Judgment:
A.R. Tiwari, J.
1. By this judgment, we are disposing of Criminal Appeal No. 244/84 as well as Criminal Appeal No, 243/84 because they arise out of the judgment rendered by the learned First Additional Sessions Judge, Ujjain in Sessions Trial No. 14/84 on 17-5-1984.
2. Dissatisfied by their conviction under Section 302/149 of the Indian Penal Code and sentence of imprisonment for life thereunder, the ten convicts (Chandarsingh, Nihalji, Anandilal, Manaklal, Kanhiram alias Kanhaiya, Bapusingh, Dulesingh, Laxman, Rameshwar and Jatalsingh) have preferred Appeal No. 244/84 and the remaining two convicts (Bheru and Prema) have filed Criminal Appeal No. 243/84, assailing the conviction and sentence awarded to them as aforesaid by the judgment noted above.
3. Briefly stated, the prosecution case was that on 18-12-1983 at 1.30 p.m. the deceased Umrasingh and one Ramesh (P.W. 6) were sleeping the KHALA (threshing-flour) belonging to the deceased. All the appellants armed with different weapons together came out from the house of the appellant Prema and mounted attack on Umraosingh. Ramesh tried to intervene, but he too was assaulted by some of the appellants. Kamlabai (P.W. 2) and Shyamubai (P.W. 3) were working in their fields. Kamlabai saw the appellants moving towards the Khala of Umraosingh. On this, she rushed to inform Balaram (P.W. 1) the elder brother of her husband, in his Khala. She returned along with Balaram when the appellants were seen coming back to the house of Prema. After sometime, Chowkidar Peera (P.W. 5) and members of the family of Umraosingh reached the spot. Peera and Balaram went to the Police Station for lodging the report where Balaram lodged the First Information Report (Ex. P/1). Umraosingh seems to have survived only for ome time during which he is said to have disclosed the three names i.e. Kanhaiya Nihalji and Chandar. Thereafter, he became unconscious and eventually succumbed to the injuries. Dr. B. C. Sokhiya (P.W. 4) undertook to post-mortem examination and gave the post-mortem report (Ex. P/2). He found on the body of the deceased Umraosingh following antemortem injuries opining the cause of death being the shock due to haemorrhage:
1. Incised wound on left side of head just above left parietal eminence. 4' x 1/4' x bone deep clotted blood present.
2. Incised wound on back on left supra scapular region 1.5' x 1/4' x 1/4' clotted blood present.
3. Incised wound on posterior aspect of left fore-arm 1 1/2' x 1/4' x 1/4' clotted blood present.
4. Incised wound on posterior aspect of left forearm 4' x 2' bone deep, clotted blood present.
5. Oblique incised wound on thinear eminence of left hand 2' x 1' x 1', clotted blood present.
6. Incised wound posterio-lateral aspect of left thigh lower one third, 3' x 1.5' X 1' clotted blood present.
7. Incised wound posterior aspect of left thigh lower one-third 4' x 3/4' x 1/4', clotted blood present.
8. Incised wound on posterio-lateral part of left knee 5' x 3' in pieces. Lower end of femur and upper part of left bone are cut and separated, tendons muscles blood vessels nurves were cut, clotted blood present.
9. Incised wound transverse on posterio-lateral part of left food 2 1/2' x 1' x 1' talus bone cut-- Clotted blood present.
10. Incised wound on- medial aspect of middle of left leg 2' x 1' 1/2-- clotted blood present.
11. Oblique incised wound just above the right medial malleolus of right leg 2' x 3/4' x 1' clotted blood present.
12. Incised wound on medial aspect of right anklejoint just below the medial melleolus 2 1/2' x 1/2' x 1' bone cut, clotted blood present.
13. Incised wound on medial aspect of right foot 4' x 1/4' x 1/4'.
14. Oblique incised wound on anterio-lateral aspect of right leg 2' x 1', clotted blood present.
15. Incised wound on posterio-lateral aspect of right leg 4' x 2' x 3', bone tibia and febula were cut. Clotted blood present.
16. Incised wound on right thigh 2' x 1/4' x 1/4', clotted blood present.
17. Incised wound on right side upper arm posterior 1 1/2' x 1' bone-deep, clotted blood present.
18. Incised wound oblique in direction just above the injury No. (17) 1/4' x 1/4' x 1/4'.
19. Two incised wound on' the medial aspect of right upper arm l' x 1/4' x 1/4' and 1/2' x 1/4'.
20. Multiple small abrasions on front of right side Knee, clotted blood present.
21. Abrasion on right side fore-arm 3' x 1/4' clotted blood.
22. Abrasion on right shoulder 1 1//2' x 1.
Rameshwar alias Ramesh (P.W. 6) too was examined by Dr. J. G. Bopte (P.W. 13) who opined that he sustained a lacerated wound and one contusion, both on right forearm and one abrasion on left forearm as per report Ex. P/32. The appellants were arrested on different dates i.e. 20-12-1983, 21-12-83 and 22-12-83. Weapons were seized as per the information supplied under Section 27 of the Evidence Act. An identification parade was held on 4-1-1984 and proceedings were recorded in Ex. P/11. Spot map was prepared. Bloodstained earth and clothes were also seized. The report (Ex. P/44) from Chemical Examiner was obtained. After investigation, challan was filed.
