Marwadi and Others vs State of Madhya Pradesh (Now State of Chhattisgarh)

T.P. Sharma, J.—Challenge in this appeal is to the judgment of conviction & order of sentence dated 19-9-1994 passed by the 2nd Additional Sessions Judge, Ambikapur in Sessions Trial No. 273/89, whereby & whereunder learned Additional Sessions Judge after holding the appellants guilty for formation of unlawful assembly armed with deadly weapons having its common object to culpable homicide amounting to murder and in furtherance of common object of the assembly for committing the murder of Rajaram, convicted the appellants under Sections 147, 148 & 302 read with Section 149 of the IPC and sentenced them to undergo RI for one year, RI for one year and imprisonment for life, respectively. Conviction is impugned on the ground that without any iota of evidence and admissible evidence, the trial Court has convicted & sentenced the appellants and thereby committed illegality.

As per case of the prosecution, on the fateful day of 7-12-1987 at about 9 a.m. unfortunate deceased Rajaram was working in the field situate at Parsa Nakhi Khar, Village Bakmer, Police Station Ambikapur, along with other persons which was owned by Navapariha; appellants Malar Ram Uraon & Marwadi (since deceased) came to the field; other appellants Sonsai, Nainsukh, juvenile offenders Bulkan, Mukund & Mansukh accompanied them; Malar Ram was holding axe, Marwadi was holding betel axe and remaining accused were holding sticks; appellants Malar Ram & Marwadi came near Rajaram whereas remaining accused stayed at some distance. Rajaram requested both the persons that he is ready to receive punishment which they will give, but not to kill him, he requested with folded hands, but on account of land dispute, Malar Ram attacked Rajaram by axe over his head which Rajaram saved, thereafter, Marwadi assaulted Rajaram by betel axe over his head and caused fatal injuries. Rajaram fell down then. Malar Ram & Marwadi went back and fled away from the spot. Other accused/appellants also accompanied them. Rajaram was badly injured and was unconscious. Other persons namely Malik, Prithvinath & Asharam immediately took him to Government Hospital, Ambikapur.

After some time, Ambikapur police came to the spot whom Rampati (PW-1) lodged dehati nalsi vide Ex. P-1 at 1 p.m. FIR was recorded on the basis of dehati nalsi. Injured Rajaram was examined at about 11.45 a.m. by Dr. R.K. Bajaj (PW-7) who intimated the police vide Ex. P-14 at 1.15 p.m. and on the basis of information Ex. P-14, the police came to the hospital and gave requisition for examination of Rajaram vide Ex. P-21. Dr. R.K. Bajaj (PW-7) noticed incised wound of 4" x 1/2" x bone deep over middle of head, bone beneath the injury was found cut, part of brain came out from the injury badly stained with blood and active bleeding; bruise over forehead of 3" x 3"; and swelling of 2" x 2" over right parietal region. Rajaram was semi-conscious. He was advised for X-ray. He was admitted in the hospital for immediate treatment. During the course of treatment, he died on second day at 12.05 p.m. Death of Rajaram was intimated to the police vide Ex. P-22 and the police recorded morgue intimation vide Ex. P-23. After summoning the witnesses, inquest over the dead body was prepared vide Ex. P-12. Dead body was sent for autopsy to District Hospital, Ambikapur. Dr. P.K. Banerjee (PW-15) conducted autopsy vide Ex. P-19 and found treated and stitched injuries of 7" over head with swelling on edges. Injuries were ante mortem in nature. Depressed fracture of parietal bone, blood inside brain under scalp from frontal to occipital and both sides'' temporal regions with fracture of sagital suture 7" in length extending from frontal bone to occipital bone. He has not noticed other adverse thing. Mode of death was shock. After recording dehati nalsi on 7-12-1987, the Investigating Officer took appellant Malar Ram into custody, he made discloser statement of axe vide Ex. P-2 on 7-12-1987 and same was recovered at the instance of Malar Ram vide Ex. P-3. Appellant Marwadi (since deceased) made discloser statement of small betel axe vide Ex. P-4 and same was seized at his instance vide Ex. P-5. Appellant Sonsai also made discloser statement of stick vide Ex. P-6 and same was recovered at his instance vide Ex. P-7. Mansukh made discloser statement of stick vide Ex. P-8 and same was recovered at his instance vide Ex. P-9. Bulkan made discloser statement of stick vide Ex. P-10 and same was recovered at his instance vide Ex. P-11. Sealed clothes of the deceased were seized vide Ex. P-15. Bed head ticket was seized vide Ex. P-16. Statement of the witnesses were recorded u/s 161 of the CrPC. Spot map was prepared vide Ex. P-24.

