Chetu & ANR Vs.
State of M.P [2008] INSC 2212 (18 December 2008)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.132 OF 2007 Chetu
& Anr. ... Appellants Versus State of Madhya Pradesh ... Respondent
S.B. Sinha, J.
1.
This
Jail Appeal by appellants Chetu and Lalu, sons of Chintu, is directed against a
judgment and order dated 23.3.2006 passed by a Division Bench of the Madhya
Pradesh High Court whereby and whereunder an appeal preferred against the
judgment of conviction and sentence dated 19.9.1997 passed by the First
Additional Sessions Judge, Ashok Nagar, District Guna convicting them as also
their father Chintu under Section 302 and 342 of the Indian Penal Code and
sentencing them to undergo imprisonment for life and a fine of Rs.3,000/-, was
affirmed.
2.
The
deceased Godha was father of Prakash (PW3). The accused Chintu was his uncle.
The prosecution case
in brief is that when the complainant Prakash came back to his house from Ashok
Nagar, an altercation took place between Godha (the deceased) on the one hand
and Chintu, Chetu and Lalu on the other. Chintu was armed with an axe and the
appellants herein were armed with lathis. They began to assault Godha. They put
him in a room and locked him from outside. The portion of the house in which
Prakash and his father were living was set on fire by Chintu as a result
whereof the house was burnt. On enquiry from Jot Singh (PW11) and Navela (PW7),
Alfo (PW8) wife of Chintu disclosed that he had been put inside the room.
3.
The
First Information was lodged by Prakash on 29.9.1991 before the Assistant
Sub-Inspector, Ashok Nagar Police Station. On the basis of the said purported
information, the said Shri Mahesh Singh Shukla (PW12) procured the key from the
wife of Chintu and recovered the dead body. On completion of the investigation,
a charge sheet was filed. The case was committed to the Court of Sessions.
Whereas the charges
framed against accused No.1 were under Sections 436/302 and 342 of the Indian
Penal Code, the charges framed against accused Nos.2 and 3 were under
Sections436/34/302 and 342 of the Indian Penal Code.
4.
The
prosecution, in support of its case, examined 12 witnesses. All material
witnesses including the first informant - Prakash turned hostile.
His sister Lakshmibai
was examined as a defence witness.
5.
The
learned Sessions Judge principally relying on the evidence of Lalliram (PW5)
and Natha (PW6), and the other materials brought on record by the prosecution
including the evidence of Dr. Natwar Singh (PW9) and the Investigating Officer
(PW12) recorded a judgment of conviction and sentence.
6.
An
appeal preferred there against has been dismissed by the High Court by reason
of the impugned judgment, inter alia, opining :
4 "From the
evidence on record, it is clear that the deceased sustained several injuries
with deadly weapon. Due to these injuries, some of them were fatal, he died in
the night before any medical aid.
It also appears that
the body was recovered from the room of appellants and its key was in the
possession of Alphobai, wife of appellant Chintu.
According to
postmortem report, 19 injuries were found on the deceased."
7.
As
regards the witnesses who were declared hostile including PW3 and the panch
witnesses being Hartoom Singh (PW1), Rumal Singh (PW2) and Bribhan Singh (PW4)
as also Alfobai (PW8), Prakash (PW3) and Jot Singh (PW11), it was held :
"Regarding
hostile witness it is settled law that in case of hostile witness the whole
testimony cannot be discarded and we can gather truth out of false.
Deceased and
appellants were closely related with complainant Prakash and his sister
Laxmibai (DW1) who was residing with appellant Chintu.
Therefore, due to
natural love and affection they did not come with open mouth. Considering the
ocular evidence available in the case and supported by medical evidence and
looking to the circumstances of the case, we have no doubt in our mind that on
the date of incident appellants inflicted injuries to the deceased by deadly
weapons and injuries were fatal which caused the death of Godha
(deceased)."
8.
The
High Court held that it was a clear case of murder which came within the
purview of the clause `thirdly' of Section 300 of the Indian Penal 5 Code as
the prosecution has proved that accused caused injury to the deceased which was
sufficient to case death in the ordinary course of nature.
The deceased was also
wrongfully confined by them.
9.
