1 HIGH COURT OF MADHYA PRADESH: JABALPUR, BENCH AT INDORE. ( D.B.- Hon'ble Shri Justice P.K.Jaiswal and Hon'ble Mrs. Justice S.R. Waghmare) Criminal Appeal No.1038/2000 1. Bharatram @ Bharatsingh s/o Harisingh 2. Kamalsingh S/o Harisingh 3. Sawantsingh s/o Harisingh All r/o Lasudliya,P.S. Baiora, District Rajgarh (M.P.) ....Appellants vs. State of Madhya Pradesh through police station Baiora, District Rajgarh (M.P.) ...... Respondent/State ________________________________________________ Shri Jai Singh, learned Senior Advocate with Shri Rajesh Chouhan, Advocate for the appellants. Shri Amit Singh Sisodiya, learned Panel Lawyer for the respondent/State. ________________________________________________ JUDGMENT (Passed on 16/9/2011) Per Mrs. S.R. Waghmare, J. This appeal has been filed by the accused appellants Bharatram @ Bharatsingh, Kamalsingh Sawantsingh being aggrieved by judgment dated 6/9/2000 passed by the Additional Sessions Judge, Baiora, District Rajgarh in Sessions Trial No.63/1995 convicting the appellants for offence under Section 302/149 of the IPC and sentencing them to undergo rigorous imprisonment for life with fine of Rs.1,000/- each and in case of default of payment of the fine, the appellants were to undergo additional rigorous imprisonment of three months each 2 and for offence under Section 148 of the IPC they were to undergo one year's rigorous imprisonment each. In case of default of payment of the fine, they were to undergo additional rigorous imprisonment of three months each. 2. Brief facts of the prosecution story are that on the date of incident i.e.19.9.1994 at night 8.30 p.m. the complainant Dayaram was sitting with his wife and son in the house situated at village Lasudliya, when his neighbour Ramchandra Sahu, who was living nearby, invited Dayaram to come to receive 'prasad' on occasion of some religious pooja that was performed at his home. Thereafter Dayaram's son Surjansingh on finishing dinner went to accept the prasad at Ramchandra Sahu's house. Then suddenly they heard shouts indicating that somebody was being attacked. Thereupon complainant Dayaram along with his son Chandarsingh and his wife Ratanbai ran to the house of Ramchandra Sahu and found that in the dalan of the house of Ramchandra Sahu, the accused Harisingh, Sawantsingh, Kamalsingh and Chainsingh, who were wielding the farsis were assaulting Surjansingh and accused Bharatram was standing in the doorway holding a gun and Surjansingh was shouting for help. Whereupon Moharsingh, Vijaysingh, Radheshyam, Ramsingh and others came from the village and on being 3 challenged the accused fled away from the spot after killing Surjansingh. It was also alleged that one year prior to the incident accused Bharatram was annoyed by the fact that Surjansingh had grappled with his wife and he held a grouse against Bharatram and his family. And the complainant Dayaram with the help of Vijaysingh, Moharsingh, Narayansingh, Vijaysingh Dangi chowkidar carried his son Surjansingh from the spot in a bullock-cart for lodging the report. On the way near the hotel of one Dinesh, Surjansingh succumbed to injuries. However, along with the dead body complainant Dayaram reported at the police station Baiora in the night itself, on 29/9/1994 at 1.00 a.m. The FIR was lodged for offence under section 147, 148, 302/149 of the IPC and the crime was registered at No.389/1994. During the investigation the spot map was prepared by the police. Samples of simple and controlled earth were collected and merg panchnama (autopsy) report was also prepared. The statements of the witnesses were recorded and the accused were duly apprehended. From the accused farsis and other weapons were recovered. On the offence being registered, the accused were duly committed for trial. 4 3. The accused abjured their guilt and stated that they have been falsely implicated in the matter. They did not examine any witness in their defence. However, the trial Court on considering the evidence convicted and sentenced the accused appellants as herein above indicated. Hence, the present appeal. 4. It is pertinent to note that accused Harisingh has already expired during the pendency of this appeal and hence, the appeal against him stood abated, whereas two other co-accused Vikramsingh and Chainsingh, approximately 13 to 14 years of age, have been dealt with by the Juvenile Court. This appeal is therefore, considered for accused appellants Bharatram, Kamalsingh and Sawantsingh. 5. Counsel for the appellants has vehemently urged that primarily the prosecution has been unable to prove its case since the medical evidence on record is contrary to eye-witness account of P.W. 14 Chandarsingh, who is the real brother of the deceased Surjansingh. Counsel urged that, according to the prosecution case, his ocular testimony is direct contradiction to that of P.W. 16 Dr. D.K. Punjabi,who has performed the postmortem and vide postmortem report Ex.P/27 certified that the deceased Surjansingh has received 9 incised injuries and 5 the injury on the head in the right parietal region was the fatal injury. Whereas P.W.14 Chandarsingh has submitted that when he arrived at the place of occurrence all the accused were assaulting the deceased with lathis and hence, they could not be held responsible for causing the aforesaid injuries. 