After completion of investigation, charge sheet was filed before the Court of Chief Judicial Magistrate, Ambikapur, who committed the case to the Court of Sessions, Ambikapur from where learned Additional Sessions Judge received the case on transfer for trial. Charge sheet of juvenile offender was filed before the Juvenile Justice Board.

In order to prove the guilt of the accused/appellants, the prosecution has examined as many as eighteen witnesses. The accused persons were examined u/s 313 of the CrPC in which they denied the circumstances appearing against them and pleaded innocence & false implication. They have examined defence witnesses Biruch (DW-1) & Ramlal (DW-2) and have taken defence that at the time of incident, Rampati (PW-1) was not present on the spot, he was at school.

After providing opportunity of hearing to the parties, learned Additional Sessions Judge, convicted & sentenced the appellants in the aforesaid manner.

We have heard learned counsel for the parties, perused the judgment and record of the trial Court.

Learned counsel for the appellants vehemently argued that in the present case, the prosecution has concealed material evidence and material documents, even it has concealed the first information report. FIR has not been intimated to the Magistrate u/s 157 of the CrPC. The investigating agency has committed grave illegality and caused serious prejudice to the appellants. Even the prosecution has not examined the Investigating Officer and the defence has been denied the opportunity and right of its cross-examination. In absence of first information report, evidence of the Investigating Officer, intimation to the Magistrate u/s 157 of the CrPC and hide & seek tendency of the prosecution, no definite inference would be possible that as to who has caused homicidal death of Rajaram, whether the appellants have formed unlawful assembly and were knowing the object of the unlawful assembly. There is inconsistency in ocular and medical evidence and even there is inconsistency of two doctors relating to injuries. As per Dr. R.K. Bajaj (PW-7) and his medical examination report Ex. P-13, he has first examined the injured and noticed three injuries, but second day when autopsy was conducted by Dr. P.K. Banerjee (PW-15) vide Ex. P-19, he has noticed only one injury. As per Ex. P-13 & Dr. R.K. Bajaj (PW- 7), size of injury found over head of the injured was 4" x 1/2" x bone deep, but in autopsy report, size of the injury was mentioned as 7" in length, about double. The prosecution was under obligation to prove its case beyond all reasonable doubts and the defence was only required to raise doubt on case of the prosecution. In the present case, entire prosecution case is full of doubt and no definite opinion would be possible, there is false story; who is truthful witness, who is wholly reliable witness and who is partially reliable witness is not clear. Even as per case of the prosecution and evidence of the prosecution, only appellant Marwadi (since deceased) has caused fatal injuries resulting in death of the deceased. Marwadi died during the pendency of appeal. In absence of any evidence against other appellants namely Malar Ram, Sonsai & Nainsukh, they are entitled for acquittal.

