. was not sent to the Magistrate as required Under Section 157, Cr.P.C. Report Ex.P.3 does not mention that it was sent to anyone. Similarly, F.I.R. recorded on the basis of this information also does not mention any thing in this behalf. In cross-examination Shri Sharma (PW 22) was asked several questions about this report but no question was asked about this report being sent to the Magistrate. If the appellants doubted that the report was not sent as required they should have been asked specifically about it. However, in cross examination, it was suggested to the witnesses that the report was not sent to the Magistrate from village Nunsar and he admitted the same. He, however insisted that the report had been sent from the police station and its details are mentioned in the Dak Book (Para 47). If the appellants wanted further information, the record could be produced on their making such request. Apparently therefore, the so-called defect in recording the report and sending the same to the Magistrate are imaginary. In this view of the matter, the opinion of the learned A.S.J. that report Ex.P.3 was the F.I.R. and since it mentions all the 8 appellants, there was no difficulty whatsoever, in charging them and putting them on trial.
5. Then the next important question is whether Ratan (PW 2) and Vijay Kumar (PW 4) were with the deceased, riding on the pillion seat of the motor-cycle and have seen the incident. The story given by Ratan (P W 2) is that he, Sushil (the deceased) and Vijay Kumar (PW 4) had gone to Patan and were returning back to their village. According to him, before returning, they had taken their break-fast at hotel run by Badde Maharaj. Prosecution has examined Badde Maharaj, whose real name to Suraj Prasad (PW 23). He has deposed on oath that he had seen Ratan and Vijay coining out of the canteen with the deceased and had given a permit of Bamboos and Ballis to be handed over to Mihilal and thereafter all the three went towards Munsar on a motor-cycle: This witness has been subjected to long cross-examination. During which he has admitted that he has also been a witness in prosecution in a .case against Dharamdas, the father of the appellant Rokadshingh. He was also witness in several other cases. He however denied that he has any illwill or that he was against the appellants. Simply because a witness is cited as such in more than one criminal Case, his evidence does not become doubtful. His evidence therefore does not indicate that he had any illwill against the appellants. His evidence would therefore, establish that Ratan was seen with the deceased immediately before the incident. Nanhebhai (PW 19) is the person actually running the canteen and has deposed on oath that deceased Vakeel was in the company of others and had taken his break fast at about 11 a.m. He states that the deceased Vakeel went towards village Nonuser on a motor-cycle. This witness, however, does not say that other two persons who had taken break-fast with Vakeel, had also gone with him on the motor-cycle. For this reason, he was declared hostile and cross-examined with reference to his case diary statement Ex.P-26 in which he had named Ratan (PW 2) as one of the persons in the company of the deceased. In view of this apparent contradiction, between his case diary statement and court statement, it cannot be held that the prosecution case was false and was concocted. May be, this witness has been won over and does not wish to support the prosecution. There is also no reason why his case diary statement would not be correctly re-corded. Under the circumstances, evidence on record establishes beyond reasonable doubt that Ratan (PW 2) and Vijay Kumar (PW 4) Were with the deceased at the time when the incident took place. Both of them have, therefore, been rightly held to be eye-witnesses.
6. Can it then be said that Prahlad (PW 6) and Raghunath (PW 11) contradicted these two eye-witnesses. This Court has been taken through the evidence of these witnesses and has examined the same little more carefully and finds nothing therein which can be said in contradiction of the evidence of Ratan and Vijay Kumar. This Court, on the contrary is of the opinion that they support the evidence of the two eye-witnesses. Prahlad (PW 6) is the person who had rushed to the spot on learning of the incident from the appellant Rokadsingh and had taken the deceased to medical hospital. He has seen the deceased lying badly injured. According to him, he asked the deceased as to how he got injured and was told that the appellants have caused those injuries by using pharsa, ballam and lathis. The learned trial Judge has held this part of the evidence of Prahlad to be a little doubtful as according to the learned Judge, a person so injured could not possibly have named the appellants. The view expressed by the learned Judge does not amount to discrediting this witness. It only indicates that the approach of the learned Judge had been little more careful and cautious. This Court, however, finds no justification for becoming so overcautious. The fact remains that the deceased did not die on the spot and died while he was being transported to the hospital. Possibility of the deceased being seriously injured cannot be ruled out but that does not mean that he was unconscious. Be that as it may. If even without accepting this dying declaration, the conviction could be maintained, the appellant would not get any benefit of this. Raghunath (PW 11) is another witness who had gone to the spot on hearing the news of the incident from Rokadsingh had seen the deceased lying injured in an agricultural field. He also states that on being asked the deceased informed that the 8 appellants had caused injuries to him. He, along with Prahlad (PW 6) took the deceased to Medical College Hospital where he was declared dead. It is true that this witness is related to the deceased but for that reason alone, his evidence cannot be discarded. Though he has been subjected to long cross-examination, nothing has been suggested to him to indicate that he bears any illwill against the appellants. The evidence of a related witness, like Raghunath cannot be equated with a witness who is interested in securing conviction of an accused person or is on inimical terms with the accused. A related witness would not shield the real culprit because of his affinity with the deceased and therefore, evidence of a related witness is much more reliable than the evidence of an interested witness or inimical witness. It may be that these witnesses do not relate (narrate) the incident in the same language or manner which in the opinion of this Court, is natural and do not affect the credibility of the witness. Indeed, such variations are natural and do not cast any doubt about the correctness of their version. Indeed, absence of these variations would lead this Court that they are tutored witnesses. A parrot like reproduction is not expected from an independent witness. Under the circumstances, the evidence of these two witnesses together with other two witnesses who proved presence of Ratan (PW 2) and Vijay Kumar (PW4) with the deceased make a complete case against the appellants. It was, however, submitted that even if the evidence of the aforesaid witnesses is accepted as true, it does not stand the test of proof beyond reasonable doubt. As to what is the standard to be applied in such cases and the meaning of proof beyond reasonable doubt, reference may usefully be made to the decision of the Supreme Court in State of U.P. v. Krishna Gopal, AIR 1988 SC 2154 : 1989 Cri LJ 288 where a similar argument was made and examined in detail by the Supreme Court. The Court, in this case, laid down the guidelines about the quality of trial process and observed that at page 2160 of AIR :--
Eye-witness' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touch-stone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story, consistency with the account of other witnesses held to be credit worthy; consistency with the undisputed facts; the "credit" of the witnesses; their performance in the witness box; their power of observations etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.