6. Then under the circumstance, Counsel placed reliance on Raja Ram vs. State of Rajasthan: (2005) 5 SCC 272 whereby the Apex Court had held that when the evidence of the prosecution witness did not support the prosecution case and the said witness is not declared hostile, then under the circumstance the defence can rely upon evidence of such witness and it would be binding on the prosecution. 7. Moreover, Counsel for the appellants has stated that it was an admitted fact that all the eye- witnesses have stated that accused Bharatram was holding the gun and standing in the doorway and that beyond this fact and his mere presence on the spot of occurrence, no other overt act is attributed to him. Counsel for the appellants has further urged that on this ground alone, the sentence of appellant Bharatram was suspended by the Court way back in the year 2000. 6 8. Counsel for the appellant has vehemently urged that keeping in view the evidence of P.W. 14 Chandarsingh, it was also necessary to establish firmly that co-accused Kamalsingh and Sawantsingh were participating in the assault actively, since they have been implicated on the basis of omnibus statements of the related witnesses with the aid of Sections 148 and 149 of the IPC, whereas the prosecution has nowhere established the fact that these two accused/appellants had come on the place of occurrence fully armed with lethal weapons with the common intention to murder Surjansingh. In fact, the trial Court has, for conviction of the accused/appellants relied on P.W. 11 Dayaram, P.W. 12 Ratanbai and P.W. 14 Chandarsingh, the father, mother and brother of deceased respectively and moreover, they are interested witnesses. Whereas none of the other ocular witnesses have supported the prosecution story. He further urged that these interested witnesses were also not reliable, their testimonies are also full of material omissions and contradictions. 9. Counsel for the appellants further urged that the prosecution has also been unable to establish the place of occurrence. Then under these circumstances Counsel stated that suspicion however, strong cannot 7 take the place of proof and since there was no concrete evidence on record to convict the present appellants, he prayed for setting aside the impugned judgment of conviction regarding the appellants. 10. Counsel for the respondent/State, on the other hand, has fully supported the impugned judgment of the trial Court and has stated that father, mother and brother of the deceased Surjansingh were relied on then it cannot be said that their testimony be discarded since they were interested witnesses. Counsel further submitted that the evidence on record was supported by the testimony of P.W.6 Narayansingh, P.W. Modsingh, P.W. 8 Vinod Kumar Sharma, P.W. 9 Ramsingh and P.W. 10 Vijaysingh; so also P.W. 17 Vijaysingh s/o Hazarilal. All these witnesses have categorically admitted that the accused/appellants had come on the place of occurrence fully armed with lethal weapons, although some them had turned hostile in Court. He urged that some of these witnesses are treated as res gestae witnesses, they had come on the place of occurrence immediately after the murder was committed and saw the dead body of Surjansingh lying in pool of blood. Under the circumstance, the homicidal in nature of death of Surjansingh cannot be denied. 8 11. Counsel for the respondent/State placed reliance in the case of Amerika Rai and others vs. State of Bihar: 2011 (2) Supreme 162 (Supreme To- Day) to indicate that the guns are normally not brought to the place of occurrence for making a show. The exhortation to bring out the gun definitely spoke about guilty mind of the accused and the Apex Court had held in the said case that at least insofar as these persons were concerned, their presence and their active participation would make them guilty under Section 149 of the IPC. Counsel stated that the impugned judgment of the trial Court is based on valid and cogent reason and proper marshalling of evidence. The medical evidence of Dr.D.K.Punjabi, P.W.16 also firmly established the fact that the death had occurred due to fatal injury on the head and considering the fact that all the accused/appellants except Bharatram were carrying farsis (sharp edged axe), then under the circumstance, there was no need to set aside the conviction of the appellants. Hence, Counsel prayed for dismissal of the appeal. 