Learned counsel for the appellants placed reliance in the matter of Mahabir Singh Vs. State, in which the Delhi High Court has held that motive to commit the crime is a double edged weapon. If it can be a ground to commit a crime, it can also be an equally good reason to falsely inculpate innocent persons. The evidence, therefore, requires to be scanned with a note of caution. The Delhi High Court has further held that non-compliance of Section 157 of the CrPC bound to cast shadow on the prosecution case. Learned counsel further placed reliance in the matter of Gabbu and Others Vs. State of Madhya Pradesh, in which the Madhya Pradesh High Court has held that in absence of proof of sending copy of FIR to the Magistrate, possibility of FIR ante-dated cannot be ruled out. The Madhya Pradesh High Court has further held that non-disclosure of incident before police or any other person keeping silence for long period by eye witness, his entire evidence is liable to be discarded being abnormal. Learned counsel also placed reliance in the matter of Ramcharan and etc. Vs. State of Chhattisgarh, in which this Court has held that suppression of origin and genesis of offence by prosecution, discrepancies about the time of incident and FIR, first on the point of time on the basis of which police authority reached place of occurrence and took complainant to police station suppressed, conviction is not sustainable. Learned counsel relied upon the matter of Arjun Marik and Others Vs. State of Bihar, , in which the Supreme Court has held that noncompliance of the provisions of Section 157 of the CrPC and non-sending of intimation forthwith lead to the conclusion that the FIR had been recorded much later than one as shown in the said documents. Learned counsel further relied upon the matter of Tulshiram Bhanudas Kambale and others Vs. The State of Maharashtra, , in which the Bombay High Court has held that non-sending of intimation u/s 157 of the CrPC casts doubt and gives presumption that the FIR was ante-dated. Learned counsel also relied upon the matter of Nankun and Others Vs. State of M.P. (Now C.G.), in which this Court has held that if some accused were acquitted on the basis of same set of evidence, other accused are also entitled for same treatment and entitled for acquittal.

On the other hand, learned State counsel vehemently opposed the appeal and submitted that there is some discrepancy and laches in investigation, but same are not sufficient to discard the testimony of eyewitnesses or not sufficient for discarding entire evidence of the prosecution witnesses. Even faulty investigation or interested investigation is not sufficient to discard case of the prosecution, erring officer may be taken into task and sufficient action may be taken against erring officer. Learned State counsel further submitted that evidence of Rampati (PW-1) who has lodged dehati nalsi, Devnarayan (PW-13) & Om Prakash (PW-14) is sufficient to establish the fact that the appellants have formed unlawful assembly having its common object to kill Rajaram and in furtherance of common object, members of unlawful assembly i.e. the appellants herein along with other juvenile offenders have committed homicidal death amounting to murder of Rajaram. After appreciating evidence available on record, the trial Court has rightly convicted and sentenced the appellants as aforementioned.

In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the parties.

In the present case, the appellants have not disputed injuries found over the body of Rajaram but have tried to dispute his homicidal death as a result of such injuries on the ground of inconsistency in medical evidence. As per evidence of Dr. R.K. Bajaj (PW-7) and his report Ex. P- 13, three injuries were found over the body of the deceased. As per autopsy report Ex. P/19 and evidence of Dr. P.K. Banerjee (PW-15), one injury was found over head of the deceased. Size of the injury was different in Ex. P-13 and Ex. P-19. Dr. R.K. Bajaj (PW-7) has examined Rajaram at 11.45 a.m. and intimated to the police vide Ex. P-14 at 1.15 p.m. Police came at about 3.10 p.m. and gave requisition for examination of the deceased vide Ex. P-21 on which Dr. R.K. Bajaj (PW- 7) noted the injuries sustained by the deceased on back side of requisition, vide Ex. P-13. Police has seized the bed head ticket which was primary evidence in the case, but for the reasons best known to the prosecution it has not proved such bed head ticket. Defence has cross-examined Dr. R.K. Bajaj (PW-7) but has not suggested anything that he has not found aforesaid three injuries on the person of the deceased and has concocted the document Ex. P-13. In other words, his evidence appears to be natural, he has categorically deposed that he has examined Rajaram at 11.45 a.m., he has sent intimation at 1.15 p.m. to the police vide Ex. P-14 and when the police came and provided requisition Ex. P-21, he has mentioned injuries found over the body of Rajaram on the document Ex. P-13. In absence of any adverse suggestion, we are not inclined to reject or discard the evidence of Dr. R.K. Bajaj (PW-7) on the ground that he has mentioned the injuries in Ex. P-13 on the basis of his previous report, especially when he had treated the injured at hospital at 11.45 a.m. and also at 3.10 p.m.

Dr. P.K. Banerjee (PW-15) has specifically deposed that he has noticed injury over head of the deceased of 7" in length but in Ex. P-13, length of injury was mentioned as 4". Notable thing is that as per evidence of Dr. P.K. Banerjee (PW-15), he has noticed stitched/treated injury, fracture and deposit of blood beneath the injury.

