S.L. Kochar, J.
1. The ten appellants have preferred this appeal against the judgment dated 3-12-94 passed by the learned Second Addl. Sessions Judge, Dhar in Sessions Trial No. 381/93, thereby convicting them under Sections 148, 302 and 307 of the Indian Penal Code and sentencing them each to suffer R.I. for three years, imprisonment for life with fine Rs. 500/-, in default of payment of fine to suffer additional S.I. for three months and R.I. for ten years with fine of Rs. 500/- and in default of payment of fine to suffer additional S.I. for three months respectively. The substantive jail sentences have been directed to run concurrently.
2. Brief facts of the prosecution case as unfolded before the Trial Court were that on 1-7-2003, the complainant Shankar (P.W. 1) was residing at Village Satsagania Gujri. His parents Pandu and Fulkibai had returned from Indore after doing labour work and stayed at Gujri. When he (the complainant) reached his house, his father informed that the appellant Bhagiya had some talks with him about the lands of grand-mother Manglibai. After their night-meals, the complainant, his mother and father were sitting outside their house. At that juncture at about 9.00 P.M. Kailash s/o Bhagiya armed with bow and arrow, Mohan armed with axe, Bhagiya armed with Falia, Nathiya armed with sword, Bajria, Tendya and Gendiya armed with lathis came there alongwith 2/3 other persons and began to assault his father Pandu. When his father tried to escape and run-away, his uncle Bholiya caught hold of Pandu and all of them assaulted him by means of axe, arrow-shot and lathis as a result of which, Pandu died then and there. Mohan also assaulted his mother Fulkibai (P.W. 2) by arrow-shot at her abdomen, blade of which remained embaded in her stomach. She was also assaulted by lathis. The grand-mother of complainant Manglibai (P.W. 3) was assaulted by accused Bhagiya by means of Falia at her neck and hip. The incident has also been witnessed by Molya, Rama, Sukhram, Nathiya and Rugnath.
3. The matter was reported at the Police Station by Shankar (P.W. 1) vide Ex. P-1. During investigation Panchnama of dead-body was prepared and spot map (Ex. P-2) was drawn. From the spot, bow and arrow were seized vide Ex. P-21. Other weapons were also recovered and seized at the instance of the respective accused persons vide Exs. P-20, P-22 and P-23. Dead-body of Pandu was sent to the hospital for post-mortem examination. Autopsy on the dead body was conducted by Dr. Shankar Patidar (P.W. 8) and the post-mortem report is Ex. P-4. Shankar (P.W. 1), Fulkibai (P.W. 2) and Manglibai (P.W. 3) were medically examined and their injury reports are respectively Ex. P-15, P-16 and P-17. After due investigation, the accused persons were charge-sheeted. They denied the charges and pleaded that they have been falsely implicated on account of ill-will. They were, therefore, put to trial. To prove its case, the prosecution has examined as many as 11 witnesses whereas the accused persons did not examine any witness in their defence. After trial, the learned Trial Court, finding the accused persons guilty of the offences charged, convicted and sentenced them as indicated above.
4. During pendency of this appeal appellant No. 7 Kishan expired on 4-12-98 and appellant No. 1 Bhagiya died on 25-8-2002. Therefore, their appeal stood abated by order dated 2-8-99 and 154-2004 respectively.
5. We have heard Shri Sanjay Sharma and Shri Saleem, Advocates for the appellants and Shri G. Desai, learned Dy. Advocate General for the respondent/State and perused the entire record carefully.
6. The contention of the learned Counsel for the appellants is that the learned Trial Court has erred in convicting the ten accused persons for the offences under Sections 302 and 307 of the Indian Penal Code simpliciter though there is no evidence available on record about the specific overt act of the appellants regarding causing of fatal injuries which resulted into the death of Pandu. The witnesses have given general and omnibus statements against all the appellants whereas the deceased suffered only three lacerated wounds on occipital region, elbow-joint and right shoulder. Learned Counsels have also submitted that the eye-witnesses’ account is completely at variance with the medical evidence though the appellants Kailash, Mohan and Bhagiya (now dead) and Nathiya were having sharp edged weapons like bow and arrow, axe, Falia and sword it is deposed by the witnesses that all these appellants alongwith other appellants caused injuries by sharp edged weapons as well as by lathis. Learned Counsel further submitted that the statements of the eye-witnesses are contradictory to each other vis-a-vis with their previous statements and the learned Trial Court having held in Para 53 of its judgment that even if for the sake of arguments, the eye-witnesses did not witness the incident of assault on deceased Pandu and injured witness Fulkibai (P.W. 2), committed grave error in convicting the appellants and on the basis of insufficient circumstantial evidence. Learned Counsel have also pointed out that the appellants were not charged under Section 149 of the Indian Penal Code.
