{"id":245438,"date":"2007-03-08T00:00:00","date_gmt":"2007-03-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/swami-prasad-vs-state-of-madhya-pradesh-on-8-march-2007"},"modified":"2015-07-26T04:39:12","modified_gmt":"2015-07-25T23:09:12","slug":"swami-prasad-vs-state-of-madhya-pradesh-on-8-march-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/swami-prasad-vs-state-of-madhya-pradesh-on-8-march-2007","title":{"rendered":"Swami Prasad vs State Of Madhya Pradesh on 8 March, 2007"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Swami Prasad vs State Of Madhya Pradesh on 8 March, 2007<\/div>\n
Author: S.B. Sinha<\/div>\n
Bench: S.B. Sinha, Markandey Katju<\/div>\n
           CASE NO.:\nAppeal (crl.)  731 of 2000\n\nPETITIONER:\nSwami Prasad\n\nRESPONDENT:\nState of Madhya Pradesh\n\nDATE OF JUDGMENT: 08\/03\/2007\n\nBENCH:\nS.B. Sinha & Markandey Katju\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T <\/p>\n
S.B. SINHA,  J :\n<\/p>\n
\tThis appeal is directed against a judgment and order dated  24.11.1999
\npassed by a Division Bench of the Madhya Pradesh High Court at Jabalpur in
\nCriminal Appeal No. 762 of 1988 whereby and whereunder a judgment of the
\nlearned Sessions Judge, Taikamgarh, Madhya Pradesh dated 30.12.1987 in
\nSessions Trial No. 4 of 1987 acquitting the appellant from the charge of
\ncommission of an offence punishable under Section 302 of the Indian Penal
\nCode, was set aside.\n<\/p>\n
\tThe  basic  fact of the matter is not in dispute.  One  Devakinandan
\n(PW-3) is the father of the appellant as also the deceased Rameshwar.
\nAppellant herein is his son through his first wife.  After the death of his first
\nwife, Devakinandan married one Binna.  The deceased and  Ram Sahay (PW-\n<\/p>\n
4) were his sons and Ramsri (PW-6) was his daughter through Binna, the
\nsecond wife of Devakinandan.\n<\/p>\n
\tOn 08.11.1986 at about 10 a.m. Paras Ram (PW-1) Devakinandan (PW-\n<\/p>\n
3), Raj Kumar (PW-2) and the appellant were talking beneath a ‘neem’ tree
\nnear the house of  PW-3 as regards partition of the lands belonging to him.
\nAppellant herein claimed = share in the property of PW-3.  PW-3, however,
\ndeclined to give him = share stating that he had three sons and all the sons
\nwould get equal shares.\n<\/p>\n
\t      PW-4 Ram Sahay, (brother of the deceased) and the deceased at that
\npoint of time were minors.  They were taking bath at a well.  PW-4 after
\ntaking bath left for his house.  Appellant, in the meanwhile, went towards the
\nwell with an axe in his hand.  While the deceased was taking bath, he
\nallegedly assaulted him by giving two or three blows with his axe on his neck
\nsaying that ‘he had done the division in two parts’.  He also gave an
\nexhortation that whoever would come would be killed;  upon hearing of
\nwhich, PW-1,  PW-2 and PW-3 allegedly entered their respective houses.
\nPW-6, Ramshri (sister of the deceased and PW-4), who was standing near her
\nhouse, heard the alarm that the appellant had killed Rameshwar, came to the
\nspot and found her brother lying in an injured condition.  She immediately
\nalarmed her brother PW-4 not to come from his house.  Appellant from the
\nplace of occurrence went to the Police Station, Niwari.  He purported to have
\nmade a statement before the officer in charge at the Police Station, disclosing
\nthat Rameshwar had been killed with the axe carried by him in his hand.  At
\nthat point of time, one Rajendra Shekhar, who was an advocate as also a
\njournalist was present in the Police Station.  He examined himself as PW-11.\n<\/p>\n
\tOn the basis of the said information, the officer in charge of the Police
\nStation came to the spot.  PW-1 made the following statement before him :\n<\/p>\n
\t“I am doing agriculture in Byavata  Ram Sahai,
\nRameswar, Swami Prasad are sons of my uncle.  Swami
\nPrasad was the son of elder wife and Rameswar was the
\nson of younger wife.   Swami  Prasad is in possession of
\nhalf the land.  While Devaki Nandan wanted to give one-
\nthird share to Swami.    Today at about 10′ O’ clock in the
\nmorning, Swami Prasad, Dewaki Nandan, Raj Kumar
\nYadav and I were sitting under Neem Tree.  Swami Prasad
\nsaid “I am son of married lady (wife), give me half share
\nof the land”,  Dewaki said you are three brothers”.
