Tourism Corporation Ltd. Vs. Fakir Chand, Etc., Etc  Insc 468 (25 September 2003)
Hegde & B. P. Singh. Santosh Hegde, J.
of Madhya Pradesh has preferred this appeal against a
judgment of the High Court of Madhya Pradesh at Jabalpur Bench.
granting leave to this appeal, this court by its order dated 22nd April, 1996 confined the same only as against
the first respondent.
prosecution case from which this appeal arises is as follows: The respondent in
this appeal and two others were chargesheeted by the Maharajpur police for an
offence punishable under Section 302 read with Section 34 I.P.C. for having
committing the murder of Bati in the intervening night between 10 and 11 of
April, 1985, while the said Bati was sleeping in his thrashing yard along with
his brother Suraj Prakash (PW-1) and his uncle Nand Ram (PW-3).
alleged that at that time the three accused persons
the deceased with deadly weapons like axe, farsa etc. and the deceased died
instantaneously. It is stated that PWs. 1 and 3, being afraid of the
assailants, did not move away from the place where they hid themselves and
later in the morning at about 8 O'clock they informed the other relatives
including Nathu Ram (PW-4), father of the deceased and the information as to
the crime was lodged at Maharajpur police station at about 8.15 A.M. and the
police station was about 3 k.ms. away from the place of incident. During the
course of investigation, the prosecution alleges that they recovered blood
stained clothes worn by A-1 as also a blood stained axe which was used in
attacking the deceased.
trial court, accepting the prosecution case convicted the three accused persons
for offences punishable under Section 302 IPC read with Section 34 IPC. The
trial court imposed the sentence of imprisonment for life on the said accused.
against the said judgment of the Sessions judge Chhatarpur, the accused filed
an appeal to the High Court of
Pradesh at Jabalpur in Crl. A. No. 60 of 1996. The High
Court on re-appreciation of the evidence by the impugned judgment came to the
conclusion that the prosecution has failed to establish a case against the
accused hence acquitted the accused.
stated above it is against the said judgment of acquittal the State has
preferred this Appeal and this Court at the time of granting leave has confined
the leave to appeal as against the first respondent only who was the first
accused in the Trial Court. Shri R.P. Gupta, learned Senior Counsel appearing
for the State contended that the Trial Court has meticulously considered the
evidence on record and accepted the eye witneeses' version of PW-1 and PW-3 and
has further relied upon the recoveries made at the instance of first accused.
He also submitted that little contradictions and embellishments even if present
in the evidence of these witnesses have been dealt with by the Trial court
which came to the conclusion that these contradictions would not in any manner
make the prosecution case unbelievable, hence it based a conviction on the said
evidence led by the prosecution.
submitted in such cases the High Court should not sit as a court of
and interfere with the judgment and finding of the trial court by
re-appreciation of the evidence and substituting its own subjective
satisfaction. It was the contention of the said learned counsel that the
presence of PWs.1 and 3 at the place of incident was natural and they did not
have any grievance or motive to implicate the accused falsely.
S.K. Dhingra, learned counsel appearing for the respondent countered the said
argument and submitted that the finding of the trial court is on wrong
appreciation of evidence and evidence of PWs.1 & 2 are so artificial and so
full of contradictions that no reasonable person would place any reliance on
such evidence to base a conviction.