7. On the other hand, learned Dy. Advocate General, Shri Desai has submitted relying on the Supreme Court judgment passed in Ramkishan and Ors. v. State of Rajasthan, (1997) 7 SCC 518, that the charge framed by the learned Trial Court against the appellants is containing the ingredients of formation of unlawful assembly whose common object was to commit murder of deceased Pandu and causing injuries to the witnesses. Therefore, the non-mentioning of Section 149, IPC in the charges would not affect the prosecution adversely and it is only an irregularity since no prejudice is shown to have been caused to the appellants by such omission.
8. Having heard learned Counsel for the parties and having perused the entire record, we are of the opinion that the conviction and sentence of the appellants is not sustainable and they deserve acquittal.
9. When the learned Trial Court has held in its judgment Para 53 that the eye-witnesses did not witness the incident, the same witnesses could not have been relied upon for the purposes of the said incident. The learned Trial Court has held in this Para 53 of the judgment that even if for the sake of argument it is accepted that the witnesses did not witness the incident of assault upon deceased Pandu and Fulkibai (P. W. 2) even then the prosecution case could be accepted on the basis of the circumstantial evidence of previous ill-will between the deceased Pandu and accused Bhagiya (since expired during pendency of appeal), their quarrel in the market on the same day at 11.00 A.M. and arrival of all the accused persons with bow and arrow and lathis. Thereafter, dragging the deceased from his house upto the field of Bholia (P. W. 4) and thereafter, the deceased was not seen in the company of anybody. According to the learned Trial Court, these circumstances do establish the guilt of the appellants.
10. In the opinion of this Court, the reasoning adopted by the learned Trial Court in Para 53 is absurd because once the eye-witnesses have been disbelieved, their evidence would not be relied upon for the purpose of presence of the appellants on the spot with weapons and taking away of the deceased from his house to the field of Bholiya. We have gone through the statements of all the eye-witnesses namely Shankar (P.W. 1), Fulkibai (P.W. 2), Manglibai (P.W. 3) and Babu (P.W. 6). They have given the evidence about the entire incident and it is very difficult to bifurcate their statements only for the purposes of proving the arrival and presence of the appellants at their house and taking away of the deceased upto the field of Bholiya.
11. Though Shankar (P.W. 1), Fulkibai (P.W. 2) and Manglibai (P.W. 3) are the injured witnesses, but looking to the finding of the learned Trial Court in Para 53 of its judgment and their statements independently they are not reliable witnesses.
12. Shankar (P.W. 1) had lodged the FIR. He has deposed very specifically that he was knowing all the appellants by their names and faces. He has not named appellant Ramesh, Kishan and Nanuram in the First Information Report (Ex. P-1), though it is a very detailed one. Therefore, his explanation that because of uneasiness, he could not mention the name of these appellants, is not worth to be accepted. At that time, he himself, his mother Fulkibai (P.W. 2) and grand-mother Manglibai (P.W. 3) were chitchating in the court-yard of their house. This witness has stated that all the appellants came to his house with weapons including sharp-edged weapon and started assaulting his father Pandu. Thereafter, his father run-away towards the field of Bholiya. The appellants chased him and caught hold of him in the field of Bholiya and again started assaulting him by lathis. There he fell down on the ground. After return from the field of Bholiya, appellant Mohan caused injury on the abdomen of his mother Fulkibai (P.W. 2) by arrow-shot who also run-away from the house and fell down in the field of one Rugnath. Though this witness, in examination-in-chief, has stated that he lodged the report (Ex. P-1) at the Police Station, but in Para 22 of his deposition, he has stated that the First Information Report was written by the police after asking him as well as Bholiya and the details of the weapons possessed by the appellants were given by witness Bholia (P.W. 4). Again, in the same paragraph, he has stated that the facts mentioned in the First Information Report were fully informed to the police by witness Bholia. Again, in Para 26, his say is that he has not witnessed the incident of assault upon his father and the facts mentioned in Ex. P-1 regarding causing of injury to deceased by axe, Falia, arrow-shot were mentioned as per disclosure by witness Bholiya. In Para 27, this witness has stated that he run-away from the scene of occurrence towards Gujri because of which, he could not witness the incident of assault upon his mother and grand-mother. He has informed by Bholiya (P.W. 4).