\nTherefore you will get only one third share.  At that time,
\nRam Sahai, Rameswar were taking bath on the well.  After
\na short time, Ram Sahai went to, Swami Prasad armed with
\nan axe reached the well where Rameswar was bathing and
\nsuddenly make strike with axe two three times and shouted
\n“see”, there are two parts.  We saw dying Rameswar
\nthereafter Swami shouted “come” all to be killed.  Raj
\nKumar, Dewaki Nandan and I ran and entered in the house.
\nSwami Prasad kept on waiting with axe for some time and
\nthen moved towards Niwari.  Till now, I stayed at the
\nhome on account of fear.  Having come there, I saw, there
\nwere axe injuries on Rameswar’s neck and he had died.
\nTherefore, I lodge this report.  Investigation may be
\ndone.,”\n<\/p>\n
\tA First Information Report was drawn on the basis of the said
\nstatement.\n<\/p>\n
\tAt the trial, however, not only PW-1 but also PW-2 and PW-3 turned
\nhostile.  They resiled  from their earlier statements.  PW-4 was not an eye-
\nwitness.  The learned Trial Judge disbelieved the statement of PW-6, inter
\nalia, on the premise that she had made improvement thereupon.  A judgment
\nof acquittal, therefore, on the said findings,  was passed.\n<\/p>\n
\tOn an appeal made by the State before the High Court against the said
\njudgment of acquittal, however, a Division Bench of the High Court examined
\nthe matter in details and held the appellant guilty of commission of murder of
\nRameshwar and sentenced him to undergo rigorous imprisonment for life.\n<\/p>\n
\tMr. Yashank P. Adhyaru, the learned Senior Counsel appearing on
\nbehalf of the appellant, would submit that having regard to the nature of
\nevidences brought on records by the prosecution, the High Court must be held
\nto have committed a manifest error in reversing a judgment of acquittal
\nparticularly in view of the fact that both the learned Trial Judge as also the
\nHigh Court did not rely upon the testimony of the sole eye-witness PW-6 on
\nthe ground that she had not made any statement before the Investigating
\nOfficer under Section 161 of the Code of Criminal Procedure, 1973 to the
\neffect that she had seen the appellant assaulting the deceased with an axe.\n<\/p>\n
\tThe learned counsel would submit that even the informant PW-1 had
\nnot made any statement before the court that he had seen the actual incident,
\nand he merely disclosed that he had heard an alarm and on cross-examination,
\nmade a categorical statement that somebody had told him thereabout, but the
\nname of the person from whom he had known had not been disclosed.\n<\/p>\n
\tOur attention has further been drawn to the fact that even PW-2 refused
\nto claim himself to be an eye-witness.  PW-3, the father of the deceased,
\ncategorically stated that he had not seen the incident.  He thus, was a witness
\nto the dispute.  According to the learned counsel PW-4 was admittedly not an
\neye-witness.  Mr. Siddhartha Dave, learned counsel for the State, however,
\nsupported the judgment of the High Court.\n<\/p>\n
\tThe death of Rameshwar being homicidal in nature is not in dispute.
\nDr. Vimal Kumar Jain, (PW-5) conducted the post-mortem examination.  He
\nfound the following external injuries on the person of the deceased  :\n<\/p>\n
\t\t“(1) \tThere was incised wound 5″ x 4″ x 3” with
\nclear cut margin on right back and lateral upper portion
\nof the neck.  There was clotted blood and main artery
\nwas cut.\n<\/p>\n
\t\t(2)\tThere was incised wound 3″ x 2″ x 2″ in the
\nback lower side of neck and in lateral portion and the
\nmargin of the wound was clearly cut.  There was clotted
\nblood and blood vein cut.\n<\/p>\n
\t\t(3) \tThere was incised wound with clearly cut
\nmargin 3″ x 2″ x 1″ in the right side of back and Scapular
\nregion and there was clotted blood.”\n<\/p>\n
\tDeath of Rameshwar, therefore, being homicidal in nature is not in
\ndoubt.  It is also not in dispute that the incident took place at 10 a.m. on
\n08.11.1986.  The place of occurrence is also not in dispute.  Appellant
\nadmittedly came to the Police Station, Niwari at about 11 a.m.  He came there
\nwith an axe in his hand.  It was stained with blood.   He stated that a murder
\nhad been committed by the axe which he had been holding.  The said axe was
\nseized by the officer in charge of the Niwari Police Station, Shri N.C. Tiwari.\n<\/p>\n
\tOn the basis of the said information, Shri Tiwari came to the spot and
\nrecorded the First Information Report.\n<\/p>\n
\tIt is true that three prosecution witnesses were declared hostile, but the
\nsame by itself, in our considered opinion, would not lead to the conclusion
\nthat the High Court committed any error in passing the impugned judgment.