At the time of surgical treatment, definitely, length of injury caused and length of wound could not be one and same, there may be considerable change in dimension, on this ground evidence of Dr. P.K. Banerjee (PW- 15) cannot be discarded. He has also noticed swelling over head of the deceased which has also been noticed by Dr. R.K. Bajaj (PW-7). Dr. P.K. Banerjee (PW-15) has not noticed another injury i.e. bruise found over forehead. Only on this ground, his evidence cannot be discarded. Evidence of both the doctors is natural, inspires confidence and same were sufficient to establish that death of Rajaram was homicidal in nature.

As regards complicity of the appellants in the crime in question, conviction is substantially based on evidence of Rampati (PW-1), Devnarayan (PW-13) & Om Prakash (PW-14).

In the present case, the prosecution has not examined the investigating officer and has not proved the so called FIR registered in Crime No. 832/87. The alleged dehati nalsi Ex. P-1 has been recorded at 1 p.m. On perusal of evidence of Rampati (PW-1), Devnarayan (PW-13) & Om Prakash (PW-14), Dr. R.K. Bajaj (PW-7), Prithvinath (PW-4) & Aashram (PW-5), it clearly reveals that after receiving intimation Ex. P-14, the police officer reached to the hospital and served requisition Ex. P-21, and simultaneously they proceeded for the spot. Intimation recorded on the basis of Ex. P-14 would be the FIR which is a brief description of the person admitted in the hospital, but detailed information relating to the incident finds place in dehati nalsi Ex. P-1 alleged to have been recorded at 1 p.m. Normally, there cannot be more than one FIR but if police receives any information by telephone i.e. brief information that some incident took place, without any details and if the person who witnessed the incident gives detailed information thereafter, same can be treated as FIR.

While dealing with the validity of second FIR, the Supreme Court in T.T. Antony Vs. State of Kerala and Others, , has held that there can be no second FIR and consequently there can be no fresh investigation in respect of the same cognizable offence or same occurrence giving rise to one or more cognizable offences. Paras 17 & 18 of the said judgment read thus,

Sub-section (1) of Section 154 CrPC contains four mandates to an officer in-charge of a police station. The first enjoins that every information relating to commission of a cognizable offence if given orally shall be reduced to writing and the second directs that it be read over to the informant; the third requires that every such information whether given in writing or reduced to writing shall be signed by the informant and the fourth is that the substance of such information shall be entered in the station house diary. It will be apt to note here a further directive contained in sub- (1) of Section 157 CrPC which provides that immediately on receipt of the information the officer in charge of the police station shall send a report of every cognizable offence to a Magistrate empowered to take cognizance of the offence and then proceed to investigate or depute his subordinate officer to investigate the facts and circumstances of the case. Sub-section (2) entitles the informant to receive a copy of the information, as recorded under sub-section (1), free of cost. Sub-section (3) says that in the event of an officer in charge of a police station refusing to record the information as postulated under sub-section (1), a person aggrieved thereby may send the substance of such information in writing and by post to the Superintendent of Police concerned who is given an option either to investigate the case himself or direct the investigation to be made by a police officer subordinate to him, in the manner provided by CrPC, if he is satisfied that the information discloses the commission of a cognizable offence. The police officer to whom investigation is entrusted by the Superintendent of Police has all the powers of an officer in charge of the police station in relation to that offence.