heard the arguments of the learned counsel and perused the record, we notice
that the prosecution relies on evidence of PWs. 1&3 as eye witnesses and
also on the recoveries allegedly made at the instance of the first
accused/respondent herein. Since the judgment of the High Court is a reversing
judgment we thought it proper to scrutinise the evidence led by the prosecution
very carefully and in that process we notice that there is sufficient force in
the contention of the defence that the presence of PWs. 1&3 at the time of
and the incident in question which led to the death of the deceased could not
have been noticed by said witnesses. This is for the following reasons;
original case of the eye witnesses was that they were all sleeping together
when the attack in question took place and the intention of the attackers was
clear from what was stated during the attack which was to kill all. Thereafter
during the course of evidence these witnesses conveniently changed the said
part of their evidence by stating that PWs. 1&3 slept on the roof of the
pump house while the deceased slept on a cot under a tree. The reason for this
change, as observed by the High Court, is obvious because if they were sleeping
together and the intention of the accused as proclaimed was to kill all these
three then there would have been no occasions for these witnesses to escape the
attack. Therefore, obviously they had to find an explanation and for this
purpose they made the later statement that the deceased and the two eye
witnesses were sleeping separately. Apart from this, these witnesses have
stated that immediately on seeing the
on the deceased they ran away and hid themselves until next day morning being
afraid of the assailants. But then there is so much contradiction in regard to
the direction and the place the witnesses ran away that it creates a suspicion
as to their presence. PW1 says that he ran in the direction of river while PW2
says he ran in the direction of the hill which according to the defence are in
opposite directions. This apart, assuming they did hid themselves , there is
absolutely no explanation why these witnesses till about 8 O' clock in the
morning did not try to seek any help from sources available to them. It has
come in evidence that near about thrashing yard of PW-4 where the incident took
place, there were other thrashing yards where people were sleeping, therefore,
they could have easily sought help from them which was not done. Then again we
notice that the incident in question has taken place in the month of April, and
being summer month, we can take judicial notice of the fact which has been done
by the courts below that the sun rise would have been around 6 O' clock in the
morning. If that be so we find no explanation whatosever why these witnesses
did not go to their house or contact anybody upto 8 O' clock in the morning to
inform them of the incident in question.
act of PWs. 1&3 in informing the relatives and the villagers of the attack
only at 8 O'clock in the morning was obviously to
explain the delay in filing the FIR, which was lodged in the police stated
which was about 3 K.ms. away from the place of incident only at 8.15 O'clock in the morning. Here again in
regard to the lodging the complaint there is direct contradiction in evidence
of PWs 1 & 3. While one of the witnesses states they went straight from the
place of incident to the police station, the other states they went to the
village first to inform the relatives and then went to the police station. If
the evidence of these eye witnesses were otherwise believable for good reasons
some of the contradictions referred to hereinabove by us might not have damaged
the veracity of their evidence. But in the back ground of the defence as to the
falsity of PWs. presence, the existence of these contradictions makes a lot of
difference, more so when the prosecution has failed to explain the delay in
filing the complaint. This is because of the fact that according to the defence
the incident in question must have taken place without their being eye
witnesses, and when noticed in the morning a complaint was lodged after due
deliberation involving these accused persons.
noticed above the prosecution has also relied on certain recoveries made at the
instance of A-1. Firstly it is stated that the blood stained clothes worn by
the accused at the time of arrest were seized by the police . In regard to the
place from where these were seized , there is contradiction as to whether it
was taken off from the person of A-1 or was taken from a place where the
clothes were kept in his house. Be that it may the prosecution case is that
these clothes were blood stained though washed, still the stains were visible
hence was sent to chemical examination which has established the stains were of
the same was sent to Serologist who opined that he could not give an opinion as
to the origin of the blood meaning thereby the blood stain that was noticed by
him on the clothes cannot be said to be that of human origin. In such situation
this circumstance of recovery of blood stained clothes will be of no assistance
to the prosecution.
is the case in regard to recovery of an axe. In regard to this, witnesses for
the recovery say they found small stain of blood on it. The serologist in
regard to this blood also states that it is not possible to find out the origin
of the same. Therefore, even this recovery would not in any manner help the
prosecution in this case.
otherwise if the prosecution case in regard to Pws. 1& 3 are not acceptable
then these recoveries by themselves would not take the prosecution case any
this background if we consider the alleged motive, we notice that the
prosecution has stated that there was some theft in the house of PW-4 about a
month prior to the incident in regard to which PW-4 had complained to the
police blaming A-1's family. Police were investigating the said case, and this
was the motive for the murder. We notice according to the prosecution case
itself after the lodging of complaint and till the date of incident there has
been no untoward incident of any kind between the two families though they are neighbours.
In such a situation it is extremely difficult to accept that the respondent
herein would entertain a motive to eliminate the son of PW-4 for having made a
complaint against him or his family. Thus even the motive suggested, in our
view, is very weak. It is based on these facts available from the evidence of
the prosecution, the High Court rightly came to the conclusion that it was not
safe to base a conviction on the accused, hence it allowed the appeal.
agree with the said finding of the High Court and dismiss this appeal.