State of U.P  Insc 152 (7 March 2003)
N Santosh Hegde & B P Singh Santosh Hegde,
appellant in Criminal Appeal No.388/2000 was charged along with four other
accused persons for having committed murder of one Ram Briksha on 18.6.1979 at
about 9.30 p.m. The learned Sessions Judge who
tried the said accused persons in S.T. No.31/1980 found all the accused persons
including the appellant herein guilty of the offences charged and convicted
them for offences punishable under Section 302 IPC read with Section 149 IPC
and imposed the sentence of imprisonment for life. While doing so, the learned
Sessions Judge relied upon evidence of PWs.2 to 5 who were produced by the
prosecution as eye witnesses.
aggrieved accused persons preferred an appeal before the High Court of
Judicature at Allahabad in Criminal Appeal No.1622/1980.
The High Court rejected the evidence of PWs.3 and 4 as not believable but
relied on the evidence of PW-2, the mother-in-law of the deceased and PW-5, the
wife of the deceased and based on their evidence while acquitting the other
accused persons convicted the appellant alone by confirming the judgment of the
learned Sessions Judge and awarded to the appellant punishment under Section
302 read with Section 149 IPC.
against the said judgment of the High Court convicting the appellant herein,
the appellant has preferred Criminal Appeal No.388/2000.
State has preferred the connected Criminal Appeal No.389/2000 against the
acquittal of the other accused.
entire prosecution case as accepted by the High Court in this case so far as
appellant Moti is concerned rests on the evidence of PWs.2 and 5.
brief facts necessary for the disposal of these appeals are that on 18.6.1979
at about 9.30 p.m. When the deceased and his
father-in-law Ram Nath (since dead) were sitting outside the house of his
father-in-law, the accused persons came there. At that time appellant was armed
with a spear and the other accused persons were armed with lathis. Thereafter,
the prosecution states that on an exhortation made by Bhola and Mahatam, the
respondents in the connected appeal, all the five accused persons assaulted the
victim with lathis and thereafter dragged him to the courtyard of the house of
appellant Moti which was nearby where the appellant Moti allegedly gave a blow
with the spear on the chest of the deceased and others gave him lathi blows
consequent to which he died. The complaint of this incident was given by the
father-in-law Ram Nath at Balipar Police Station on 19.6.1979 at about 0030
hrs. with PW-3 Dilraj. The said Station House Officer of the Police Station
registered the complaint and the investigation was subsequently conducted by
PW-8 Devi Sharan Singh, Sub Inspector. On completion of the investigation, as
stated above, a charge-sheet under Sections 147, 148, 149 and 302 IPC was
lodged against all the accused persons. After completion of the trial all the
accused persons were convicted by the learned Sessions Judge, as stated above,
based on the evidence of eye witnesses PWs.3 to 5. While the High Court
disbelieving the evidence of PWs.3 and 4 allowed the appeal of the four accused
persons but convicted the appellant Moti, as stated above.
the pendency of these appeals, accused Chinku who is respondent in Criminal
Appeal No.389/2000 has died and the appeal has abated as against him.
U.U. Lalit, learned counsel appearing for the appellant Moti in Criminal Appeal
No.388/2000 submitted that both the courts below have seriously erred in not
noticing the medical evidence which clearly establishes the falsity of the
prosecution case in regard to the time of incident. He contended that the
incident in question could not have happened at 9.30 in the night and must have
happened much earlier in the day which was not noticed by anybody and it is
only subsequently when the body of the deceased was found, based on suspicion
the appellant as well as the other accused persons were implicated in this
case. He also pointed out from the evidence of PWs.2 and 5 the inherent
discrepancies which make their evidence unreliable. Learned counsel pointed out
that the High Court having rightly rejected the evidence of PWs.3 and 4
produced as eye witnesses by the prosecution ought not to have relied upon the
evidence of PWs.2 and 5 only to convict appellant Moti and in the absence of
there being any acceptable direct evidence as to the overt act of appellant Moti,
he could not have been convicted for an offence under Section 302 read with
Section 149 IPC when the other accused persons were acquitted. He also submits
that there is no material as against this appellant even to convict him for an
offence punishable under Section 302 IPC simplicitor.
Praveen Swarup, learned counsel appearing for the State of U.P., per contra,
contended that as held by the High Court the medical evidence in regard to the
contents of the stomach of the deceased is immaterial for the purpose of
establishing the time of incident. He submitted that evidence of PW-2 who is
the mother and PW-5 who is the wife whose presence at the time of incident
could not be disputed clearly shows the involvement of the appellant in the
crime. He also submitted that the High Court was in error in rejecting the
evidence of PWs.3 and 4 and acquitting the other accused persons and therefore
the State appeal (Crl. A. No.389/2000) in regard to them ought to be allowed.
