PETITIONER: RAMBILAS & ORS. Vs. RESPONDENT: STATE OF MADHYA PRADESH DATE OF JUDGMENT: 03/10/1997 BENCH: M.M. PUNCHHI, S.P. KURDUKAR ACT: HEADNOTE: JUDGMENT:
J U D G M E N T
S.P. KURDUKAR, J.
The High Court as well as the Sessions Court by their
concurrent judgments held the appellants in all these
criminal appeals guilty of committing the murder of one
Deosharan & Devsaran s/o Bigen and convicted them under
Sections 302 and 201 IPC and sentenced each one of them to
suffer imprisonment for life on first count and two years’
RI on second count. Substantive sentences were ordered to
run concurrently. These appeals have been filed by the
appellants (convicts) through jail.
(2) Deosharan (since deceased) hailed from village Chirmari
and at the relevant time he was staying at the house of
Rambilas & Vilas (A-5). Deosharan was said to be a notorious
person and was adicted to liquor and womanizer too. He was
said to have married four times and has even eloped with the
wife of A-5 for a short period and after returning started
living with A-5 only. It was alleged that there was a
dispute between Deosharan and his father Bigen (P.W.1) on
one hand and Samarsai (Bigen’s nephew) on the other. The
occurrence took place on 3.5.1985 and on that day “Ganga
Dashara” a festival was being celebrated in the said area.
he occurrence in question took place late in the evening at
about 10.30 p.m. On this festival occasion villagers drink
and dance during the night. It is alleged by the
prosecution that at about 10.30 p.m. some of the villagers
heard the noise of sticks during marpeet and because of this
noise the prosecution witnesses, namely, Devsai (P.W>2),
Sitaram (P.W.3), Sukhnath (P.W.5), Suddhooram (P.W.6) and
one Ramdin woke up from the sleep and went in the direction
of Pondi Bathan Dad from where the noise of marpeet was
coming. These eye witnesses claimed to have seen the actual
assault caused by the appellants on Deosharan. All these
eye witnesses requested the appellants to spare Deosharan
but however, the appellants prohibited them from going near
the place where marpeet was going on and threatened them
saying that if they feel their lives are precious, go away
from the said place. These eye witnesses further claimed
that the appellants told them that they had finished
Deosharan. The eye witnesses who were unarmed returned to
they village and broke the news and also went to the house
of Sarpanch to apprise him about the incident. The
witnesses and some other villagers thereafter went to the
place of occurrence but they did not see the appellants as
well as the dead body of Deosharan. After returning to the
village next day morning these eye witnesses contacted Bigen
(P.W.1) and informed him about the incident. The FIR was
accordingly lodged. During interrogation Bahadur (A-2) made
a statement which led to the discovery of the dead body
which had been thrown into the tank. The dead body of
Deosharan was fished out and after holding the autopsy on
the dead body it was sent for post mortem examination. The
other accused persons were also arrested during
investigation. After completing the necessary investigation
a charge-sheet came to be filed against the appellants under
Sections 302 and 201 IPC.
(3) The appellants denied to have committed any offence and
pleaded that they are innocent and have been falsely
implicated in the present crime.
(4) At the trial prosecution examined as may as 13
witnesses of whom P.W.2, P.W.3, P.W.5 and P.W.6 claimed to
be eye witnesses. The memorandum of disclosure statements
of various accused persons prepared under Section 27 of the
Evidence Act during investigation and the recoveries of
various incriminating articles made pursuant thereto were
also relied upon to bring home the guilt of the accused.