\nIt is well settled that a Court in a given situation even may rely on the
\nstatements of the witnesses, who had been permitted to be cross-examined by
\nthe prosecution.\n<\/p>\n
\tIt may be true that the evidence of PW-6 had not been believed in its
\nentirety by the learned Trial Judge.  Her evidence has, however, been believed
\nat least in part by the High Court.  The reason for not believing her evidence is
\nsaid to be that in her statement under Section 161 Cr. P.C. before the
\nInvestigating Officer, she had not stated to have seen the appellant assaulting
\nthe deceased with an axe.  Her statement, however, before the police as also
\nbefore the trial court should be considered in its entirety.  It is not in dispute
\nthat at least she had heard a cry that Rameshwar had been killed by the
\nappellant.  She ran to the place of occurrence.  She even before going to the
\nplace of occurrence asked her brother not to come there.  PW-4 in his
\nevidence supported that part of the testimony of PW-6.  He stated :\n<\/p>\n
\t“By that time I finished taking bath and then I left
\nfor my home and at that time still Rameshwar was taking
\nthe bath at the well.  The distance between my house and
\nthe pump is 500 ft. and as soon as I sat in my house to
\ntake the meal, then my sister Ramshri, who was outside,
\nraised the alarm that Swami killed Rameshwar by giving
\nblow of the axe and she asked to close the gate and to
\nremain indoor”\n<\/p>\n
\tThere are several other circumstances which, in our opinion, lead to the
\nconclusion that the appellant and the appellant alone is guilty of commission
\nof murder of Rameshwar.  The dispute in regard to the share in the property
\nhas been proved by all the prosecution witnesses, namely, PW-1, PW-2 and
\nPW-3.\n<\/p>\n
\tPW-3 is the father of the deceased as also the appellant.  He, however,
\nresiled  from his earlier statement; but he had assigned reasons therefor,
\nstating :\n<\/p>\n
“I think whatever destined has happened and now
\nthere should not be bad consequences for the family of
\nSwami.”\n<\/p>\n
\tIt shows as to why he had turned hostile.   It also indicates why PW1
\nand PW2 turned hostile.  Even PW4 did not tell the whole truth.
\n\tLet us now consider as to what extent PW3 can be believed.   Although
\nhe resiled from his statement that he had seen the appellant assaulting the
\ndeceased, but he had proved the other part of his earlier statement, namely, the
\ndemand of = share in the property by the appellant and on his refusal to
\naccept the said demand, the appellant went towards the well with an axe in his
\nhand.\n<\/p>\n
\tPW-1, the informant, is also a witness to the aforementioned incident.
\nHe was present when Appellant  made a claim of = share in the property.   He
\nwas also seen going towards the well with axe in his hands. According to him
\nwhen he reached home, he had heard an alarm that Rameshwar had been
\nmurdered.  He did not in his cross-examination, dispute his earlier statements.
\nHe stated :\n<\/p>\n
\t“It is correct to say that I and Rameshwar used to
\nsit together in the village and even we used to go together
\nin the marriage.  Rajkumar does not belong to my family.
\nRajkumar got the share and he belongs to our family.
\nThe First Information Report of the occurrence were
\nshown to T.I.  I got it mentioned by T.I. in the report Ext.