I.P. Tyagi, learned counsel appearing for the respondents in Criminal Appeal
No.389/2000 supported the judgment of the High Court so far as the respondents in
the said appeal are concerned.
heard the learned counsel for the parties and perused the material on record,
we notice that there is a serious flaw in the prosecution case as to the time
of the incident.
to the prosecution, the incident in question has occurred around 9.30 p.m. on 18.6.1979 when deceased and his father-in-law
were sitting on a cot outside their house after finishing their dinner. PW-5
Tara, the wife of the deceased in her evidence has stated thus :
Briksha used to look after it in day time and he used to return back in the
evening. He was sitting after taking his meal. First of all, male member of
family took their meal then female member of the family took meal. Rice, roti
and vegetable were prepared in food. Amongst the male members my father and
husband were there at my home. We had taken meal half an hour before the
murder. As my father and husband sat outside the house after taking food then
accused armed with bhalla and lathi came there I had prepared food. Today my
mother has accompanied me." It is clear from the said evidence of the wife
of the deceased that on the date of incident her husband after coming back from
working in the evening along with his father-in-law took his meal which was
cooked by PW-5. She also says that for the said meal she had cooked rice, roti
and vegetables and the said meal was served to her father and husband about
half an hour before the incident in question. This evidence has not been
clarified in any manner by the prosecution. Though PW-2 Parvati, the
mother-in-law of the deceased at one place in her evidence says that the dinner
was not cooked when the incident had taken place, we find it difficult to
reject the evidence of PW-5 when she states that the dinner was cooked and the
deceased and her father had eaten by the time the incident had taken place. It
is common knowledge that in a village, more so, in a place where there is no
electricity, the villagers after finishing their work normally have their meals
early. Therefore, the evidence of PW-5, in our opinion, fits in to the normal
conduct of a villager and hence is worthy of acceptance. If this be the
evidence that is adduced by the prosecution then the post mortem report should
clearly show at least semi-digested food, if not undigested food in the stomach
of the deceased, but the evidence of the doctor in this regard is quite the
the post mortem report and the medical evidence adduced by the prosecution
clearly show that the entire stomach of the deceased including both the
intestines were empty which would indicate that at the time of the murder the
deceased had not taken his meals and his murder must have taken place at least
3 to 4 hours after he had his last meal. PW-5 at one place in her evidence
states that her husband had his lunch in the afternoon and was resting because
he was not feeling well.
it is possible that the deceased was done to death much after his afternoon
meal and much before his night meal.
this be the fact then there is a serious dispute as to the actual time of
incident which is a very much important factor in finding out whether the case
as presented by the prosecution is true or not. This discrepancy also affects
the credibility of evidence of eye-witnesses because if really the incident had
occurred much before the dinner time, a doubt is created in our minds whether
these eye-witnesses could have noticed the incident at all and if they noticed
the incident why they are stating the time of incident as 9.30 in the night.
rather surprising that the High Court should find this part of the medical
evidence as being of no consequence at all.
High Court referring to this part of the medical evidence has observed :
"In our opinion the stomach contents are not very material to determine
the time of incident." We are of the considered opinion this view of the
High Court is wholly erroneous. It may be possible to contend that contents of
the stomach may not always be an indicator of the time of death.
a case where stomach is empty and the prosecution evidence is that the murder
had taken place shortly after the deceased had his last meal, to say that the
contents of the stomach have no material bearing on the determination of the
time, in our opinion, is not acceptable. In the instant case, time of death
being a material factor to verify the presence of the eye-witnesses it was
obligatory for the prosecution to have clarified the discrepancy between the
medical evidence and the oral evidence. The prosecution having failed to do so,
in our opinion, a serious doubt as to the time of incident and the presence of
the eye-witnesses at the time of incident and their narration of the incident
also becomes doubtful.
we may also notice that even according to the prosecution, appellant Moti had
no motive to commit the crime in question. The incident as narrated by the
eye-witnesses having taken place in a place where there was no proper light to
identify the actual accused who dealt the fatal blow also contributes to the factum
of doubt in the prosecution case.
in our opinion, the prosecution has failed to establish its case against the
we are in agreement with the contention of the learned counsel for the
appellant in Criminal Appeal No.388/2000 that the prosecution has failed to
establish the charge alleged against the appellant therein, there is no need
for us to discuss the merits of Criminal Appeal No.389/2000.
the reasons stated above, Criminal Appeal No.388/2000 is allowed and Criminal
Appeal No.389/2000 is dismissed.
Moti in Criminal Appeal N0.388/2000, if not required in any other case, shall
be released from custody forthwith.