An information given under sub-section (1) of Section 154 CrPC is commonly known as First Information Report (FIR) though this term is not used in the Code. It is a very important document. And as its nick name suggests it is the earliest and the first information of a cognizable offence recorded by an officer in charge of a police station. It sets the criminal law in motion and marks the commencement of the investigation which ends up with the formation of opinion u/s 169 or 170 CrPC, as the case may be, and forwarding of a police report u/s 173 CrPC. It is quite possible and it happens not infrequently that more information''s than one are given to a police officer in charge of a police station in respect of the same incident involving one or more than one cognizable offences. In such a case he need not enter every one of them in the station house diary and this is implied in Section 154 CrPC. Apart from a vague information by a phone call or a cryptic telegram, the information first entered in the station house diary, kept for this purpose, by a police officer in charge of a police station is the First Information Report-FIR postulated by Section 154 CrPC. All other information''s made orally or in writing after the commencement of the investigation into the cognizable offence disclosed from the facts mentioned in the first information report and entered in the station house diary by the police officer or such other cognizable offences as may come to his notice during the investigation, will be statements falling u/s 162 CrPC. No such information/statement can properly be treated as an FIR and entered in the station house diary again, as it would in effect be a second FIR and the same cannot be in conformity with the scheme of CrPC. Take a case where an FIR mentions cognizable offence u/s 307 or 326 IPC and the investigating agency learns during the investigation or receives fresh information that the victim died, no fresh FIR u/s 302 IPC need be registered which will be irregular; in such a case alteration of the provision of law in the first FIR is the proper course to adopt. Let us consider a different situation in which H having killed W, his wife, informs the police that she is killed by an unknown person or knowing that W is killed by his mother or sister, H owns up the responsibility and during investigation the truth is detected; it does not require filing of fresh FIR against H-the real offender-who can be arranged in the report u/s 173 (2) or 173 (8) Cr PC, as the case may be. It is of course permissible for the investigating officer to send up to a report to the Magistrate concerned even earlier that investigation is being directed against the person suspected to be the accused.

While dealing with same question, the Supreme Court in the matter of Kari Choudhary Vs. Most. Sita Devi and Others, , has held that there cannot be two FIRs against the same accused in respect of the same case. But when there are rival versions in respect of the same episode, they would normally take the shape of two different FIRs and investigation can be carried on under both of them by the same investigating agency. Para 11 of the said judgment reads thus,

Learned counsel adopted an alternative contention that once the proceeding initiated under FIR No. 135 ended in a final report the police had no authority to register a second FIR and number it as FIR 208. Of course the legal position is that there cannot be two FIRs against the same accused in respect of the same case. But when there are rival versions in respect of the same episode, they would normally take the shape of two different FIRs and investigation can be carried on under both of them by the same investigating agency. Even that apart, the report submitted by the Court styling it is as FIR No. 208 of 1998 need be considered as an information submitted to the Court regarding the new discovery made by the police during investigation that persons not named in FIR No. 135 are the real culprits. To quash the said proceeding merely on the ground that final report had been laid in FIR No. 135 is, to say the least, too technical. The ultimate object of every investigation is to find out whether the offences alleged have been committed and, if so who have committed it.

While dealing with same question, the Supreme Court in the matter of Ramesh Baburao Devaskar and Others Vs. State of Maharashtra, has held that in case of cryptic message not disclosing the identity and other requirements to satisfy the requirement of Section 154 of the Cr.P.C., the information regarding commission of offence may be recorded. When, however, the First Information Report is lodged by a person who claims himself to be aware of not only the commission of that offence, the name of the deceased and at least one of the accused who had committed the same, that could have been recorded on the basis thereof. Para 11 of the said judgment reads as follows:-

Lodging of a First Information Report is necessary for setting the criminal law in motion. It can be lodged by anybody. It, however, should not be too sketchy so as to make initiation of investigation on the basis thereof impossible. Only information in regard to commission of an offence may not for all intent and purport satisfy the requirement of the First Information Report. When, however, the First Information Report is lodged by a person who claims himself to be aware of not only the commission of the offence, the name of the deceased and at least one of the accused who had committed the same, that could have been recorded on the basis thereof. It may, however, be another thing to say that any information in regard to the commission of an offence is given by way of a telephone or by a person who does not disclose his identity and such message is so cryptic that it may not satisfy the requirement of Section 154 of the Code of Criminal Procedure. [Se Om Prakash @ Raja Vs. State of Uttaranchal, .

