Judgment:
R.B. Dixit, J.
1. Appellant being aggrieved by the judgment and order of conviction dated 14th May, 1984, passed in Sessions Trial No. 36/82 by the Second Additional Judge to Sessions Judge, Vidisha convicting appellants under Sections 148, 302 read with Section 149 IPC and sentencing them for imprisonment of life under Section 302/149 and further sentencing them for two years' RI and fine of Rs. 500/- under Section 148 IPC, have challenged their conviction and sentence under the present appeal.
2. The prosecution case in brief is that on 17-9-1981 at about 8.00 p.m. when deceased Maharaj Singh was talking with acquitted co-accused Heera Lal, the appellants along with other co-accused persons armed with lathi, farsa, ballam, knife and luhangi came on the spot. Heera Lal caught hold of deceased Maharaj Singh and rest of the accused persons caused injuries to him. When Hari Singh (P.W. 1), cousin of the deceased intervened, he was assaulted with luhangi by Dhan Singh and on his raising hue and cry, Kundan Singh, Ram Singh and Ghuman Singh arrived and the assailants ran away on their arrival.
3. The deceased was brought in a tractor trolley to police station Kurwai where Hari Singh lodged FIR. The deceased was referred for medical examination, but he succumbed to his injuries during the course of his examination. After intimation of the death of the deceased, an offence under Sections 302/34, 148 and 149 IPC was registered. Police agency prepared Panchnama of the dead body and the dead body was sent for post-mortem. Dr. P.N. Kathoriya, who conducted autopsy found following injuries on the body of the deceased:
1. Incised would 2' x 1/2' x 1' above & parallel to right eye brow. Frontal bone was also found fractured.
2. Incised wound 1 3/4' x 1/2' x 1' on left side of face. Left maxilla bone was found fractured.
3. Lacerated wound 1' x 1' x 1/2' on right side of head.
4. Lacerated wound 1/2' x 1' x 1/2' medial aspect of scalp.
5. Lacerated wound 1/2' x 1' x 1/2' on left side of scalp.
6. Lacerated wound 1' x 1/4' x 1/4' on left side of scalp.
7. Lacerated wound 2' x 1' x 1/2' on left side of scalp.
8. Incised wound 1/2' x 1/2' x 1' on right leg.
9. Incised wound 1/2' x 1/2' x 1/2' on left leg.
10. Contusion 1 1/2' x 1/2' x 1/2' on left knee.
11. Incised wound 1/2' x 1/4' x 1/2' on occipital region of head, Occipital bone is seen fractured, laceration under fracture is seen. Brain matter is damaged.
12. Abrasion 1' x 1/2' on anterior aspect of left shoulder.
13. Incised wound 1/2' x 1/4' x 1/2' on lateral aspect of left arm.
14. Abrasion 3' long on lateral aspect of left arm.
15. Multiple abrasions on posterior of left shoulder.
The man died due to damage of brain matter. It may be homicidal.
4. Injuries of Hari Singh were also examined (Ex. P-39) by Dr. P.N. Kathoriya, who found following injuries on his person.
1. Defuse swelling on phalange of right thumb.
2. Contusion 1 1/2' x 1' on anterior aspect of right shoulder joint.
5. Accused were arrested and interrogated. On being informed about the weapons of offence, memorandum of accused persons were prepared and a luhangi was recovered from accused Gyan Singh, farsa from accused Phulla, knife from Sibbu (Ex. P-10), Lathi from Gopi Das (Ex. P-11), Luhangi from Dhan Singh (Ex. P-12), Lathi from Ummed Singh (Ex. P-13), farsa from Bhagwan Singh (Ex. P-14), lathi from Shriram (Ex. P-15), lathi from Pratap Singh (Ex. P-16), a lathi from Udham Singh (Ex. P-17) and a ballam from Bishan Singh (Ex. P-18) were recovered. Blood stained clothes of the deceased were collected (Ex. P-45) and all the seized articles including the weapons were sent for chemical examination. The report of Forensic Science Laboratory, Sagar (Ex. P-48) shows presence of blood on the recovered articles. However, no marks of blood were found on farsa recovered from Bhagwan Singh and on ballam recovered from Bishan Singh.
6. After collecting the medical evidence, recording the evidence of witnesses and effecting seizure and preparation of different panchnamas. The prosecution agency filed challan under Sections 302/34, 147, 148 and 149 and 302 IPC. However, the learned trial Court framed charges under Sections 148, 149 read with Section 302, IPC against all the accused persons. Dhan Singh was in addition also charged under Section 324 IPC for causing injury to Hari Singh with Luhangi. The learned trial Court acquitted co-accused Heera Lal, Shibbu, Gopi Das, Shriram and Udham Singh from all the charges framed against them while convicted appellants under Sections 148, 302 read with Section 149, IPC and in additional also found Hari Singh guilty of the offence under Section 324 IPC and also sentenced him for one year's RI on this count.
