Indian Kanoon - Search engine for Indian Law

J U D G M E N T SANTOSH HEGDE, J.

The appellants herein, who are 6 in number, and 6 others were accused of having caused the death of one Preetam Singh on 15.7.1980 at about 12.30 p.m. in village Bhadera which incident according to the prosecution, was witnessed by Babu Lal PW-1 and his father Man Singh PW-2 along with Karan Singh PW-6. PW-2 was the elder brother of deceased Preetam Singh, PW-1 was his nephew while PW-6 Karan Singh was the uncle of the deceased. Prosecution alleged that all the accused persons including the appellants herein had enmity with the deceased on different grounds, hence on the date of the incident they formed themselves into an unlawful assembly being armed with deadly weapons like gun, farsa, lathi, barchhi, axe etc. and attacked the deceased while he was grazing his cattle in a field at village Bhadera, causing him multiple injuries consequent to which he died. It is the further case of the prosecution that PW-1 who witnessed the incident then went to the Police Station which was situated about 3 kms. away from the place of incident, and lodged a complaint which was registered as FIR Ex. P-1. Based on the said complaint, the Police initiated investigation and came to the spot of the incident and Ex. P-2, an inquest report was prepared and the body was sent for post mortem examination. PW-9 the doctor who conducted the post mortem examination on the dead body found 7 external injuries on the body out of which injury Nos.5 and 7 were bruises while injuries 1 to 4 and 6 were incised wounds; one such wound caused the left hand of the deceased to severe from the joint of the wrist while consequent to the other injuries the deceased suffered cut wounds on the right hand and on the left side of the head. The doctor had opined that the injuries were ante mortem and the deceased had died due to shock resulting from the injuries suffered on the head and haemorrhage resulting from other injuries.

It is the prosecution case that on the fateful day Preetam Singh had taken the cattle for grazing to village Bhadera which is in a forest area at about 7 a.m. It is the further case of the prosecution that at about 10 a.m. PW-1 the nephew of the deceased took the lunch for the deceased to the field where deceased was grazing the cattle and gave him the food. PW-1 in the complaint states that after giving food he went to village Itayali to call one Moti Ram Kachhi which village was about a mile away from the place of the incident and having gone there and having failed to meet him, he returned to Bhadera, the place where the deceased was grazing his cattle at about 12 noon. On his way to Bhadera, it is alleged that he saw 12 accused persons armed with deadly weapons walking towards the place where his uncle was grazing the cattle which was about 100 yards from the place from where he saw these accused persons. PW-1 then states that on being apprehensive of the possible danger he stayed back and hid behind a tree and noticed these accused persons attack Preetam Singh. He in his evidence graphically describes the nature of attack on his uncle. He stated that Bhure Singh asked others to kill Preetam Singh then A-4 Ranveer Singh gave a farsa blow on the head, A-6 Rajendra Singh also assaulted on the head of Preetam Singh when the latter fell down. Bhure Singh then pierced the left thigh of the deceased with a Barchhi, A-11 Mewalal severed the left hand with a farsa, A-7 Mullu Singh gave a farsa blow on the right hand and all the accused persons caused injuries to Preetam Singh with their respective weapons and thereafter they went away towards the village, leaving behind the dead body. After the departure of the assailants, PW-1 went near his uncle and found him to be dead. This witness also says that during the incident he noticed his father PW-2 Man Singh and PW-6 Karan Singh witnessing the incident. He then states that he went to the Police Station and lodged a written complaint and returned to the place of incident with the Police. PW-2 Man Singh, father of PW-1 in his evidence stated that in the morning of 15.7.1980 he went to the temple for the darshan of Hanumanji situated in village Dadurua and while returning to the village from the temple he came on a road which leads to village Bhadera where his brother Preetam Singh was grazing the cattle. He enquired from Preetam Singh about his having had his lunch and thereafter he proceeded further where he met PW-6 his uncle who was also grazing the cattle. He says that he stayed there with PW-6 smoking a bidi. Meanwhile, he saw all the accused persons armed with deadly weapons going towards the place where the deceased was grazing his cattle and started attacking the deceased. He in the course of his evidence stated that he and PW-6 ran to the place of attack and asked the accused persons not to beat but they did not listen. He further states that after committing the murder the accused persons went away from the place of incident and by that time his brother Preetam Singh had died. He then says that at that point of time PW-1 arrived there and when asked PW-1 told him that he being scared was hiding behind a tree and had noticed the incident and thereafter PW-1 went to the Police Station to lodge a complaint and returned to the place of incident with the Inspector and some policemen. He then stated that the Inspector then did 'likha padi' on the spot and sent the dead body to the hospital. During the course of his cross examination it was elicited that when he went to the temple he did not know that his brother would be going to Bhadera village for grazing cattle and from his village to go to the temple there were two routes; one which would go via the field where the deceased was grazing his cattle which was a forest area and the other was a route going straight to Dadurua where the temple is situated but this route does not go near the village Bhadera. He also stated that there was bus service from his village to Dadurua. When he was asked why he chose to come via the place of incident particularly when he had taken a different route to go to the temple, he had no specific answer for the same except saying that he chose to come that way. PW-6, the uncle of PW-2 and the deceased did not support the prosecution case at all and denied that he ever witnessed the incident or that he met PW-2 at the time of the alleged incident. Therefore, the prosecution case primarily rests on the evidence of PWs.1 and 2. The trial court in its judgment held that PWs.1 and 2 were chance witnesses because it was not normal for either of them to be present at the time and place of the incident. It also noticed the fact that according to the medical evidence the deceased had suffered 7 external injuries out of which two were bruises. While according to the evidence of PWs.1 and 2 all the accused persons had assaulted the deceased with deadly weapons.

We, having heard the arguments of learned counsel for the parties and perused the records, are inclined to agree with the findings of the trial court rather than that of the High Court. Though the finding of the trial court that PW-1 should be treated as a chance witness, in our opinion, cannot be correct because it is quite often the normal practice in the village that when a member of the family takes the cattle for grazing, somebody else carries the lunch for that person therefore, it cannot be said with certainty that PW-1 was a chance witness. However, other circumstances make us agree with the trial court that this witness might not have seen the incident at all. It is to be noted that in the complaint it was stated that he went to Itayali to meet Moti Ram Kachhi, but he could not meet him hence he came back to Bhadera. Most likely finding it difficult to convince the court the reason why he went to Itayali and came back just in time to witness the incident, he improved his evidence when he stated before the court that he went to Itayali because the deceased had asked him to go there and call Moti Ram Kachhi which was not the case in the complaint. Be that as it may, the fact remains his going to Itayali which accounts for the purpose of timing is not established because said Moti Ram was never contacted nor this part of the evidence of PW-1 is corroborated from any other source. This is a vital piece of link evidence which is missing from the prosecution case and creates a doubt why PW-1 stayed back in the grazing field for nearly two hours after serving lunch to his uncle. Therefore, the trial court was justified in drawing an adverse inference in regard to the possible presence of PW-1 at the time of the incident. Then again we notice that this witness when he saw the accused persons heading towards his uncle, allegedly got scared and hid behind a tree but he also says that he had seen his father and uncle in the neighbouring field but he did not make any attempt to join them. This is an unusual conduct because even according to PW-1, the accused persons did not attempt to threaten him or his father PW-2 and uncle PW-6 even though they intervened in the fight which makes the presence of PWs.1 and 2 doubtful. As noticed by the trial court, we also see that there are material contradictions between the evidence of these witnesses and the medical evidence which also adds to the bundle of suspicions as to the presence of this witness.