13. In the light of these admissions of star witness Shankar (P.W. 1), it is crystal clear that the case has been concocted against the ten appellants later on and he was made to sign the First Information Report.
14. Fulkibai (P.W. 2) in Para 3 has deposed that just after arrival of the appellants, they started assaulting and appellant Mohan caused injury to her by arrow-shot. She became unconscious thereafter. The accused persons started assaulting her husband and she did not witness the same. She came to know that her husband was lying in the field of Bholiya. In Para 8, her say is that her husband was lying inside the house and he had also consumed liquor. She and her son Shankar (P.W. 1) and daughter-in-law Jhumki (P.W. 5) were sitting in the court-yard and mother-in-law Manglibai (P.W. 3) was sitting at the door. She has given just contradictory statements about the events and the place of presence of the deceased to the statement of Shankar (P.W. 1) as mentioned hereinabove. According to Shankar (P.W. 1) and Manglibai (P.W. 3), Fulkibai (P.W. 2) was assaulted by Mohan after he returned from the field of Bholiya after assaulting the deceased Pandu. These are not the minor contradictions which can be ignored and brushed aside and the same go to the root of the case. This is true that these are the injured witnesses, but it appears that they have not come up with clean hands and have exaggerated the story upto the extent wherefrom it is not possible for the Court to find out the truth by separating the grain from chaff. They have not given any specific overt act against any of the appellants for causing a particular injury by particular weapon to the deceased. Moreover, they have stated that all the appellants came together having axe, falia, bow and arrow and lathis and also all had assaulted the deceased at their house and thereafter dragged him and also assaulted the deceased in the field of Bholiya. But, in the medical evidence of Dr. Shankar Patidar (P. W. 8) and post-mortem report (Ex. P-4), the deceased sustained only three injuries out of which two were simple in nature and non-vital parts of the body and one injury on the head which has resulted into his death. These number and nature of injuries also speak a volume about concoction of the prosecution case and false implication of the appellants.
15. There is major and important contradiction between the ocular statement and eye-witnesses’ version which has not been duly corroborated by the medical evidence. In these circumstances, the Supreme Court has held in catina of judgments that the medical evidence will prevail over the oral evidence and in such inconsistencies, the eye-witnesses could not be relied upon. See :
Surjan and Ors. v. State of Rajasthan (AIR 1956 SC 425);
Shivji and Ors. v. State of M.P (AIR 1980 SC 552);
Purshottam and Anr. v. State of M.P. (AIR 1980 SC 1873);
Amarsingh and Ors. v. State of Punjab (AIR 1987 SC 826); and
Budhwa alias Ramchandra v. State of M.P. (AIR 1991 SC 4 Paras 6 and 7).
16. Another injured witness is Manglibai (P.W. 3) who has tested that in the night at about 9.00 P.M. all the inhabitants of the house were sitting outside the house and she was standing on the door. At that juncture, all of a sudden the appellants reached over there and started assaulting Pandu. They were having bow and arrow, axe, Falia and lathis with them. His son was lying in the field of Bholiya and daughter-in-law was assaulted by Mohan and she was thrown by the appellants in the field of Rugnath. She was also assaulted by appellant Bhagiya (since dead) by Falia on her neck and buttock. She went to lodge the report. She has further stated that she was aged about 70-80 years and because of cataract in her eyes, she was having weak vision. In Para 10, she has stated that she disclosed before the police only the names of the appellant Bhagiya, Kailash and Mohan. She did not disclose the names of other appellants. In Para 12, she has given altogether a different story. According to her, first the appellants pelted stones on their house and the pelting of stones continued for a long duration. The appellants entered inside the house and assault the deceased Pandu by lathi, Falia, axe and arrow-shot. Thereafter, he was taken outside the house and also was assaulted there. She was contradicted with her case-diary statement (Ex. D-2) wherein the fact of causing injury to Fulkibai by appellant Mohan by arrow-shot is not mentioned. In Para 17, she has stated that they reached at the Police Station in the night at 10.00 P.M. Shankar (P.W. 1) did not reach at the police station in the night and she and one Sukhram had lodged the report at the Police Station and on this report she had also put her thumb-impression, but no such report has been filed by the prosecution alongwith the charge-sheet.