PW3,
Prakash, the First Informant, in his evidence stated that the deceased reached
the village in a drunken state. He was in an injured condition. According to
him, as some hooligans were following him, it was he who had locked him in the
room thinking that they would not be able to find him out. The hooligans,
however, came to his house and put it on fire.
He was declared hostile.
10.
The
learned Public Prosecutor in his cross-examination although proved his
signature on the First Information but the contents therein were not proved. He
denied and disputed that he had made any statement to the effect that after his
father came, he had asked Dadji Chintu to transfer his portion of land in his
name. He also denied to have made the statement in the First Information
Report, the manner in which the deceased was said to have been assaulted by the
accused. The prosecution, as noticed hereinbefore, inter alia, relied upon the
evidence of one Natha who in his cross-examination stated as under:
"I know all the
accused who are present in the court. Four years ago, there was a fighting
between Godha and Chetu, Chintu and Lallu in front of my door. It was about 9
p.m. Chetu and 6 Lallu pulled away Godha in their house. After that screams of
Chintu, Chetu and Lallu, who are heard. I was ill at that time. In the morning
villagers inform that Godha was dead."
11.
He,
therefore, did not see the actual occurrence. In his cross- examination, he
stated that he did not remember as to whether the night was dark or bright.
According to him he had only heard the screams from his house. He did not hear
any conversation between the deceased and accused persons. He did not interrupt
them. He did not tell them anything. Nobody also told him anything about the
incident. Acording to him, the Investigating Officer did not record his
statement. He did not see any person in the village. He did not go to the
police and the police had not recorded any statement till the date of his
examination before the Court. He denied to have made any statement before the
police. He accepted that accused persons had encroached his lands although the
accused promised to give back his land, they did not fulfill the promise.
Evidence of this witness, therefore, could not have been relied upon for more
than one reason. Firstly, because he did not see the occurrence; secondly
because there was no reason as to why the police did not record his statement.
Enmity between him
and the appellant was also proved.
12.
Navela
(PW7), in his deposition, stated that at about 9 pm, he heard a noise of
quarrel through `Kharanja'. Having heard the sound of lathis, he came out and
saw that Chintu, Chetu and Lallu were taking the dead body of Godha into their
house. After seeing this, he hid himself in his room (paur). Accused persons
put the dead body of Godha in the house and started abusing the neighbours. He
saw fire at Godha's house. He did not know where the accused persons had gone.
In his cross examination, he stated that he has no enmity with the accused
persons for the last eight to ten years and that there is no groupism in their
village.
PW7, in his
statement, categorically stated that he had not disclosed about his being a
witness to the occurrence to anybody. According to him, he was asked by the
Police Officer to give statement `as per record' in his own words. He was asked
by them to which they answered in the affirmative. He, like PW6, was also ill and
had been staying in his house.
13.
Dr.
Natwar Singh found a large number of injuries on the person of the deceased -
four injuries were found on left leg, three on the left hand, three on the
right leg and eight on the right forehand. There was no injury on the vital
part of the body. No injury was found which could have been caused by any hard
and blunt substance. A pointed wound was found which could have been caused
either by lathi or axe which are said to be used for 8 the commission of
crime. Most of the wounds were bluish. Autopsy of the dead body took place on
30.9.1991.
We have noticed
hereinbefore that all panch witnesses were declared hostile. The veracity of
the entire prosecution case should have been considered by the learned Trial
Judge as also the High Court, keeping in view the aforesaid backdrop of events.
14.
Another
aspect of the matter must be borne in mind. The accused and the deceased being
closely related had a common boundary between their houses which are situated
side by side. It is wholly unlikely that they would put fire to their own
house.
15.
The
approach of the learned Sessions Judge as also the High Court cannot be
appreciated. Despite the clear discrepancies in the evidence of so called
eye-witnesses which we have noticed hereinbefore, the High Court, in our
opinion, committed a serious error in holding that as the defence could not
prove its case, the prosecution must be held to have proved its case. The
impugned judgment, therefore, cannot be sustained. It is set aside accordingly.
16.
The
appeal is allowed. Appellants are directed to be set at liberty unless wanted
in connection with any other case.
.....................................J.
[S.B. Sinha]
....................................J.
[Cyriac Joseph]
New
Delhi;
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