\nP-1 marked as ‘A’ to ‘A’ that at that time Ramsahay and
\nRameshwar were taking bath at the well.  Ramsahay left
\nfor the home after some time.  Thereafter Swami Prasad
\narmed with Axe and he reached in the well, where
\nRameshwar was taking bath and he immediately gave 2-3
\nblows of Axe at the neck of Rameshwar and he raised the
\nvoice telling that see that now there are two shares.  I saw
\nRameshwar while falling.  Later Swami raised the voice
\nand he invited all persons to come as he wanted to kill
\nall.  It is correct to say that I did not see Swami Prasad
\nwhile giving blows of axe at  Rameshwar.  I did not give
\nthe attention that whether Swami was armed with axe at
\nthat time when he left.  It is correct to say that I saw
\nSwami while going towards the well.  I did not see
\nRamsahay and Rameshwar while taking bath.  As I heard
\nthe alarm, so I got it dictated that Swami killed
\nRameshwar with the axe.”\n<\/p>\n
\tSimilarly, he furthermore stated :\n<\/p>\n
“It is correct  to say that I disclosed in my statement in
\nthe portion ‘B to ‘B’ of Ext. P-4 that after some time
\nRamsahay left for the home and then Swami Prasad
\nsuddenly came armed with the axe towards the well.  I
\ndid not disclose in my statement to the T.I. in the portion
\n‘C’ to ‘C’ of Ext. P-4 that Swami Prasad suddenly gave
\nblow of the axe at Rameshwar and when he gave second
\nblow, then he told that see there are two portions”\n<\/p>\n
\tEven in cross-examination made on behalf of the appellant, he accepted
\nthat he heard an alarm that Rameshwar was killed and the appellant had killed
\nhim.\n<\/p>\n
\tFrom the evidences on records, apart from PW-6, who is an eye-
\nwitness, in our opinion, the following facts must be held to have been
\nsufficiently proved :\n<\/p>\n
1)\tAppellant had demanded = share in the property from his father at
\n\tabout 10 a.m. on 08.11.1986; and having been told that the property
\n\twould be divided equally amongst the three sons, he became angry;\n<\/p>\n
2)\tPW-4  while  in his house heard a cry that Rameshwar had been
\n\tkilled \tby the appellant.\n<\/p>\n
3)\tAppellant was seen at the place of occurrence with an axe.
\n\tHe went to the Police Station with the axe and blood-stained clothes;\n<\/p>\n
\tAlthough he did not make any categorical statement that he had killed
\nthe deceased, his statement to the effect that Rameshwar had been killed with
\nthe axe which he had been holding is  sufficiently indicative of the fact that it
\nwas he who had killed the deceased.   His statement is to be read reasonably
\nand in its entirety.   So read no other meaning can be attributed thereto.\n<\/p>\n
\tThere cannot be any doubt whatsoever, that a judgment of acquittal
\nshould not be interfered with, if two views are possible.  This has recently
\nbeen stated in Samghaji Hariba Patil v. State of Karnataka<\/a> [AIR 2007 SC 28].\n<\/p>\n
\tHowever, it is equally true that the High Court while entertaining an
\nappeal against a judgment of acquittal would be entitled to consider the entire
\nmaterials on records for the purpose of analyzing the evidence.  There is a
\npresumption that an accused is innocent, unless proved otherwise.  When he is
\nacquitted, the said presumption, becomes stronger.  But it may not be correct
\nto contend that despite overwhelming evidence available on records, the
\nappellate court would not interfere with a judgment of acquittal. {See
\nChandrappa & Ors. v State of Karnataka [2007 (3) SCALE 90]}.\n<\/p>\n
\tFor the reasons aforementioned, we do not find any merit in this appeal
\nwhich is dismissed accordingly.\n<\/p>\n
\tAppellant is on bail.  He is directed to surrender forthwith and serve out
\nthe remaining sentence, failing which, the Chief Judicial Magistrate concerned
\nshall take proper steps for his apprehension.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Swami Prasad vs State Of Madhya Pradesh on 8 March, 2007 Author: S.B. Sinha Bench: S.B. Sinha, Markandey Katju CASE NO.: Appeal (crl.) 731 of 2000 PETITIONER: Swami Prasad RESPONDENT: State of Madhya Pradesh DATE OF JUDGMENT: 08\/03\/2007 BENCH: S.B. Sinha & Markandey Katju JUDGMENT: J U D G M E […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-245438","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSwami Prasad vs State Of Madhya Pradesh on 8 March, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/swami-prasad-vs-state-of-madhya-pradesh-on-8-march-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Swami Prasad vs State Of Madhya Pradesh on 8 March, 2007 - 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