17. So, in the light of the statement of Shankar (P.W. 1) and this witness, the genuineness of the First Information Report (Ex. P-1) and its sanctity is doubtful and it appears that on the next day, police came in the village then the witnesses concocted the story involving as many as ten persons in the alleged incident.
18. The evidence of another witness considered by the learned Trial Court is that of Babu (P.W. 6). This witness Babu has also not given any specific overt act against any of the appellants and named only three appellants namely, Mohan, Kailash and Bhagiya. Alongwith these appellants other persons also came and he was not knowing all those persons. The appellants Mohan, Kailash and Bhagiya were having bow and arrow, Faliya and axe respectively. Rest were having lathis. All started assaulting the deceased Pandu whereupon Pandu ran-away from his house and reached in the field of Bholiya. There also, he was assaulted by the appellants. After assaulting deceased Pandu, all the appellants assaulted Fulkibai (P.W. 2) and appellant Mohan caused injury by arrow-shot to Fulkibai at her abdomen.
19. The statement of this witness regarding appellants Mohan, Kailash and Bhagiya (since dead) is not corroborated by the medical evidence since the deceased had not suffered even a single injury caused by sharp edged weapon. From inside the house of deceased Pandu and from his court-yard, blood stains or the earth soiled with blood were not seized. Y.S. Jhala (P.W. 11), Town Inspector has done the major investigation and he effected the seizure of blood stained earth through seizure memo (Ex. P- 21) from the field of Bholiya where the dead body of the deceased was lying. This field is situated about 55 paces away from the house of the deceased Pandu, which is clear from the spot map (Ex. P-2) prepared by this witness. In Para 29, this witness has stated that he did not find any sign of dragging between the house of the deceased and the place where the dead-body was lying. This witness has also nowhere stated in his statement about marking of any sign of violence, pelting of stones inside the house and on the roof. That shows that the deceased was not assaulted inside his house and there was no pelting of stones on his house by the appellants.
20. Looking to the material and important contradictions, omissions and embelishment in the statements of the eye-witnesses and the medical evidence, we find it difficult to separate the grain from the chaff which is inextrically mixed up. We have perused the judgment of the Supreme Court passed in the case of Ramkishan and others (supra) and we are of the view that the same is not applicable in the facts and circumstances of the present case. Since, no reliance is placed on the evidence of the eye-witnesses. Therefore, the question of application of Section 149 of the Indian Penal Code would not arise.
21. But, at the same time, we find consistency in the statements of the eye-witnesses regarding causing injuries to Fulkibai (P. W. 2) by arrow-shot at her abdomen and their version is fully corroborated by the medical evidence. Thus, we uphold the conviction of the appellant Mohan for the offence punishable under Section 307 of the Indian Penal Code. The conviction and sentences of all the appellants for the offences punishable under Sections 148, 302 and 307 of the Indian Penal Code (except appellant Mohan) is liable to be set aside.
22. For the foregoing legal and factual discussion, this appeal stands allowed in part. The conviction and sentence of the appellant Mohan for the offence under Section 307, Indian Penal Code is upheld. But he is acquitted from the offences under Sections 302 and 148, Indian Penal Code. The conviction and sentences of the remaining nine appellants for the offences punishable under Sections 148, 302 and 307, Indian Penal Code are set aside. They are on bail. Their bail bonds shall stand discharged. Appellants Kailash and Mohan are in jail. Appellant Kailash be set at liberty forthwith if not required in any other case and appellant Mohan be set at liberty forthwith if not required in any other case provided he has already undergone the awarded sentence under Section 307, Indian Penal Code.
23. A copy of this judgment alongwith the record of the Trial Court be sent to that Court immediately for necessary compliance.