7. Appellant accused Phulla died during the pendency of the appeal and, therefore, appeal abated against him.
8. The defence of the appellants was one of the complete denial and false implication out of enmity.
9. The learned Senior Counsel, Shri J.P. Gupta, appearing for the appellants, has submitted that according to the evidence, the cause of death of deceased was due to damage of brain matter. Dr. P.N. Kathoriya (P.W. 17) who had also examined injuries of the deceased when he was alive and found two incised wounds one on right eye brow and left side of the face. Rest of injuries 3 to 7 were lacerated wounds of the scalp. However, when the deceased succumbed to his injuries during the course of this examination, further injuries 8 to 15 were found in addition in his post-mortem wherein injuries 8, 9, 11 and 13 were also incised found situated on left and right legs, occipital region of the scalp and left forearm respectively. It shows that the death was due to assault by blunt weapons which damaged the brain matter. None of the appellants except Pratap Singh was armed with lathi. The learned trial Court has acquitted rest of the accused persons, namely, Heera Lal, Shibbu, Gopi Das, Umed Singh, Shriram and Udham, who were mostly armed with lathis including Shibbu, who was allegedly armed with knife. In the circumstances, it is highly improbable that the appellants alone are responsible for causing death of the deceased. On other hand, it could be presumed that those who may be responsible for causing death of the deceased were acquitted. It is further argued for the appellants that the medical report indicates that except one incised wound on the head, rest of the head injuries were caused by hard and blunt object. However, appellants were armed with deadly weapons like farsa, luhangi, ballam. Thus, the fatal injuries of the deceased cannot be attributed to the appellants. The oral evidence is, therefore, belied by the medical report. In order to appreciate this argument advanced on behalf of the appellants, we have to go through the evidence on record. Except witness Hari Singh (P.W. 1) all other witnesses of the incident i.e., Ghuman Singh (P.W. 2), Bhagwan Singh (P.W. 4), Tulsi Ram (P.W. 11), Prahlad Singh (P.W. 14), Meharwan Singh (P.W. 15) and Ram Singh (P.W. 16) have turned hostile. Independent witnesses of the memorandum and seizure of the weapons had also not supported the prosecution and turned hostile. It is worth noting that according to first information report (Ex. P-1), Kundan Singh, Ram Singh and Ghuman Singh alone had arrived on the spot. However, in addition to these witnesses, prosecution has further added arrival of witnesses Bhagwan Singh, Tulsi Ram, and Meharwan Singh as witnesses of the incident, although they have not supported the prosecution in any way.
10. Now, so far as the evidence of sole eye witness Hari Singh (P. W. 1) is concerned, he had stated that the deceased was assaulted because of previous enmity with the accused persons, who had also assaulted deceased Maharaj Singh some three years before this incident, but he has to admit that the case of previous marpeet was dropped because of compromise between the parties. In cross-examination, the witness had to admit that father-in-law of his sister, Shriram and others were involved in a dacoity committed against accused Heera Lal. A proceeding under Section 107 Cr.P.C. was also initiated against him and accused Pratap Singh besides 2 of 3 other cases are also going on between him and accused Pratap Singh. He could not deny a suggestion that the deceased had forcibly occupied agricultural land of Gopi, kotwar. In view of these admissions, it can be presumed that the deceased had enmity with other persons also and further that there was no immediate cause with the appellants for making an attempt on the life of the deceased.
11. The sole eye witness Hari Singh (P.W. 1) had stated that he was sitting at a distance from the appellants' chabutra while in his first information report, it was mentioned that he was sitting with the deceased on the same chabutra. In his cross-examination, the assault of the deceased was shown at yet another chabutra, situated towards back side of the house. This witness had further admitted that the assailants emerged from the house and first he could not recognize them because of darkness. He then corrected himself by saying that he could identify the assailants in light of lantern. However, in first information report as well as in his police case diary statement (Ex. D-1), there is no mention of any light of the lantern on the spot. According to this witness, no sooner he was assaulted by Dhan Singh, he ran away from the spot and, therefore, could not say as to how and at which place the deceased was assaulted. Other witnesses, who made their appearance later on, had also confirmed darkness on the spot. In the circumstances, it has been argued for the appellants that the deceased had enmity with so many other persons and the actual assailants could not be identified. However, on the basis of enmity of some of the accused persons with this witness Hari Singh and also because of previous enmity with the appellants, they were roped in for the alleged assault. There is no mention in the FIR as well as in police case diary statement of this witness that the accused persons had emerged from behind the house of Heera Lal. In the circumstances, when the assailants are stated to have emerged out of darkness and had assaulted the deceased by surrounding him, meanwhile one of the assailants had also attacked this witness, who ran away towards his house, it cannot be believed that he had a chance to identify each and every assailants together with the weapons with which they were armed.