While dealing with same question relating to recording of subsequent FIR, the Supreme Court in the matter of Nirmal Singh Kahlon Vs. State of Punjab and Others, , has held that the second FIR would be maintainable when new discovery is made on factual foundations. Para 59 of the said judgment reads thus,

The second FIR, in our opinion, would be maintainable not only because there were different versions but when new discovery is made on actual foundations. Discoveries may be made by the police authorities at a subsequent stage. Discovery about a larger conspiracy can also surface in another proceeding, as for example, in a case of this nature. If the police authorities did not make a fair investigation and left out conspiracy aspect of the matter from the purview of its investigation, in our opinion, as and when the same surfaced, it was open to the State and/or the High Court to direct investigation in respect of an offence which is distinct and separate from the one for which the FIR had already been lodged.

As per the dicta of the Supreme Court in the aforesaid authorities, normally there cannot be two FIRs against the same accused in respect of the same case, but when there are rival versions in respect of the same episode they would normally take the shape of two FIRs and investigation can be carried on under both of them by the same investigating agency.

In the present case, the prosecution has not proved the fact that the FIR has been intimated to the Magistrate forthwith. Even the prosecution agency has not proved the fact whether any intimation has been sent to the Magistrate or not. Non-sending of intimation u/s 157 of the CrPC by itself is not sufficient to discard the entire evidence or the case of the prosecution.

As held in the matters of Mahabir Singh (supra), Gabbu B. Lodhi (supra), Ramcharan (supra), Arjun Marik (supra) and Tulshiram Bhanudas (supra), only inference would be possible that the provisions of Section 157 of the CrPC have not complied with and the FIR may be ante-dated.

Purpose of Section 157 of the CrPC is to make acquainted the Magistrate having jurisdiction to take cognizance of the offence. Order sheet dated 9-12-87 of the Chief Judicial Magistrate clearly reveals that on 9-12-87 the accused were produced before him and he had seen the case diary. In absence of other evidence, this order sheet may be treated as intimation of the commission of offence. The order sheet does not reveal that original FIR was not produced. Therefore, even non-compliance of Section 157 of the CrPC is not fatal to the prosecution.

While dealing with the question of non-examination of investigating officer, the Supreme Court in the matter of Behari Prasad etc. etc. Vs. State of Bihar, , has held that non-examination of investigating officer does not per se vitiate the trial, if involvement of accused in committing murder is established by evidences of eyewitnesses being in conformity with case made out in the FIR and medical evidence, non-examination of the investigating officer is not fatal to the prosecution case.

Much stress has been laid in recording of FIR by the police. Present case reveals that the investigating officer was informed by the doctor vide Ex. P-14 which reveals that deceased Rajaram is admitted in hospital in injured condition. It does not disclose the commission of any offence, it is a cryptic information. Other witnesses have also deposed that they have informed the police, but evidence clearly reveals that for the first time, Ex. P-1 was recorded at 1 p.m. by the police on the spot at the instance of Rampati (PW-1) in the shape of dehati nalsi which discloses the commission of cognizable offence with detailed description. In these circumstances, any cryptic information received by the police cannot be treated as FIR, even if it is treated as FIR, second FIR giving detailed description is not illegal.

While considering legality of second FIR, the Supreme Court in the matter of Damodar Vs. State of Rajasthan, , has held that cryptic information would not constitute the FIR and the written report lodged by eye-witness is not hit by Section 162 of the CrPC, same would be the FIR.

While dealing with same question, the Supreme Court in Kari Choudhary''s case (supra) has held that in case of two different FIRs and rival contentions of FIRs, investigation on the basis of second detailed FIR is permissible. In the present case, in the light of aforesaid preposition of law, dehati nalsi Ex. P-1 can only be treated as FIR.

Non-examination of informant of FIR is not fatal to the prosecution and would not also be ground of acquittal if the case is otherwise proved. While dealing with the question of circumstances of non-proving of FIR, the Supreme Court in Krishna Mochi and Others Vs. State of Bihar, , has held that non-examination of informant, FIR though not admissible in evidence on that ground, it would not also be ground of acquittal of accused, if offence is otherwise proved.

In the present case, there are some laches and defects in investigation and prosecution. The prosecution and the investigating agency are under obligation to investigate and prosecute the offence bona fidely. However, some laches or defects or reluctance in investigation and prosecution may be condemnable to the agency but could not be sufficient to discard the evidence of witnesses or to reject the evidence or to acquit the accused, if the offence is otherwise established by cogent evidence.