12. We have bestowed our anxious consideration to the facts and the evidence on record and the above submissions. We find that for the proper assessment of 9 the case it is essential to place certain facts on record. Appellant Harisingh has already died during the pendency of the appeal. Out of the remaining three appellants, appellant Bharatram @ Bharatsingh has been unanimously declared by all the ocular witnesses that he was merely holding the gun and standing in the doorway and no other role has been assigned to this accused. 13. Moreover, if the ocular testimony of P.W. 11 Dayaram, the father of the deceased is considered, we find that his testimony is at variance with the FIR (Ex.P/23) filed by him. He has stated in the FIR Ex.P/23 that Ramchandra Sahu had come to his house to invite them to receive 'prasad' at his house. However, in Court he has denied having made this statement at the time of recording the FIR and he has also denied having made the statement before the police under Section 161 of the Cr.P.C. So also another important fact that cannot be marginalized is that this witness Dayaram P.W. 11 has stated that he was at his house with wife Ratanbai P.W.12 and son Chandarsingh P.W. 14 when he heard shouts coming from the house of Ramchandra Sahu and all of them thereafter went to the place occurrence. Whereas indirect contrast P.W. 14 Chandarsingh, his son, has 10 stated in Court that he was already present at the place of occurrence along with deceased Surjansingh and the accused were in the Krishna temple attending the 'Katha'. According to the FIR Ex.23 and the case diary statements of witnesses, Chandarsingh has also gone to the place of occurrence later, whereas the incident has occurred in front of the house of Ramchandra. So also, we find that none of the other prosecution witnesses Radheshyam P.W. 5, Narayansingh P.W. 6, Modsingh P.W. 7 etc. have supported the fact that the accused/appellants were armed with lethal weapons or had caused the above mentioned incised injuries, some of them have even denied their case diary statements and have been declared hostile in Court. 14. We, therefore, find that when all these facts are considered in juxtaposition with the testimony of Chandarsingh P.W. 14 then it is directly in contradiction. He has stated that all the accused were assaulting his brother with sticks (Lakdi) , whereas none of the injuries as certified by Dr. D.K. Punjabi P.W. 16 could have occurred by a hard and blunt object. Then relying on Raja Ram (supra) the prosecution would be bound by the statements of this witness since he has not been declared hostile by the Court. 11 15. Resultantly, summing up these facts, we find that although it is trite to state that the evidence of interested or related witnesses cannot be discarded merely because they are relatives of the deceased and their evidence can be relied on for conviction yet such evidence must be clear, cogent and un-controverted. 16. In the present case, we find from the ocular testimony of P.W.11 Dayaram, the father P.W.12 Ratanbai, the mother and P.W. 14 Chandarsingh, the brother of deceased respectively that there are deviations and improvements in the testimony of these witnesses, as already noted above, and the circumstance thus, mitigate against the credibility of these ocular witnesses and its well known that close relatives of the deceased would not be averse to implicate innocent persons to seek justice. The quality of the evidence of ocular and related witnesses should be of sterling quality and should unerringly pointing towards the guilt of the accused. We also find from the testimony of these witnesses that the common intention to commit murder of Surjansingh by all the accused/appellants has also not been clearly established by the prosecution. The trial Court had erred in convicting the accused/appellants Kamalsingh and Sawantsingh on the basis of omnibus 12 statements of these three ocular witnesses and hence, we hold that offence under Sections 148 and 149 of the IPC cannot be said to be made out against the appellants. 17. We find that mere suspicion however, strong or probable it may be, is no effective substitute for the legal proof required to substantiate the charge and the Apex Court has always cautioned that graver the charge, greater should be the standard of proof required. 18. Ex-consequentii, we find that the prosecution has miserably failed to prove its case beyond all reasonable doubt against the appellants. In this view of the matter, we allow this appeal and the conviction and sentence of the appellants under Sections 148 and 302/149 of the IPC passed by the learned trial Court are hereby set aside. The appellants are on bail, their bail and surety bonds stand discharged. 19. Let a copy of this judgment along with its record be sent to the Trial Court for compliance, under intimation in writing to this Court. (P.K. Jaiswal) (Mrs. S.R. Waghmare) Judge Judge moni