4. The charge under Section 302 and in the alternative under Section 302/149 of the Indian Penal Code with regard to the deceased Umraosingh and charge under Section 323 and in the alternative under Section 323/149 of the Indian penal Code with regard to Rameshwar alias Ramesh (P.W. 6) were framed against all the appellants to which they pleaded not guilty. It is strange indeed that the impugned judgment is totally silent about appreciation and finding with regard to the charge under Section 323 or 323/149 of the Indian Penal Code. It is asserted that the appellants have been falsely implicated due to pre-existing enmity and group rivalry and that the entire case against them is fabricated being born of an evil design.
5. We have on 16-7-1992 heard senior counsel Shri J. P. Gupta assisted by Shri R. S. Garg learned counsel for the appellants in both the appeals as also Shri A. S. Kutumbale, learned Government Advocate for the State and have perused the record carefully.
6. Shri Gupta, learned counsel for the appellants has directed manifold attack, scathing in nature on the prosecution case as a whole and formulated the points of submissions as under :--
a) All male members of the family have been roped in due to enmity and group rivalry through omnibus allegations. In such a case particularisation of assailant and weapon was necessary.
b) Independent corroboration was essential. None from the village is put is the witness-box particularly when those examined had serious animus to implicate the appellants falsely. So-called dying declaration naming three appellants is also unnatural and a concocted piece.
c) Delay in identification parade remains unexplained and it is totally worthless when there is no descriptive marks as regards stature, physique, colour etc. Then the identification parade is rendered undependable.
d) There is no proof from the doctor as regards the nature of injuries being sufficient in the ordinary course to cause death. Hence, even otherwise charge under Section 302/149 of the of the Indian Penal Code was not sustainable.
e) The evidence furnished by the witnesses is unnatural and unreliable.
f) The Sessions Court has not appreciated the evidence in proper perspective and the conclusions are thus, perverse and vitiated.
7. Shri Gupta placed reliance on the following authorities in support of the contentions advanced by him.
i) Pandurang v. State of Hyderabad, AIR 1955 SC 216 : (1955 Cri LJ 572); ii) Lalaram v. State of U.P., AIR 1990 SC 1185 : (1990 Cri LJ 1205); iii) Budhwa alias Ramcharan v. State of M.P., AIR 1991 SC 4 : (1990 Cri LJ 2597); iv) Satyanarayan v. State of M.P., AIR 1972 SC 1309 : (1972 Cri LJ 881); v) Bali Ahir v. State of Bihar, AIR 1983 SC 289 : (1983 Cri LJ 434); vi) Wakilsingh v. State of Bihar, AIR 1981 SC 1392 : (1981 Cri LJ 1014); vii) Jayaraj v. State of Tamil Nadu, AIR 1976 SC 1519 : (1976 Cri LJ 1186); viii) Ashok v. State, 1982 Weekly Note 274; ix) State v. Bhaivalal, 1984 Weekly Note 27; x) Ramsingh v. State, 1983 Weekly Note 269.
8. On the other hand, Shri Kutumbale, learned Govt. Advocate supported the judgment and urged that the conclusions are well supported from the evidence available on record and deserve to be upheld.
9. We have carefully considered the rival contentions. We have scanned the evidence and have kept in mind the principles of law attracted in this case. In fact factual matrix lies in a narrow compass and legal position in such cases is undoubtedly uncomplicated.
10. At the very outset we are constrained to observe that omission of finding and conviction on charge under Section 323 or 323 /149 of the Indian Penal Code itself delivers the dent, almost beyond repair, on the conclusions of guilt as regards the charge under Section 302/149 of the Indian Penal Code because Ramesh is said to be a principal witness and alleged receiver of injuries in the same incident. This factor demonstrably seems to be fatal particularly in a case involving the fate of as many as 12 persons, among whom four are in their teens and two are below 21 years, on a capital charge.