The prosecution has not examined the investigating officer and has not placed reliance on evidence of the investigating officer. Definitely, the prosecution was under obligation to examine the investigating officer to prove its case. Conviction is based on evidence of eyewitnesses. Non-examination of investigating officer by itself is also not fatal to the prosecution. Even otherwise, if it was necessary for the defence to establish its case/defence or to examine the investigating officer for throwing doubt on the case of the prosecution, defence was not precluded from examining the investigating officer. Therefore, non-examination of the investigating officer is not fatal in this case. In these circumstances, only the evidence of Rampati (PW-1), Devnarayan (PW-13) & Om Prakash (PW-14) remains for consideration.

Rampati (PW-1) has deposed in detail that at the time of incident, the appellants rushed to the field, Malar Ram was holding stick, Marwadi (since deceased) was holding small betel axe and others were holding sticks. Firstly, all accused tried to attack Rajaram who was preventing himself, Marwadi attacked Rajaram by betel axe and caused injury over head, thereafter, other three appellants along with Marwadi fled away from the spot. Rajaram fell down and became unconscious. Defence has cross-examined this witness in detail, but has not suggested anything that at the time of incident he was not present on the spot and was present in his school, though the defence has asked in para 5 of his cross-examination relating to school time and distance of school from his house.

The prosecution has examined Rampati (PW-1) on 20-4-92. After more than 2 1/2 years, on 2-9-94, defence has examined two witnesses namely Biruch (DW-1) & Ramlal (DW-2) who have deposed that on the date of incident, Rampati (PW-1) had gone to school and, therefore, he was not present on the spot. In absence of any such suggestion to Rampati (PW-1), evidence of Biruch (DW-1) & Ramlal (DW-2) that too after more than 21/2 years of such examination and after seven years of incident does not prima facie, inspires confidence. Therefore, no reliance can be placed upon their evidence.

Evidence of Rampati (PW-1) is corroborated by evidence of Devnarayan (PW-13) & Om Prakash (PW-14) who have further deposed that Malar Ram was holding axe, he firstly attacked Rajaram by axe, but Rajaram saved himself, thereafter, Marwadi (since deceased) assaulted Rajaram by small betel axe (baluva). Both these witnesses have clearly deposed that at the time of incident, two appellants namely Marwadi (since deceased) & Malar Ram had attacked Rajaram (since deceased), they were nearer to Rajaram, but other accused persons were awaiting from a considerable distance, they were holding sticks and were standing after two fields, after causing effective injury by Marwadi when Marwadi & Malar Ram fled away, other appellants also fled away from the spot. Defence has cross-examined these witnesses at length, but has not been able to elicit anything in their cross-examination to discredit their testimony to the extent that Malar Ram & Marwadi had not reached near Rajaram, effective injury has not been caused by Marwadi, Malar Ram was not holding axe or stick or both, other accused were not standing at reasonable distance from Rajaram and after the incident, the appellants have not fled from the spot. There is inconsistency, discrepancy and exaggeration in their evidence relating to other parts. Evidence of Prithvinath (PW-4), Aashram (PW-5), Devnarayan (PW-13) & Om Prakash (PW-14) are contradictory to each other to some extent, even relating to accompanying injured Rajaram to hospital and accompanying the police up to the spot.

Prithvinath (PW-4) is also witness of memorandum and seizure of Malar Ram and other appellants. Statement u/s 27 of the Evidence Act of Malar Ram was recorded on 7-12-87 at 7 p.m. This witness has clearly supported the factum of such statement in his evidence. In para 21 of his evidence, he has specifically deposed that on 7-12-87 only Malar Ram was interrogated and others were interrogated on second day i.e. 8-12-87. This part of evidence has also not been disputed by the defence that Malar Ram was not in active control of police on 7-12-87 and he was not interrogated. This also supports case of the prosecution that after receiving information of commission of cognizable offence, the police immediately rushed to the spot, recorded dehati nalsi of Rampati (PW-1) and investigated the matter.