(5) We have very carefully gone through the judgments of
both the courts below and with respect we find that
notwithstanding the concurrent judgments thereof we are
unable to sustain the convictions of the appellants on any
count. It is well settled that this Court would be slow to
interfere with the findings of facts recorded by the Courts
below which are based on appreciation of evidence but we are
of the considered view that the Sessions Court as well as
the High Court have mechanically read the evidence of eye
witnesses and totally ignored the well known principle of
appreciation of evidence. We have very carefully gone
through the evidence of P.W.2, P.W.3, P.W.5 and P.W.6 who
claimed to be the eye witnesses. If we compare the evidence
of these eye witnesses it is immediately noticed that their
evidence is just like a parrot, telling about what is
taught. Even the omissions, contradictions and improvements
are identical. The claim of these eye witnesses is totally
unbelievable when they testified that they had gone to the
place of occurrence. The distance between their houses and
the place or occurrence is said to be one furlong. It was
night time and the only light to be one furlong. It was
night time and the only light available was that of the
Moon. A festival “Ganga Dashara” was being celebrated in the
village and these witnesses claimed that they heard the
noise of marpeet by sticks and, therefore, they woke up.
During the cross-examination they tried to explain by saying
that they were not fully asleep and, therefore, could hear
the noise of marpeet. They claimed that they had not
consumed by liquor. Their further claim was that when they
went to the place of occurrence they all had earlier met at
a place which was in front of the house of Sukhnath (P.W.5).
The claim of Sukhnath was that he overheard the talk between
other eye-witnesses and, therefore, he came out and went
along with them to the place of occurrence. The claim made
by these eye witnesses in their examination-in-chief was
that they had actually seen the assault on Deosharan by the
appellants but during cross-examination they admitted that
they did not see the actual assault as they were prevented
from going to the place of occurrence by the appellants.
The talk between the appellants and these four eye witnesses
was again absolutely identical without adding a word ‘less’
or ‘more’. In addition to the above, the salient feature of
their evidence is that after some time they again went to
the place of occurrence but they could not see the
appellants as well as the dead body. They searched for the
appellants during the whole night. This claim of these eye
witnesses is difficult to be accepted because according to
them, they had already been threatened by saying that if
they make any noise they would meet the same fate like
Deosharan. The assertion of these witnesses that they had
gone to the place of occurrence during that night appeared
to us a cock and bull story. Another circumstance weighed
with us is that despite such a ghastly attack on Deosharan,
none of them ever thought of going to the father of
Deosharan to inform him about the incident. They also did
not go to the police station during the same night to lodge
the First Information Report. Further more the story of
these eye witnesses as regards the assault o Deosharan is
also not corroborate from the medical evidence. Dr. S.S.
Pankera (P.W.4) and noticed three external injuries on the
head and may small injuries on the whole chest, backside and
both feet, knees and below knees. Dr. S.S. Pankare further
opined that the dead body was mutilated and there was a
fracture on occipital portion and blood clot was present
inside the skull. One has to only test this evidence on the
touchstone of probability that when five appellants were
simultaneously attacking Deosharan with the sticks in their
hands, of which the noise was heard from the distance of one
furlong, there ought to have been many more injuries on the
dead body of Deosharan. After going through the evidence of
these four star witnesses who constituted a backbone of the
prosecution story, we are of the considered view that in all
probabilities it was a blind murder.
(6) It is no doubt true that there was no motive for these
eye witnesses to implicate the appellants in the present
crime. That by itself would not lend any full proof
assurance that their evidence is credible and trustworthy.
It has also come on the record that because of notorious
character of Deosharan he had many enemies in and around the
village and if that be so the probability of somebody else
other than the appellants being the assailant cannot be
ruled out, the courts below, in our opinion, had failed to
read the evidence of these eye witnesses in a proper
perspective and had fallen into error in accepting their
evidence as credible and truthful.
(7) Coming to the other corroborative evidence, viz.,
recovery of certain incriminating articles at the instance
of the appellants under section 27 of the Evidence Act,
assuming it to be true, the same cannot form the basis of
conviction in the present case. In our considered view the
Sessions Court as well as the High court had committed an
error while convicting the appellants under Sections 302 and
201 IPC and consequently both the judgements are required to
be upset.
(8) For the reasons recorded here in above we allow
Criminal Appeal Nos. 325-29/96 filed by the appellants. The
judgments and orders of conviction passed against the
appellants by the courts below are quashed and set aside and
the appellants are acquitted of all the charges. The
appellants who are in jail be released forthwith if not
required in any other case.