Case: Radha Kishan Vs. State of Madhya Pradesh

Govind and Sobaran have died in police encounter during the pendency of trial. The trial then proceeded against Radhakrishan, theonly.(2) The deceased Rajaram was resident of village Indergarh. He was related asto Ram Kali.Kilol Singh, PW1is the son of Ram Kali. According to the prosecution, there was another brother of the three accused persons, who is said to have been killed in a police encounter and the accused persons suspected that Rajaram was instrumental in the death of their brother. On 29.10.1996 at about 10.00 a.m., Kilol Singh,and Ram Kali,were on their field, which is situated on the way which leads from Indergarh to Pachokhara. Kilol Singh was making channels for irrigating the crop standing in his field. Ram Kali was collecting small branches of trees for use as fire wood. At this point of time they saw the three accused persons forcibly dragging Rajaram on the way. They were coming from the side of Indergarh and moving towards Pachokhara. A towel was tied around the neck of Rajaram and held by the accused persons. The three accused were armed with country made pistols. When these persons reached near the field of Ram Kali and Kilol Smgh, Rajaram asked for water. The accused persons prevented Ram Kali from giving water to Rajaram The accused persons sarcastically told Rajaram thatwould be available to him a little afterwards. Thereafter the accused persons took away Rajaram Having seen Rajaram being so taken away Kilol Singh,rushed to the village and contacted Munni Patel, who accompanied him to the police station where FIR of the incident was lodged at 10.30 a.m The police swung into action and set out in the search of Rajaram However, it was at about 10.00 p.m. when dead body of Rajaram was found in the outskirts of village Indergarh at the place which is known as Pachokhara. The dead body had multiple injuries on its person. It was removed to the hospital. Postmortem was conducted by Dr. N.R. Jatav,The following injuries were found on the dead body of Rajaram:1 Ligature mark 2 5 cm in width well defined and slightly depressed situated low down on his neck below the thyroid cartilage. Little lacerated of muscle on adjacent to the mark of lecture was present2 Bruise 5 cm x 2 cm on the exterior surface at the lower 1/2 of the right forearm of radius ulna region present3 Contusion 4 cm x 2 cm on the right zefgomatic region4 One stab 1/2 cm x 1/2 cm x 3 cm on the left side of upper side of the right arm5 One stab 1/2 cm x 1/2 cm x 4 cm on the upper part of the lateral side of left arm6 One stab wound cm 1/2 x 1/2 cm x 3 cm lower part of lateral side of left arm7 One stab wound 1/2 cm x 1/2 cm x 4 cm on the posterior side of the upper part of right thigh8 One abrasion 3 cm x 1/2 cm on the middle of the forehead(3) All these injuries werein nature. In the opinion of Dr Jatav, the cause of death was asphyxia due to strangulation The postmortem was performed by Dr. Jatav in the presence of Dr. A.K. Upadhyay(4) The case hinges on the testimony ofKilol Singh, PW1and Ram Kali,The trial court and the High Court have believed the testimony of both these witnesses to held proved the incriminating circumstance of the accused and the deceased having been last seen together. There is yet another witness Bihan Lal PW2, who also according to the prosecution, had seen the accused persons dragging the deceased in the same manner as was seen by Ram Kali and Kilol Singh. Bihan Lal turned hostile and did not support the prosecution He admitted that although his field is situated near the field of Kilol Singh, but he had not seen the deceased being dragged or carried away by the accused persons.

Reasoning:
(8) There is a material contradiction in the testimony of Ram Kali,over her police statement. When examined by police under section 161 Cr.P C , she had stated that the accused persons and Rajaram had sat down below the babool tree near her field and then she had talked to Rajaram. When confronted she denied having made such a statement. Contradiction in her police statement has been proved by the investigating officer. It appears to be highly unnatural so far as Ram Kali is concerned that having seen herbeing taken away by three culprits in such circumstances in which a serious harm to Rajaram could be clearly apprehended she did no. speak even to her son, who was present there itself and did not tell him what she had seen.(9) Thus, we are left with the sole testimony of Kilol Singh,who is related with the deceased and whose relationship with the accused persons was certainly strained since before the incident in as much as the accused persons were suspecting Rajaram to have been instrumental in causing the death of their brother at the hands of the police. A perusal of the site plan shows that the deceased was forcibly carried away by the accused persons for a distance of few kilometres on the village path, which is surrounded by fields of different villagers. The fields are all cultivated andat the time of the incident crops were standing thereon. Ordinarily the villagers would be on their fields watching and guarding their crops. No effort appears to have been made by the investigation to find out and record the statements of such other witnesses, who might have seen Rajaram being taken or dragged away on the village path situated amongst the fields of the villagers. No person from Indergarh, where Rajaram used to live and wherefrom he was kidnapped by the accused persons, has been interrogated during investigation or examined in court. On such evidence it is difficult to draw an interference that the deceased was last seen with the accused persons.(10) The accused persons are said to have been armed withpistols. It sounds unnatural that the deceased was dragged from the village and taken to some secluded area for being killed though the accused persons were dare devils and absconding offenders. The deceased has not suffered any injury caused by fire arms. The deceased has sustained seven injuries by sharp weapon. No effort appears to have been made during investigation to trace out or recover the weapon by which the injuries were caused to the deceased.(11) The judgment of the High Court at one place mentions that the accused appellant was absconding and that too is a piece of incriminating circumstantial evidence. This observation is based solely on the fact thatwas arrested after about a month from the date of the incident. But there is no evidence adduced to draw an inference of absconding against the accused. Nobody has deposed to any attempt having been made to arrest or find out the whereabouts of theafter the incident. No evidence has been adduced to show that between the date of incident and the date of arrest the accused appellant was not available at his ordinary residence. In the absence of such evidence an inference of absconding against thecannot be drawn.(12) As we have already noticed, we are left with the sole testimony of Kilol Singh,Munni Patel, who could have corroborated his testimony has not been examined. The only other witness we have already seen has turned hostile. Ram Kali,too does not fully support Kilol Singh and rather contradicts him on a material part of the story. The conduct of Ram Kali,as deposed to by herself does not inspire confidence. The singular testimony of Kilol Singh,cannot be treated to be of such sterling character as to form safe basis for convicting theFrom such evidence available on record, an inference as to the deceased having been last seen in the company of the accused persons cannot be drawn and, therefore, the conviction of the accused appellant cannot be sustained.