These witnesses have also admitted in their cross-examination that although Sonsai & Nainsukh were standing away from the spot, but they have not rushed for causing injury. Active presence and cause of the act attributed to Malar Sai also finds place in dehati nalsi Ex. P-1 and well corroborated by evidence of Devnarayan (PW-13) & Om Prakash (PW-14).

On close scrutiny of evidence of aforesaid witnesses, it reveals that the prosecution has succeeded to the extent of proving the fact that appellants Malar Ram & Marwadi (since deceased) had actively participated in the commission of offence, they were holding weapons, they reached near Rajaram, first attempt was made by Malar Ram and second injury was caused by Marwadi. Injuries found over the body of Rajaram were sufficient for causing his death. Other appellants were standing far away from the actual place of incident, they had not actively participated in the incident, only their presence from considerable distance is not sufficient to establish that they have formed unlawful assembly having its common object to commit murder of Rajaram. Even they were not in a position to hear the conversation between Rajaram and the two appellants, what transpired between appellants Marwadi & Malar Ram and the deceased. Therefore, mere presence near the spot from reasonable distance by itself is not sufficient to constitute that they have formed unlawful assembly and that they were having definite knowledge of the common object of unlawful assembly.

The prosecution was under obligation to prove its case beyond reasonable doubts, but the investigating agency has not investigated the offence in proper manner. Even at the time of prosecution, the prosecution has not taken proper care and they were reluctant, even to prove the primary documents and the documents which may be available, but only on the ground of faulty investigation or fault in evidence of the prosecution witnesses, their evidence cannot be discarded or their evidence cannot be out rightly rejected. The Court is required to scrutinize the evidence and if found reliable, then it has to accept the evidence.

While dealing with the question of faulty/defective investigation, the Supreme Court in the matter of C. Muniappan and Others Vs. State of Tamil Nadu, , has held that defect in the investigation by itself cannot be a ground for acquittal. Investigation is not the solitary area for judicial scrutiny in a criminal trial. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. The Supreme Court has observed in para 55 as follows:-

There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the IO and whether due to such lapse any benefit should be given to the accused. The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation.

Evidence of Rampati (PW-1), Devnarayan (PW-13), Om Prakash (PW-14) and dehati nalsi Ex. P-1 is sufficient to establish the fact that appellants Marwadi (since deceased) & Malar Ram, in sharing common intention, have committed culpable homicide amounting to murder of Rajaram.

As held by the Delhi High Court in Mahabir Singh''s case (supra), motive to commit the crime is a double edged weapon. If it can be a ground to commit a crime, it can also be an equally good reason to falsely inculpate innocent persons. The evidence, therefore, requires to be scanned with a note of caution. In the present case, motive for commission of offence is old enmity which is not disputed and same is well corroborated by evidence of Rampati (PW-1), Devnarayan (PW-13) & Om Prakash (PW-14) that in furtherance of such intention/motive, the incident took place.

As held by this Court in Nankun''s case (supra), if some accused were acquitted on same set of evidence, others are also entitled for equal treatment. In the present case, other accused persons have not been acquitted on same set of evidence, but on the ground of insufficiency of evidence. The case of Nankun (supra) is distinguishable on facts to that of the present case.

While convicting and sentencing the appellants in the aforesaid manner, the trial Court has not considered evidence, evidentiary value of the evidence relating to formation of unlawful assembly and knowledge of common object of unlawful assembly, and thereby committed illegality. For the foregoing reasons, the appeal is partly allowed.

(a) Conviction & sentences imposed upon appellants Sonsai & Nainsukh under Sections 147, 148 & 302 read with Section 149 of the IPC are hereby set aside, and they are acquitted of the said charges.

(b) Conviction & sentences imposed upon appellant Malar Ram under Sections 147 & 148 of the IPC are hereby set aside and he is acquitted of the said charges.

(c) Conviction of appellant Malar Ram u/s 302 read with Section 149 of the IPC is altered to Section 302 read with Section 34 of the IPC, however, sentence of imprisonment for life imposed upon him is hereby maintained.

(d) Malar Ram is on bail, he shall surrender immediately before the Court of 2nd Additional Sessions judge, Ambikapur or its successor-in-office for serving remaining sentence.