11. It is not disputed that the appellants of Criminal Appeal No. 244/84 are male members of one family civil design for their implication on omnibus allegation appears to be discernible in order to see that all of them are incarcerated, and the entire family is left to the lurch. The appellants Chandarsingh, Nihalji, Kaniram and Bapusingh are real brothers. Dulesingh and Manaklal are the sons of Chandarsingh Auchdilal and Laxman are the son of Nihalji. Rameshwar is the son of Kaniram and Jatalsingh is the son of Bapusingh. The appellants Bheru and Prema of Criminal Appeal No. 243/34 are father and son hailing from same village and are said up to be near relatives of the appellants (para 17 of P.W. 1).
12. It is also not denied that there was pre-existing enmity (para 11 of P.W. 1), paras 7 and 11 of P.Ws.- para 10 of P.W. 2). Some of the appellants were admittedly witnesses in a case of murder of Kesharsingh son of the present appellant Chandarsingh, in which the deceased Umraosingh and one another were accused persons. This fact is also available from the answer to a question recorded under Section 313 of the Code of Criminal Procedure (See statement of Prema). It is reiterated by the appellants even when questioned under Section 313 of the Code of Criminal Procedure that they have been roped in due to enmity. It is also an admitted fact that the witnesses are related to the deceased. P.W. 1 Balarm is the elder brother of the husband of witness Kamlabai (P.W. 2). (P.W. 3) Shyamubai is the niece of the deceased. P.W. 2 Kamlabai is the mother of P.W. 3 (para 1 of P.W. 2). P.W. 6 Rameshwar alias Ramesh was in jail for some time along with the deceased Umraosingh and happened to be very close to the family of the deceased. Moreover, he has a bad load of antecedents against him (para 5 of P.W. 6). Peera Chowkidar (P.W. 5) is the staunch enemy of the appellants as his both the sons were arrested along with Balaram P.W. 1 and the deceased (paras 7 and 11 of P.W. 5) in the case of murder of Kesharsingh, the son of the appellant-Chandarsingh. This witness is said to have gone with P.W. 1 to lodge the First Information Report and this perhaps explains how the names of the appellants figure in the First Information Report without any specification of role or particularisation of weapon as such and why the apparent fabrication of the case begins. P. W. 5 and P. W. 1 seem to be the real villains of the piece. Although it is laid down by Kalki's case State of Rajasthan v. Smt. Kalki, AIR 1981 SC 1390 : (1981 Cri LJ 1012) the 'related is not equivalent to interested' it is trite law that a very close and cautious scrutiny of the evidence of such witnesses though not discardable just on the ground of relationship becomes necessary and in appropriate cases corroboration from independent source ought to be insisted upon so as to lend assurance to the story.
13. It may be pointed out that brief statement of the deceased, pressed into service as dying declaration, was not accepted even by the trial Court as dying declaration, (para 53). It is also noteworthy that weapons seized from the appellants in pursuance of the information under Section 27 of the Evidence Act are not held to be connecting the appellants with the alleged crime (para 53).
14. The fate of the case thus, hinges on the credibility or otherwise of the ocular versions of P.W. 1 Balram, P.W. 2 Kamlabai, P.W. 3 Shyamubai, P.W. 5 Peera and P.W. 6 Rameshwar. The relevant portions of these witnesses were read out to us. We have also gone through the statements and find that the criticism levelled against them is not wholly unjustified. P.W. 6 Rameshwar who claims to be an injured person in the same incident begins his statement in the Court as 'I do not know Umraosingh' (para 1). We may recall here that it is he who claims to be sleeping in the KHALA belonging to the deceased Umraosingh. He fails to identify at least three appellants (Prema, Bheru and Manka) even in the delayed identification parade (para 4) held by P.W. 12 Surajmal, Naib Tahsildar on 4-1-1984. He asserts in the Court that he was assaulted by Anand Singh with a Farsa (para 10). This was not said by him in his police statement marked Ex. D/5. P.W. 3 Shyamubai, however says that P.W. 6 was assaulted by Jatalsing. The medical report (Ex. P/32), however, does not confirm any injury by Farsa. Moreover, he did not state any marks of description on the basis of which, he may properly identify the assailants (para 21). There is no explanation either with regard to delay of 15 days caused in holding the test identification. In short, P.W. 6 does not inspire confidence.