The Court further observed as under:
The concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constituted proof beyond reasonable doubt. There is an unmistakable subjective element, in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately, on the trained intuitions of the Judge. While the protection given by the criminal process to the accused persons is not be eroded, at the same time, uninformed legitimation of trivialities would make a mockery of administration of criminal justice.
The appreciation of evidence done by the trial Court with meticulous care and keeping in view the minute details, meets the aforesaid requirement and therefore the appellant cannot be permitted to say that the evidence does not meet the requisite test of proof beyond reasonable doubt.
7. The last important argument of the learned Counsel for the appellants is that there is a conflict between the ocular evidence and the medical evidence and therefore, evidence of eye-witnesses deserve to be rejected. Medical evidence, as is well settled, is a opinion evidence given by an expert and deserves respect by the Court. Such evidence cannot be brushed aside without any justifiable reason. This is, however, not to say that opinion expressed by an expert is always binding upon the Court. Evidence of an expert, like any other witness, has to be appreciated in ac accordance with law and accepted only if found trustworthy. An opinion evidence of an expert after its acceptance by the Court becomes the decision of the Court and ceases to be a opinion evidence of the expert. Under the circumstances, evidence of an expert also has to be interpreted like any other evidence. In so doing, the effort should be made to explain the same and correlated with the evidence of eye-witnesses. It is only when that the two become irreconcilable that the question of accepting one or the other arises and not otherwise. In this connection. Ranchhod-singh v. State of M.P., 1984 MPLJ 292., deserves notice. Under the circumstances, it may first be examined whether there is any inconsistency or contradiction between the two evidence as alleged? The submission of the learned Counsel for the appellants is that though the eye-witnesses have deposed on oath that appellant Rokadsingh gave a pharsa blow on the head of the deceased and appellant Ramkumar gave a pharsa blow on the waist of the deceased, medical evidence does not support the same. It is true that Ratan (PW 2) has in para 6 of his evidence, deposed as aforesaid. The witness has, however, stated that while the appellant Rokadsingh hit the deceased on the head, he did not see whether the pharsa was used from the sharp side or the blunt side. In his cross-examination (Para 12) he had stated that pharsa blow was given with force. Dr. Nagpal (PW 1), who had conducted the post-mortem examination, has opined that injury No. 8 found on the person of the deceased was on the middle of the occipital region but was lacerated Now if this injury was the injury caused by the sharp edge of the pharsa, it should have been an incised wound. Apparently, therefore, it was not caused by using the sharp side of the pharsa. This is also the opinion of Dr. Nagpal as appearing in para 4. Dr. Nagpal has further elaborated in para 9 of his statement that there were three injuries on the head of the deceased but none of these were incised wound and none of them were caused by sharp edge of the pharsa. As is noticed earlier. Ratan (PW 2) had seen the use of pharsa but has not been able to state which side of the pharsa was used. He claimed to have seen the incident from a distance of 20 yards (para 8) and hence it is natural for him not to have noticed this minute detail. Vijay Kumar (PW 4) also state in para 5 of his statement evidence that Rokadsingh gave a pharsa blow which hit the deceased on the head. He however, does not say whether Rokad Singh used sharp side or the blunt side of the pharsa for the purpose. In his cross-examination though questions were asked to him about the use of Pharsa by the appellant Rokadsingh, he was not required to clarify whether the injury on the head of the deceased was caused by sharp side or the blunt side of the pharsa. He was also at a distance of 20 yards from the place of the incident and therefore, he might not have noticed the minute detail of pharsa being used either by the sharp side or the blunt side. Statement of these witnesses would, therefore, indicate that pharsa was used on the head and Dr. Nagpal found injuries on the head. Since pharsa could be used from the blunt side as well, this Court would not find any discrepancy between the evidence of these witnesses and the medical evidence. Since this Court is of the opinion that there is no discrepancy between the two, no benefit can accrue to the appellants.
8. This Court has gone through the impugned judgment and finds it appreciating evidence of witnesses and eye-witnesses with care and caution. Since this Court is in full agreement with the conclusion recorded by the learned A.S.J. and finds nothing illegal in the manner of appreciation of evidence by him, it is not considered necessary to undertake fresh or independent examination of evidence again. This Court however fully endorses the conclusion recorded by the learned A.S.J. on the evidence on record, establishing involvement of the appellants in the crime beyond reasonable doubt.
9. The appeal fails and is dismissed.