12. According to Hari Singh, he was assaulted by Dhan Singh with one blow of luhangi. However, in his medical examination, he had received two injuries, but in the next breath, he has denied portion C to C of his FIR (Ex. P-1) wherein it was mentioned that he was assaulted with luhangi while he was trying to save the deceased. He has also denied presence of witness Budha Singh and Kundan Singh on the spot. As mentioned in the FIR as well as in his police case diary statement, he could also not say as to which of the accused had assaulted the deceased on which portion of the body and how many times. In the circumstances, his detailed narration in the FIR as well as in his police case diary statement about different accused persons armed with different weapons and details of the assault, are belied by his own statement as emerged from his cross-examination. It is possible that the deceased might have been assaulted at a different place in a different manner and by different persons. In a decision of this Court rendered in the case of Rewaram Kalloram v. State of Madhya Pradesh, reported in 1977 MPLJ 547, complainant named eight persons in his report, but confined his allegation in his deposition against only three at the trial. The Sessions Judge acquitted two of them and convicted three accused. It was held that the absence in the FIR of the part assigned to the appellant during trial, in the circumstances of the case made evidence of complainant highly doubtful; that as the complainant had adopted the pick and choose method it was unsafe to leave the fate of accused in hands of such person, that there was nothing to distinguish the case of appellant from the other two who had been acquitted and that prosecution could not be said to have established case beyond doubt against appellant.
13. In a decision of the Hon'ble Supreme Court rendered in the case of Birpal Singh v. State of U.P., reported in AIR 1977 SC 2083, trial Court had acquitted all accused persons but the High Court reversed order of acquittal in respect of four accused persons. It was observed that if prosecution story is found doubtful in respect of three other accused persons, their conviction is liable to be set aside.
14. In case of Umashankar v. State of U.P., reported in AIR 1979 SC 1456, enmity between the parties was admitted. In FIR, it was mentioned that the three accused shouted that the deceased should be killed, but the prosecution witness attributed overtact of incitement only to one of the accused. It was held that convict-accused was entitled to benefit of doubt.
15. In case of Ram Narain v. State of Punjab, reported in AIR 1975 SC 1272, where the direct evidence was not supported by the medical evidence, it was pointed out that inconsistency between the medical evidence and prosecution version, the High Court overlooked most of the circumstances which were damaging to the prosecution. It was further observed that in view of these striking circumstances, the High Court should have approached the case with much more care and caution than it has, particularly when a death sentence was involved. While appreciating the evidence of the witness the High Court does not appear to have considered this important aspect, but readily accepted the prosecution case without noticing that the evidence of the eyewitnesses in the Court was a belated attempt to improve their testimony and bring the same in the line with the doctor's evidence with a view to support an incorrect case.
16. In case of Balaka Singh v. State of Punjab, reported in AIR 1975 SC 1962, where in appeal by nine accused persons against their conviction and sentence for an offence of riot with murder, the High Court acquitted four accused persons because of the omission of their names in the body of the inquest report. The delay in sending copy of FIR to the Magistrate also remained unexplained. The prosecution witnesses in their parrot like version implicated even the four acquitted accused equally with the other five convicted accused making absolutely no distinction between one and the other. It is true that the Court must make an attempt to separate grain from the chaff, the truth from the falsehood, yet that can only be possible when the truth is separable from the falsehood. Where the grain cannot be separated from the chaff because the grain and the chaff are so inextricably mixed up that in the process of separation the Court will have to reconstruct an absolutely new case for the prosecution by divorcing the essential details presented by the prosecution completely from the context and the background against which they are made, then this principle will not apply.
17. In so far as conviction based on testimony of sole witness is concerned, the Apex Court in case of Karunakaran v. State of Tamil Nadu, reported in AIR 1976 SC 383, observed that where an accused is going to lose his life in a serious charge of murder, it is only necessary that the Court should be circumspect and closely scrutinise the evidence to come to an unhesitating conclusion that the eye witness on whose testimony the conviction is based is absolutely reliable. Where the sole witness on whose testimony the conviction was based had himself given the FIR and there were serious departures in his evidence from the version given in FIR and the evidence was contradicted by the medical evidence, the said witness was wholly unreliable.
18. The Apex Court further made it clear in case of Bhola Singh v. State of Punjab, reported in AIR 1999 SC 767 that in allegations against accused of being armed with sharp weapons like Gandasa and Ghop while post-mortem report showing that assault was made from the blunt side of the weapon, it is unlikely that person armed with sharp edged weapon would only use its blunt side. Omission on part of eye-witnesses in mentioning nature of weapon used and their version that accused had used blunt side of weapon was set out to fit in with post-mortem report. This makes their presence on scene of occurrence doubtful. In the circumstances, the accused is liable to be acquitted. Before acting upon testimony of sole witness, it is to be found that his evidence is cogent and praise-worthy and further well corroborated by medical evidence.
19. In view of the material contradictions between FIR, police case diary statement and evidence of sole eye witness Hariram of this case, together with discrepancy in ocular and medical evidence regarding weapons used and injuries found on the body of the deceased, we are of the considered opinion that the possibility of deceased being assaulted by some unidentified assailants, cannot be ruled out. In the circumstances, where prosecution has failed to establish the offence against the appellants, with reasonable certainty, they deserve to be awarded benefit of doubt.
20. For the reasons stated hereinabove, the appeal succeeds and is allowed. The conviction and sentence of appellants is set aside.