15. P.W. 1 Balram and P.W. 5 Peera, both had an axe to grind and had positive animus to implicate falsely (para 11 of P.W. 5). On going through their statements, we find that they do not appear to be the witnesses of truth their versions, when subjected to close scrutiny, do not portray rustic simplicity, but have an indelible stamp of planned deceit and design. P.W. 2 Kalabai and P.W. 3 Shyamubai are also found to be equally unreliable. The First Information Report does not show particularisation of weapons. P.W. 2 attempts to do so (para 1) only to be contradicted by P.W. 1 as also by P.W. 3. If incident was witnessed, then where was the occasion to enquire from the deceased (para 2 of P.W. 1)? This means that the claim of being an eye-witness or a material witness for that matter is false. State v. Indoriva (1980) 2 Weekly Note 185. The deceased named only three. The witnesses foisted the case on twelve. We have carefully read the statements of all these witnesses ourselves. On this kind of evidence, we think, it is highly dangerous to sustain the conviction of as many as twelve persons when there are strong circumstances indicative of false implication. There is no way of separating the grain from the chaff inasmuch as even the overt act attributed to Anandsingh by P.W. 6 and Jatalsingh by P.W. 3 is falsified by the medical report (Ex. P/32). We do not find any serious effort on the part of the Court below to make even an attempt to shift the grain from the chaff and even if we were to assume that Court did make such an attempt then we can say that in so doing the Court has accepted the chaff and rejected the grain. We have, thus, no hesitation in rejecting the statements of these principal witnesses as thoroughly unreliable and untrustworthy.
16. There is yet another circumstance. None is arrested before 20-12-83. The incident is of 18-12-83. The First Information Report is said to have been registered at 3.00 p.m. on 18-12-1983. The defence has seriously challenged the time of death as also criticised the delay in registration of the offence. In these circumstance. Particularly it was obligatory on the part of the prosecution to prove prompt compliance of Section 157 of the Code of Criminal Procedure. This has admittedly been not done. This therefore leads to an inference that the First Information Report is anti-timed and has been brought into existence after duo deliberation about incorporation of the names of the appellants therein. How else can such a doubt be dispelled? It is pertinent to refer the case of Chhakki reported in Chhakki v. State, 1990 JLJ 712 which dearly laid down that, the First Information Report becomes doubtful when compliance of provision of Section 157 of the Code of Criminal Procedure is not shown. In these circumstances, considerable doubt about geanuineness of the First Information Report is thus, cast. In act the First Information Report in such cases becomes suspicious and is rendered rejectable.
17. It is brought on record that the decoded had a chequered history of criminal activities. Such a person can be the easy target of many. Possibly, he may have been be-laboured by unknown person who may have slipped away after the assault and it is just possible that after due deliberation, the case is foisted on the appellants on the basis of pre-existing enmity and actue faction. The learned Additional Sessions Judge does not seem to have given any effective answer to the infirmities pointed out and also noticed by us in this case. At times, one is obliged to prone as to why witnesses showed the proclivity to depose that why rather than only appreciating as to what they have deposed. Little scrutiny to our mind, would have demonstrated as to how the entire edifice of prosecution case was bound to collapse and brittle into pieces. We fed that the learned Addl. Sessions Judge has misdirected himself and misappreciated the facts.
18. The statements of the principal witnesses are clearly conglomeration of contradictions. Then seems to be well designed attempt of pettifoggery. In this context, we recall the utterance of Shakespear's Macbeth 'the attempt and not the deed confounds us' We have lifted the veil and probed the matter. The conclusions as recorded by the trial Court are not warranted from the evidence adduced in the case. The approach does not seem to be in accord with judicial principles to be applied in appreciating the criminal cases.
19. When such is the fact situation. We find it unnecessary to deal with the authorities referred to above. In our considered opinion, at bottom it is question of fact in every criminal case and we have unhesitatingly reached the conclusion that the prosecution story does not inspire confidence and has no stamp of credibility. We find that the tendency to rope in all male members of the family in an urge to wreck vengeance is clearly visible hereto. However, the law is not so patrified as to be unresponsive against such designs although rudely conceived and cruelly executed.
20. It is equally futile to answer the question posed about the nature of offence when its authors are not ascertainable. 'We may, however, observe that one would have expected couple of independent witnesses from the village of some size in such a case. The investigator keeps mum on this vital aspect and offers no explanation either.
21. The law has to keep promise to justice. In that pursuit, we have bestowed our anxious consideration on all relevant aspects. Our answer is then sure and certain.
22. For the foregoing reasons, we are obliged to give benefit of doubt to the appellants and thus, allow both the appeals and set aside the conviction and sentence awarded to each of the appellants in both the appeals and acquit them of all the charges levelled against them. They are on bail. Their bail bonds are discharged.
23. Let a copy of this judgment be placed on the file of Criminal Appeal No. 43/84.
24. Before parting with the case, we feel constrained to record our displeasure on the serious infirmities of not recording any finding on the charge under Section 323 or 323/149 of the Indian Penal Code though framed. No Court engaged in dispensation of justice can afford to be so unmindful and non-chalant and it is not expected of it to deliver such a sketchy judgment and that too on a capital charge. Let a copy of this judgment be, therefore, sent to Shri B. L. Jain, the then learned First Addl. Sessions Judge, Ujjain immediately wherever he may be for his future guidance.